Secession Becomes Thinkable

American Secession: The Looming Threat of a National Breakup; by F. H. Buckley; Encounter Books; 184 pp., $23.99

 

When asked whether a state can constitutionally secede from the United States, Supreme Court Justice Antonin Scalia brushed the question aside, saying the matter was settled by the Civil War.

He was wrong. A Zogby poll in 2018 found that 39 percent of likely voters, including 42 percent of Democrats, believed that states have a right to secede, while 29 percent were not sure. That means 68 percent of voters were willing to consider what for Scalia was unthinkable. In recent years, some legal scholars also have come to realize they cannot let the Civil War define their thinking about secession.

One of these is Frank Buckley, a professor at George Mason University’s Antonin Scalia Law School. In his recent book he argues that America is coming apart. “Washington has become the seat of a sclerotic society of special interests, hobbling the rest of us with wealth-destroying rules,” he writes. “The extremism has gone mainstream, and the oracles of respectable liberalism now embrace the vilest left-wing extremists.”

Among those extremists are Black Lives Matter and Antifa, shock troops of a Democratic Party that has embraced the mantra that America is systemically white supremacist. These leftist thugs are allowed to deface and topple monuments to America’s complex national identity while police are ordered to stand down. The two political parties are divided not only by policy but by territory: states, cities, and counties are either red or blue. “In our politics we’re already two nations,” Buckley observes.

When two people are about to come to blows, it is best to separate them. Secession could do that for a deeply dysfunctional and hate-filled America. The question is whether it can be done constitutionally and peacefully.

Buckley argues it can, even though we have inherited a fractured constitutional memory. A peaceful separation depends upon which Constitution we have. James Madison’s original Constitution is a compact between sovereign states creating a central government with only a few, well-defined powers. States in such a federation may lawfully secede, according to 18th-century legal theorist Emer de Vattel. This principle is what legitimated Britain’s secession from the EU, and what South Carolina thought legitimated its secession in 1860.

Alternatively, we have Abraham Lincoln’s view of the Constitution: a nationalist regime ratified by the American people as an aggregate of individuals. Under this view, the states can no more lawfully secede than a county, on its own authority, may lawfully secede from a state.

Unhappily, Americans have inherited both of these contrary theories in an uneasy tension. This tension was exhibited in 1861, when President James Buchanan and his attorney general ruled that there is no unilateral right to secession in the Constitution. They also conceded, however, that the central government does not have the authority to invade and force a state back into the Union.

Out of respect for the dignity of the states and the American tradition of self-government, Buchanan could see no solution other than a negotiated separation. Most Americans thought the same way. When war seemed imminent, Senator James A. Bayard, Jr., of Delaware cried out: “Why in the name of humanity can we not let those states go?” However, this was not the view of the emerging industrial New York-Chicago ruling class, so the Civil War came anyway.

Buchanan is ridiculed as a weak president, but Buckley has kind words for him, showing how the logic of Buchanan’s position is reflected in the Canadian Supreme Court’s opinion about secession. Like Buchanan, the Canadian Court said there is no unilateral right of secession in the Canadian Constitution. But, out of respect for the provinces as genuine political societies and for Canada’s belief in democracy and self-determination, a province has a right to a referendum on secession. Should a province vote for independence, the government would be obligated to negotiate.

Texas v. White (1869) is frequently presented as the U.S. Supreme Court’s landmark ruling on secession, in which Chief Justice Salmon Chase ruled that a state could not secede on its own authority. However, any honest application of the original intent of the framers of the Constitution would show that a state has the right to negotiate separation. Acknowledging this would make Lincoln’s invasion illegitimate, which Chase, as an agent of the victorious side, was not willing to do. Buckley thinks that should California, for example, vote to secede and withdraw its representatives, today’s Court would not have the stomach to follow Texas v. White and empower a new Lincoln to declare war against The Golden State.

Rather, the Court would have to do what it has never done before, namely ground its opinion about secession not on the success of a war but on all four corners of the Constitution. In doing so, it would be forced to recognize the historic reality of state sovereignty. “Originalists on the Court who are faithful to the intentions of the Framers would be willing to recognize secession rights,” Buckley writes.

Another path to secession would bypass the Supreme Court, as well as Congress and the president. Congress must call such a convention of the states if two-thirds of the states request it. This convention could pass an amendment to authorize secession of a state or to divide the Union into a number of federations of states, subject to ratification by three-fourths of the states.

There is also what Buckley calls “secession lite.” Madison argued the federal government is sovereign in its enumerated powers and the states in their reserved powers. If there is a conflict, the Supreme Court has ruled in a number of cases, known as the “anti-commandeering cases,” that the central government cannot compel a state to use its courts and law enforcement agencies to enforce an action it finds repugnant. Since the federal government depends on cooperation by state courts and law enforcement to enforce its will, a state can render federal law null in its borders by refusing to cooperate.

California did just that by refusing to cooperate in enforcing medical marijuana laws, notwithstanding the fact that Congress and the Supreme Court ordered it to comply. Noticing the inability of the Feds to enforce their will, other states passed laws approving medical marijuana, and some went further by legalizing recreational marijuana.

Still, the Feds enforce their law where they can. You cannot, for instance, buy pot with a credit card. Nevertheless, state resistance has produced a moment of humility and education for the Feds. Most people
today probably believe regulation of marijuana is a reserved power of the states. Had California not acted, however, most states would have ritualistically submitted to yet another federal usurpation of their reserved powers.

A right of nullification also exists in Canadian law, in its “notwithstanding clause.” A province may opt out of acts of the central government in the area of civil rights, but it must reaffirm the nullification every five years. This enjoyment of states’ rights is due in part to Judah Benjamin, the Secretary of State of the Confederacy who fled to Britain after the war and became a respected barrister. He won a number of cases for the Canadian provinces against the central government, which planted states’ rights doctrines into Canadian case law. Buckley says of Benjamin that: “he had proposed the doctrine of states’ rights in two countries, failed in the first and succeeded in the second.”

The second half of Buckley’s book explores his worry that the U.S. is “just too damn big,” being the third-largest country in population after China and India. Working through a complex network of statistical data from the social sciences, Buckley examines the relation between “bigness” and happiness, moral corruption, military aggressiveness, freedom, and wealth. The top ten happiest states in the UN’s “World Happiness Report” are generally small, liberal states, ranging in size from 364,000 Icelanders to 8 million Swiss.

Although a strong argument can be found in the book favoring a certain kind of small state, Buckley confesses his love for the glory and power of the American Union as a force for good in the world. But he thinks it cannot last. It is too centralized, bureaucratic, and corrupt. He would like to see much of its power devolved to the states in the form of British-style home rule.

If this cannot be done, Buckley explains how a gradual, constitutional breakup could be a good thing for America. It would be a soft landing for the fall of a hubristic regime too big to be truly ruled by “representatives” in Washington, and now controlled instead by a national and international oligarchy straddling both parties. If devolution is to come, however, it must be from self-help actions of the states.

However, like Scalia, many Americans still believe the Civil War put state nullification and secession into the dustbin of history. This ignorance about half of our constitutional tradition morally disarms state legislators and governors from exercising the authority they have under the Constitution to resist federal tyranny. To exercise that authority, they must first realize they have it. Buckley’s book would be a good first step in that education.