The Volokh Conspiracy

Riverside County Supervisor Jeff Stone recently called for southern California to secede and form a new state:

Is the state of California about to go “South”?

Riverside County Supervisor Jeff Stone apparently thinks so, after proposing that the county lead a campaign for as many as 13 Southern California counties to secede from the state.

Stone said in a statement late Thursday that Riverside, Imperial, San Diego, Orange, San Bernardino, Kings, Kern, Fresno, Tulare, Inyo, Madera, Mariposa and Mono counties should form the new state of South California.

The creation of the new state would allow officials to focus on securing borders, balancing budgets, improving schools and creating a vibrant economy, he said.

“Our taxes are too high, our schools don’t educate our children well enough, unions and other special interests have more clout in the Legislature than the general public,” Stone said in his statement…..

Stone said he would present his proposal to the Board of Supervisors July 12.

The new state would have no term limits, only a part-time legislature and limits on property taxes.

Even if Stone succeeds in getting other southern Californians to support his plan, it faces very long legal and political odds. As Bill Whalen points out, the Constitution does not allow a state’s territory to be divided without its own consent. And the admission of a new state to the Union requires approval by Congress. Obviously, the California state legislature is unlikely to agree to the secession. And even if it does, congressional Democrats are unlikely to approve the admission of a state with two new Republican senators unless a new majority-Democratic state is admitted at the same time (e.g. – Puerto Rico or the District of Columbia).

Ironically, the Constitution is far more clear about making it hard for territories to secede from a state than about the secession of states from the Union, a subject on which it is conspicuously silent. No successful secession from a state has occurred since West Virginia broke off from Virginia during the Civil War. And that secession may have violated the Constitution, since the Virginia legislature did not consent to it at the time.

This is one of those areas where I think the Constitution gets things wrong. Seceding from a state should not be easy. But it also should not be as impossibly difficult as the Constitution currently makes it. Some of our present states are probably too big, and California is perhaps the best example of this phenomenon.

Normally, dysfuctional state policies are constrained by the possibility of “voting with your feet.” If a state imposes overly high taxes, adopts flawed regulations, or provides poor public services, people and businesses will tend to migrate elsewhere, thereby incentivizing the state government to clean up its act in order to preserve its tax base. For reasons I discussed in this article, foot voters usually have incentives to be better-informed and more rational in their decision-making than ballot-box voters.

In California’s case, however, this dynamic has been undercut by the state’s size and favorable geographic location. Because California is extremely large and controls most of the warm-weather coastal territory on the West Coast, people have been willing to put up with a lot of bad policies for the opportunity to live there. Competitive pressure on the state government would be much greater if there were three or four states occupying California’s present territory instead of one.

In recent years, conditions in California have gotten so bad that the state has finally begun to experience a net outmigration to other states
of approximately 140,000 per year. And the state government has belatedly begun to reform itself, with Democratic governor Jerry Brown proposing to cut spending and abolish the state’s abusive redevelopment agencies. But these trends did not take hold until after the state had dug an extremely deep hole for itself that it will take years to dig out of. A smaller California that faced more interjurisdictional competition probably would not have become so dysfunctional to begin with. And if it did, it would have had to mend its ways sooner, since people would have started to leave earlier.

Obviously, given the existence of economies of scale in government, we would not want states that are too small. However, California and a number of other states have several times more people than many European countries whose governments function as well or better than those of other democracies, including Switzerland, Belgium, Denmark, and Sweden. Indeed, California has many more people than Canada. No serious scholar argues that Switzerland and Denmark are missing out on important economies of scale. The same goes for states such as Virginia and Massachusetts, as well as the hypothetical new state of southern California.

It’s also worth noting that secession from a state doesn’t raise nearly as many difficult moral and political issues as secession from the Union. People who secede from a state would still be under the federal Constitution and would still enjoy its guarantees of individual rights. They will also still be subject to other federal laws. So even if you are more skeptical than I am about secession from nation-states, you can still favor loosening restrictions on the formation of new states within a nation.

The New York Times has an article on yesterday’s celebration of the 150th anniversary of the inauguration of Jefferson Davis as president of the Confederacy:

Before a cheering crowd of several hundred men and women, some in period costume and others in crisp suits, an amateur actor playing Jefferson Davis was sworn in as president of the Confederacy on the steps of the Alabama Capitol on Saturday, an event framed by the firing of artillery, the delivery of defiant speeches and the singing of “Dixie.”

The participants far outnumbered the spectators, but it was to be the largest event of the year organized by the Sons of Confederate Veterans and one in a series of commemorations of the 150th anniversary of the Confederacy and the War for Southern Independence. (Referring to the Civil War as anything other than an act of unwarranted Northern aggression upon a sovereign republic was rather frowned upon.)

The Sons’ principal message was that the Confederacy was a just exercise in self-determination that had been maligned by “the politically correct crowd” through years of historical distortions. It is the right of secession that they emphasize, not the cause, which they often describe as a complicated mix of tariff and tax disputes and Northern attempts to politically subjugate the South.

The Times article reports that the SCV sought to downplay as much as possible the fact that Davis’ motive for secession was to protect and extend the institution of slavery. Unfortunately for them and other apologists for the Confederacy, the real Jefferson Davis unequivocally stated in 1861 that the cause of his state’s secession was that “she had heard proclaimed the theory that all men are created free and equal, and this made the basis of an attack upon her social institutions; and the sacred Declaration of Independence has been invoked to maintain the position of the equality of the races.” Other Confederate leaders also emphasized that slavery was the reason for secession (see here, here, and here).

Unlike most critics of the Confederacy, I am not necessarily hostile to the idea of secession as such. However, a secession undertaken for the profoundly evil purpose of perpetuating slavery does not deserve to be celebrated. Nor should apologists retrospectively try to whitewash the Confederates’ motives.

At Ricochet, Hillsdale College Professor Paul Rahe has a post on the 150th anniversary of South Carolina’s vote to secede from the Union. I’m one of the few Americans sympathetic to the general idea of secession who is also unequivocally hostile to the secession effort undertaken by the Confederacy in 1860-61.

In my view, the Constitution doesn’t clearly either forbid secession or permit it. Rahe emphasizes that there is no provision in the Constitution permitting secession. But there is also none banning it. The Constitution conspicuously omitted the section of Article XIII of the Articles of Confederation mandating that the union be “perpetual.”

In practice, the morality of any given secession movement depends critically on the reasons why the secessionists want to form their own state and the likelihood that it will be less unjust than the regime they seek to leave. Some secessions have clearly been defensible on these terms, including the Baltic States’ secession from the USSR, the breakup of Czechoslovakia in 1993, Norway’s early 20th century secession from Sweden, and America’s own secession from the British Empire. By contrast, I have argued that the Confederate attempt at secession was indefensible because it was undertaken for the evil purpose of perpetuating and extending the oppressive institution of slavery (see here and here).

In South Carolina’s case, among others, you don’t have to take my word about their motives. The state’s leaders condemned themselves through the South Carolina secession convention’s own official declaration of its reasons for seceding from the union. Here is a relevant excerpt:

The right of property in slaves was recognized by [the Constitution] giving to free persons distinct political rights, by giving them the right to represent, and burthening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States…..

For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.

This sectional combination for the submersion of the Constitution, has been aided in some of the States by elevating to citizenship, persons who, by the supreme law of the land, are incapable of becoming citizens [note by IS: this is a reference to free blacks]; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety.

On the 4th day of March next, this party will take possession of the Government. It has announced that the South shall be excluded from the common territory [note by IS: that slavery will be excluded from federal territories in the West], that the judicial tribunals shall be made sectional, and that a war must be waged against slavery until it shall cease throughout the United States….

Sectional interest and animosity will deepen the irritation, and all hope of remedy is rendered vain, by the fact that public opinion at the North has invested a great political error with the sanction of more erroneous religious belief.

We, therefore, the People of South Carolina, by our delegates in Convention assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, have solemnly declared that the Union heretofore existing between this State and the other States of North America, is dissolved…..

Other parts of the South Carolina declaration try to prove that the southern states had a legal right to secede. But the declaration leaves no doubt that the reason for exercising that supposed right was concern about the future of slavery under a Republican president.

UPDATE: Rahe quotes relevant excerpts from a famous March 1861 speech by Confederate Vice President Alexander Stephens. It’s worth noting that Stephens was a relative moderate by Confederate standards, not a radical proslavery secessionist “fire-eater.” That’s one of the reasons why he was picked for the job. He had this to say about the causes of southern secession:

The new [Confederate] constitution has put at rest, forever, all the agitating questions relating to our peculiar institution—African slavery as it exists amongst us; the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the “rock upon which the old Union would split.” He was right. What was conjecture with him is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically…..

Our new government is founded upon exactly the opposite idea; its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery—sub-ordination to the superior race—is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth. [emphasis added].

UPDATE #2: For those who may be interested, I expounded on the theoretical underpinnings of my approach to secession in greater detail in this post.

Students at the University of Mississippi have started a campaign to replace the school’s longtime mascot Colonel Reb with Admiral Ackbar, leader of the Rebel Fleet in Star Wars. Colonel Reb was retired in 2003 because “coaches and athletic boosters concluded that C. Reb and other symbols of the Confederacy hurt the school’s recruiting prospects.” The movement has attracted national attention, and Lucasfilm says that they may license the use of Ackbar by Ole Miss.

Both science fiction fans and Confederacy-haters have reason to cheer this development. Given my view of the Confederacy (see here and here, and here), I fall into both categories. From a competitive standpoint, it also makes good sense to replace a mascot who represented an evil cause that failed with one that symbolizes a just cause that won. Winners make better mascots than losers.

The Ole Miss Rebel Alliance – the student group promoting Ackbar as the new mascot – originally did so as a joke. But they also acted for the more serious purpose of preventing the reinstatement of Colonel Reb:

Six days before the Ole Miss student body was called to vote on whether to accept the responsibility of developing a new mascot, four students came together to fill a void for those who were ready to lay Colonel Reb to rest.

Drawing comedic inspiration from a squid-like Star Wars character, Tyler Craft, Matthew Henry, Joseph Katool and Ben McMurtray launched the Ole Miss Rebel Alliance and unwittingly introduced Admiral Ackbar as a potential mascot candidate….

A Web site was created featuring the now-viral image of Ackbar dressed in a red hat and jacket similar to that of his predecessor….

“We started this as sort of a fun thing,” Craft said. “We did it with satire, fun and a little comedy. Admiral Ackbar represented the people who wanted to move forward, which apparently was a good portion of the campus.”

Ole Miss students got the joke, and through parody emerged another contender in the battle for a new mascot.

On one side stood the Colonel Reb Foundation, developed shortly after the former mascot’s removal in 2003, who launched a widespread advertising campaign in the days leading up to the vote encouraging students to oppose creating a new mascot.

McMurtray said it was obvious there was no organization pushing for the ‘yes’ vote.

“No independent organizations really voiced their support (for a new mascot), so that was our goal – to try to be that organization,” McMurtray said.

Those looking for an alternative to the colonel’s salvation suddenly had a common, albeit laughable, rallying point.

And rally they did. More than 2,500 students voted in favor of finalizing the university’s seven-year disassociation with its former mascot.

Suddenly, four jokesters found themselves at the forefront of not only a campus movement, but a national media blitz – one that removed focus from a university clinging to images representative of its divisive past to one where students were ready to move on.

Since the 1960s, scholars have spoken of the rise of a New South that is beginning to transcend the region’s legacy of slavery and segregation. The state of Mississippi was once one of the most segregationist of all, and the University of Mississippi was famously resistant to the admission of black students. This change is a small but interesting indication of the broader changes in the South over the last two generations. The legacy of segregation and the Myth of the Lost Cause certainly aren’t completely dead. But even at Ole Miss they are on their way out.

In a recent post, co-conspirator Eugene Volokh argues that the Civil War did not settle the issue of the constitutionality and moral defensibility of secession. I made a detailed argument to the same effect in this 2008 post.

I’m not going to restate all my analysis here. But I will say that I don’t think that secession is either clearly unconstitutional or always morally wrong. I agree with Eugene that secession at this particular moment in American history is probably both infeasible and likely to cause more harm than good. I don’t think, however, that that will necessary remain true indefinitely.

In many federal systems, secession is an important safeguard for minority groups and a guarantee against excessive concentrations of power in the central government. Historically, at least some secessions have done great good, such as the “Velvet Divorce” between the Czech Republic and Slovakia in 1993, Norway’s early 20th century secession from Sweden, Finland’s secession from the Russian Empire, and the Baltic States’ 1991 secession from the USSR. The American Revolution was, of course, a violent secession from the British empire, one that most Americans surely believe to have been justified.

Not all secession movements are defensible. As I see it, their merits depend crucially on the nature of the regime they are seeking to secede from and the quality of the one they are likely to establish. For this reason, I am one of the relatively few Americans sympathetic to the general idea of secession who also believes that the Confederate secession effort of 1861 was utterly indefensible. The Confederates seceded for the deeply unjust purpose of defending and perpetuating slavery, a point that I discuss in detail here and here. For that reason, among others, their defeat and the resulting abolition of slavery was a far better outcome than a Confederate victory would have been.

For those who may be interested, I discussed many issues related to the pros and cons of secession in this series of posts in 2008 and 2009. It may be an interesting way to pass the time for federalism buffs confined to their homes by the latest iteration of “Snowmageddon.”