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The Prospect of Scottish Secession from Britain

By on November 29, 2013 7:22 pm in Federalism, Secession

One of the major issues on the British political agenda while I have been in the UK this week giving talks about Democracy and Political Ignorance is the prospect that Scotland might become an independent nation separate from the United Kingdom. A referendum on independence is scheduled for September 2014. A recent poll shows the “no” side with a substantial but not insurmountable 47-38 lead.

If Scotland does secede, in the short run Scots might suffer significant economic pain. Scotland is historically a net recipient of funds from the UK government, though North Sea oil has arguably offset that in recent years. If oil revenue falls (and possibly even if it doesn’t), Scotland might have to either raise taxes or cut government spending significantly. In addition, an independent Scotland might not be allowed to rejoin the European Union, if Spain decides to veto its application in order to deter secession by Catalonia. Exclusion from the EU might subject the new nation to trade barriers from some of it’s most important trading partners.

In the long run, however, an independent Scotland might actually improve its economic performance if the cutoff of UK funds forces it to adopt more free market-oriented policies. This is what happened with Slovakia after the breakup of the Czechoslovakia. Ironically, the Scottish government is seeking independence in part because they want to pursue more left-wing economic policies than the present UK government does, which may not be possible, given the tighter fiscal constraints an independent nation might face. Another potential irony is that Britain’s Conservative Party – historically among the strongest opponents of Scottish independence – would benefit politically if independence actually happened, because most of Scotland’s seats in parliament are held by the rival Labor Party.

In my view, the main criterion [...]

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A Market for State Borders

By on October 17, 2013 7:39 am in Constitutional Law, Constitutional Theory, Federalism, Legal Scholarship, Secession

Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows how common such deals already are. [...]

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How Best to Secede from a State

By on October 11, 2013 5:52 am in Constitutional Law, Constitutional Theory, Elections, Federalism, Originalism, Secession, Uncategorized

Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to gain leverage for their preferred policies within their state governments.

These secessionists have an advantage over those seeking outright separation from the Union – and a big disadvantage. On one hand, they don’t have to deal with the Confederacy/slavery baggage that tends to confound discussions of secession in the U.S. On the other hand, the Constitution, Art. IV, sec. 3 clearly forbids the creating a new state in the territory of an existing one without the latter’s consent, and the consent of Congress. That is a high bar, practically insurmountable.

But there may be an easier way for those who seek to secede from their state – instead of creating a new “51st” state, secede to join an existing state. The Constitution’s requirement of home-state and congressional consent only clearly applies to the creation of a “new state”:

… no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The language of the provision is a bit unclear. Does the second clause above (“nor any State be formed”) refer back to, and continue the discussion, of “new states”? That would mean that the provision does not govern the transfer of territory from one state to another. The interpretation probably depends on what it means for [...]

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The Rise of Movements Seeking to Create New States Through Secession

By on September 13, 2013 6:42 pm in Federalism, Secession

Over the last week, secession movements seeking to create new states have made some progress in northern California and rural Colorado. Back in 2011, I wrote about the secession movement in southern California. All three movements are examples of rural jurisdictions seeking to secede from state governments they perceive as dominated by urban interests and values.

The Colorado movement strikes me as more serious than either of the California ones. But none of the three is actually likely to succeed, given that the Constitution forbids creating new states out of the territory of existing ones, without the latter’s consent. In my 2011 post on the southern California secession movement, I gave some reasons why we should consider making state secession easier to achieve:

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….

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…

[W]e would

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Slavery and Secession – The Documentary Evidence

By on July 17, 2013 11:25 am in Federalism, Secession

Just a quick addendum to Ilya’s posts here and here about libertarianism, the Confederacy and the Civil War. I know it’s fashionable in some circles to argue that the Confederate states did not seceded in order to defend slavery. I’ve heard the arguments about tariffs and all that. In my mind, the most compelling counter-argument is found in the words of the Confederate states themselves, which made no secret that their desire to defend slave-holding was the reason they opted to secede. See for instance, the Declarations of South Carolina, Georgia, Mississippi, and Texas. Note also the various Ordinances of Secession several of which make clear that the Confederacy is to consist of slaveholding states. These documents make it abundantly clear that slavery was the paramount concern of the seceding states.

One final point while I’m on the subject. While the cause of slavery is often identified with federalism and “states’ rights,” it’s also worth noting that the slaveholding states were anything but consistent advocates of states’ rights or limited federal power. Their view of the Fugitive Slave Clause and the various Fugitive Slave Acts made clear that they were all for a powerful federal government, so long as such power was used to force free states to cooperate in the maintenance of slavery as an institution, such as by assisting in the capture and return of alleged fugitive slaves. They sought to protect slavery, not to maintain some idealized federalist structure. [...]

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John Stuart Mill on Slavery, the Confederacy, and the American Civil War

By on July 17, 2013 10:40 am in Civil War, Constitutional Law, Federalism, Secession

A reader reminded me that many of the same defenses of the Confederacy advanced by its modern apologists (including some of the libertarian ones discussed in my last post) were also advocated by wartime British sympathizers with the Confederates, and effectively rebutted by John Stuart Mill in his 1862 essay, “The Contest in America.” I read Mill’s article many years ago, but had partly forgotten how relevant it still is.

Here is Mill on the argument that slavery was not the real cause of the war:

There is a theory in England, believed perhaps by some, half believed by many more, which is only consistent with original ignorance, or complete subsequent forgetfulness, of all the antecedents of the contest. There are people who tell us that, on the side of the North, the question is not one of Slavery at all. The North, it seems, have no more objection to Slavery than the South have….

If this be the true state of the case, what are the Southern chiefs fighting about? Their apologists in England say that it is about tariffs, and similar trumpery. They say nothing of the kind. They tell the world, and they told their own citizens when they wanted their votes, that the object of the fight was slavery….

It is true enough that the North are not carrying on war to abolish slavery in the States where it legally exists [note by IS: Mill was writing before the Emancipation Proclamation, though elsewhere in the essay he correctly predicted that the Union will eventually seek to abolish slavery]….

The present Government of the United States is not an abolitionist government…. But though not an Abolitionist party, they are a Free-soil party. If they have not taken arms against slavery, they have against its extension. And

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Libertarianism, the Confederacy, and the Civil War Revisited

By on July 16, 2013 8:34 pm in Civil War, History, Libertarianism, Racial Discrimination, Secession

Revelations that Rand Paul aide Jack Hunter has a history of racist and pro-Confederate statements during his days as a radio shock jock have rekindled the longstanding debate over libertarian attitudes towards the Civil War. Hunter has repudiated many of his former statements and attitudes. But that hasn’t stopped the controversy from continuing.

This uproar raises two important issues: First, is there any possible justification for libertarian sympathy for the Confederacy? Second, how should the libertarian movement react to people with views like Hunter’s?

I. The Case Against the Confederacy.

I have written about the first point at length in the past. To briefly summarize, the Confederacy is indefensible because it was created for the purpose of perpetuating and extending the evil – and manifestly unlibertarian – institution of slavery. Don’t take my word for it. Take that of Confederate President Jefferson Davis, Vice President Alexander Stephens, and the southern states’ official statements outlining their reasons for seceding.

It’s also worth remembering that the Confederacy was a brutal and oppressive regime even aside from slavery. I am by no means hostile to all secession movements. But even if you endorse secession in any situation where a majority of the people in a state support it, you should still denounce Confederate secession. I explained why here:

As of 1860, African-Americans constituted about 40% of the population of the states that formed the Confederacy. It’s a safe bet that they were overwhelmingly opposed to secession. When you combine this overwhelming black opposition with that of the substantial minority of southern whites who also wanted to stay in the Union, it is highly likely that a majority of southerners in 1861 opposed secession. Once you recognize that blacks count too, it becomes clear

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The 150th Anniversary of the Battle of Gettysburg

By on July 3, 2013 11:10 am in Civil War, Military, Secession

Today is the 150th anniversary of Pickett’s Charge and the last day of the Battle Gettysburg. Many modern historians take issue with the traditional view that this Union victory was the decisive battle of the Civil War. They point out that the Confederacy still had a chance to win by demoralizing northern public opinion during the 1864 campaign. But there is little doubt that Gettysburg was an extremely important victory, even if not absolutely decisive. It broke the aura of invincibility that had gathered around Robert E. Lee and the Army of Northern Virginia, and inflicted enormous losses on the Confederates that the South could not replace. Gettysburg should be remembered for its crucial role in putting an end to an odious regime established for the purpose of perpetuating the evil institution of slavery.

For most of the last 150 years, military historians and other commentators have debated the issue of which Confederate general deserves the blame for the defeat at Gettysburg. Various writers have argued that such generals as James Longstreet, Dick Ewell, A.P. Hill, and Jeb Stuart were responsible. The effort to blame Longstreet (the second-highest ranking officer in Lee’s army) gathered steam after the war, when he committed what many white southerners viewed as the unforgivable sin of joining the Republican Party. I am just an amateur reader of this literature. But, for what it is worth, I tend to agree with modern revisionist scholars such as Alan Nolan and Gary Gallagher, who argue that the main culprit was Robert E. Lee. It was Lee who ordered the disastrous Pickett’s Charge, overruling Longstreet’s opposition. To the extent that other generals made mistakes, it was in part because Lee didn’t give them proper supervision, even though he knew that several key subordinates were new to their [...]

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Homage to Catalonia

By on November 26, 2012 12:50 am in Constitutional Law, International Law, Israel, Politics, Secession, Uncategorized

Voters in the Spanish province of Catalonia yesterday gave a large majority to pro-independence parties, who now command 2/3 of the seats in the regional parliament. The practical impact may be attenuated, because the secessionist movement is weakened by being spread across four parties: separatists can’t unite.

Madrid vows to resist any split. Spain apparently only likes two-state solutions when they involve other people’s states. And they are not alone in that. [UPDATE: More on this in the comments.]

Secession in the U.S. has historical baggage that leads it to be associated with reactionary and regressive tendencies. Interestingly, the historical valence of Catalonian separatism is progressive and Communist. The region was a hotbed of Anarcho-Syndicalism in the early 20th century. It was one of the last Republican strongholds in the Civil War (yes, the other one, and the other Republicans). Separatis movements through Spain were suppressed after the war. Orwell’s memoir that provides the title for this post criticized the Soviet domination of the anti-Fascist forces. So if opponents of secession in the U.S. may be the legatees of Lincoln, are the unionists in Spain followers of Franco?

UPDATE: The E.U. has been coy about whether it would accept a Catalan state, and as readers noted, EU rejection would put the kibosh on independence. The EU’s reaction is predictable: it is a country cartel, many of whose members face similar separatist drives. It wants to discourage this kind of thing, and I expect its threats of exclusion will mount as independence seems more likely.

On the other hand, part of the ideology of the Union is its continental nature, its scope – thus the persistent expansion to include even unlikely or remote members. Another part is its inevitability – that is why minor retrogression, like Greece dropping the Euro, is [...]

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Public Opinion on Secession

By on November 18, 2012 9:58 pm in Federalism, Public Opinion, Secession

A recent Huffington Post poll shows that some 22% would “strongly support” (12%) or “tend to support” (10%) their state’s secession from the union (complete results here). This result, combined with recent petitions for secession sent to the White House by citizens of Texas and other states, has led to considerable alarmist discussion of the subject. In reality, however, public support for secession has not increased significantly since mid-2008, when a Middlebury Institute/Zogby poll showed that 18% of the public said they would “support a secessionist effort in my state.” Since the 2008 poll didn’t give respondents the option of merely “tending” to support a secession movement, it’s likely that support for secessionism in that survey would have been even higher had the question been worded the same as in the 2012 Huffington Post poll. I blogged about the 2008 poll here.

There is, of course, a big difference in the distribution of support for secession between the two polls. In 2008, liberals and African-Americans were the ones most likely to express support for secession. For example, some 33% of African-Americans said they would support a secession movement in their state, and 40% expressed support for states’ right to secede. In the 2012 poll, support for secession is highest among Republicans, with 42% saying they would support secession by their own state, and 46% expressing support for a general right of states to secede if a majority of their people want to.

Obviously, the contrast between the 2008 and 2012 results is largely due to who was in the White House. In 2008, liberals and African-Americans were reacting to their anger at George W. Bush. In 2012, Republican secessionist sentiment is driven by anger at Barack Obama. In neither case has the outrage resulted in a [...]

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The Rise of Secessionism in Catalonia

By on September 13, 2012 10:50 am in Federalism, Secession

Time has an interesting recent article highlighting the rise of secessionism in Catalonia. Many more Catalans than in the past want to secede from Spain because of the way the central government takes far more money out of the province than it puts back in:

Sept. 11 always brings Barcelonans into the streets to dance the sardana, sing for their enemies’ blood in the anthem “Els Segadors” and chant political slogans in celebration of their national holiday, the Diada de Catalunya. But this year, a new intensity colored the Catalans’ nationalist fervor. The independence movement’s flag bearing a white star against a blue triangle outnumbered the region’s official yellow-and-red-striped standard. A pro-independence march, which in the past has never drawn more than 50,000 people, pulled in a crowd estimated by city police at 1.5 million. And every newspaper in the city carried the results of a poll released this week that reveals a once unimaginable transformation: half the population of Catalonia supports secession from Spain.

“We have no other option since our will has been totally ignored” says Soledat Balaguer, a member of the secretariat of the Catalan National Assembly, organizers of the demonstration that shut down the city center. “Catalonia needs to be its own state….”

[T]he recent surge in secessionist support is closely tied to Spain’s economic crisis. Although Catalonia is the wealthiest region in Spain, it is also the most heavily in debt, running a fiscal deficit of 8%. Two weeks ago, it requested a 5 billion euro bailout from Spain’s central government, a request that prompted the president of the Extremadura region to complain that those funds would come “from the pockets of all Spaniards.” But in the minds of many Catalans, the region was simply asking for its own money to be fairly returned.

Under

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Would the North be Better Off Without the South?

By on August 24, 2012 4:38 pm in Federalism, Secession

The New York Times has a review of a recent book by travel writer Chuck Thompson which argues that the rest of the country would be better off if the South seceded. In the nineteenth century, the main advocates of secession were southern supporters of slavery, though a few northerners flirted with the idea too. In recent years, ironically, those supporting the idea are almost as likely to be northern liberals as southern conservatives.

Whether Thompson’s argument is correct depends in part on your political ideology. If your overriding objective is to have a more left-wing federal government, it’s hard to deny that southern secession would accomplish that goal for the remainder of the United States. The nonsouthern electorate is significantly to the left of the present total US voting population (which of course includes the South).

Otherwise, Thompson’s position is dubious at best. In recent decades, the southern states have had higher economic growth and income growth than the North, and many northerners – including even many African-Americans – have voted with their feet for the South because of its greater economic opportunities, lower taxes and regulations, and much cheaper home prices (caused in large part by looser zoning restrictions in southern cities).

Without the South, the US would lose a great deal of its economic dynamism. And unless there was free migration between the two nations, northerners would lose a valuable foot voting option. In fairness, the South would never have achieved its recent economic successes but for the federal government-led abolition of Jim Crow segregation, and investment by northern and foreign business interests. But the issue is not whether southerners are solely responsible for the region’s revival since the 1960s, but whether southern secession today would leave the rest of the nation better off.

Thompson [...]

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Debating the Moral and Legal Status of Secession

By on March 12, 2012 4:35 pm in Civil War, Federalism, Secession

Jason Kuznicki and Timothy Sandefur have written responses to my post critiquing Kuznicki’s earlier statement that the idea of legal secession is a “category error.”

Kuznicki writes:

Of course, it’s indisputably true that some secessions are authorized by some countries’ constitutions. Others, however, are not. Within these two types of cases, authorized and unauthorized, we can also imagine specific acts of secession that we find ethically justified or ethically unjustified.

That a given constitution forbids secession does not in my view mean that all secessions from it are necessarily unjustified. It means only that we have to justify them through extraconstitutional means, and these means must in themselves be weighty enough to also justify overthrowing the existing legal order.

Similarly, that a given constitution allows secession does not in my view automatically justify all secessions carried out under it. We may still find some of them ill-advised or even unjustified. There’s nothing about constitutional law that says that where the law permits a thing, the conscience has to be silent.

I agree with all of the above. But I think it is in some tension with Kuznicki’s previous comment on the subject, which claimed that “[s]ecession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.” Kuznicki’s most recent post, by contrast, suggests that such justifications are not category errors at all, though sometimes they may be wrong for other reasons. However, we all sometimes make off-the-cuff statements (or, in this, case twitter posts) that don’t fully reflect our considered views. I know I have done it, so I can hardly blame Kuznicki for doing so.

I have more disagreements with Sandefur’s post:

Jason Kuznicki and Ilya Somin make the critical error of mistaking “secession” for “revolution.” Revolution

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Is Legal Secession a “Category Error”?

By on March 11, 2012 8:39 pm in Civil War, Federalism, Secession

As part of the ongoing discussion of libertarian views on the Civil War and secession, Jason Kuznicki of Cato and David Drumm of the Jonathan Turley blog have argued, in Kuznicki’s words, that “[s]ecession is the decision to step out of an existing political order, so it’s a category error to try to justify it legally.”

I generally agree with Drumm’s and Kuznicki’s condemnation of libertarian defenses of Confederate secession. But I don’t think that legal secession is necessarily a “category error.” Like many other legal relationships – partnerships, clubs, corporations – a federal system of government can incorporate rules that provide for its own dissolution. For example, the Canadian Supreme Court has ruled that Canada’s Constitution allows Quebec to secede so long as the secessionists prevail in a referendum and negotiate certain issues with the rest of Canada. If Quebec does secede in the aftermath of a secessionist referendum victory, the resulting secession will be perfectly legal under Canadian law. There are other federal constitutions that explicitly provide for a right of secession. The most famous recent example is Article 72 of the Soviet Constitution, which numerous constituent republics seceded under in 1990-91.

The US Constitution, of course, is one of many where secession is neither explicitly banned or explicitly permitted. As a result, both critics and defenders of a constitutional right of secession have good arguments for their respective positions. Unlike the preceding Articles of Confederation, the Constitution does not include a Clause stating that the federal union is “perpetual.” While the Articles clearly banned secession, the Constitution is ambiguous on the subject.

Even if state secession is constitutionally permissible, the Confederate secession of 1861 was deeply reprehensible because it was undertaken for the profoundly evil purpose of perpetuating and extending slavery. [...]

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Libertarianism and the Civil War

By on March 6, 2012 12:55 am in Civil War, Federalism, History, Libertarianism, Racism, Secession

Over at Libertarianism.Org, Jonathan Blanks has an interesting series of posts criticizing libertarians who defend the secession of the Southern states that precipitated the civil war (see here and here). Like Blanks, I believe that any possible justification that the Confederates may have had was negated by the fact that they seceded for the purpose of perpetuating slavery – a far greater violation of libertarian rights than anything white southerners could complain of in 1861.

There are, generally speaking, three types of libertarian perspectives on the Civil War. Many libertarians actually support the war, some condemn it without defending the Confederacy, and some are actually pro-Confederate.

I. Libertarian Unionism.

Many libertarians actually agree with the conventional wisdom on the conflict: that, although it caused great harm, it was ultimately beneficial because it led to the abolition of slavery. Although I haven’t seen any survey data, informal discussions with libertarian intellectuals and activists lead me to believe that this view actually very common in the movement, perhaps more so than either of the others. However, few libertarian Unionists have actually written about the conflict, perhaps because libertarian scholars tend to focus on issues where we diverge from the conventional wisdom of non-libertarians rather than endorse it (Tim Sandefur’s article on the subject is an interesting exception). Pro-Union libertarians do, however, differ from many other defenders of the Union cause in so far as most believe that the preservation of the Union was not by itself a sufficient justification for the war, independent of slavery.

II. Condemning the War Without Endorsing the Confederacy.

A second libertarian approach to the Civil War recognizes that the Confederates seceded for the purpose of protecting slavery, and does not defend their actions. But it still holds that the war actually did more harm than [...]

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