The Volokh Conspiracy

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 threatening. Thus having non-EU pockets within the union is a challenge to the notion of Europe. I think after some bluster, Brussels would put Catalonia on the (often long) road to accession. Anyway, the EU needs more solvent members, rather than fewer. So my advice to Catalan secessionists (who may not read this, and haven’t asked) would to be to tough it out and not go wobbly.

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 serious secessionist movement. And that’s a significant fact. There is a major difference between expressing abstract support for secession in a survey and actually supporting a serious effort at secession in the real world. In the modern United States, few people feel enough loyalty to their states to have a strong commitment to establishing the state as an independent nation. Some 42% of Americans have lived in more than one state, and many others are recent immigrants who identify more with the US as a whole than with the state they happen to live in.

Even setting aside the possibility of the federal government using force to suppress a secession movement, any serious effort at secession would run into significant problems. A state that chooses to secede would have to negotiate with the US as to the percentage of the national debt it would take on. It would have to deal with the problem of federal facilities on its territory, such as the numerous military bases in Texas. The US and the seceding state would have to negotiate some kind of free trade agreement, or risk serious economic harm. And what about the residents of that state who are collecting entitlement payments from Washington for Medicare, Medicaid, and Social Security? These problems may not be insoluble, addressing them would be difficult and in some cases costly. I doubt that very many of the 22% who say they support secession are really willing to pay the substantial transition costs of forming an independent nation.

That said, the survey results are not completely meaningless. The fact that around 20% of the public express support for secession in both 2008 and today is yet another indication of political polarization and dissatisfaction with the status quo. Distrust of the federal government when the presidency is controlled by a hostile party is strong enough that a large fraction of the population considers secession to be a reasonable option (even if they are not prepared to support a serious secession movement). The polls also show that, for much of the general public, secession is not an unthinkable taboo, in the way it is for most intellectuals and political elites. The latter still tend to associate secession primarily with the Civil War, slavery and racism. Many in the general public don’t see it that way, as is especially clear from the extensive support for a right of secession among African-Americans in the 2008 poll.

This is one of those instances where the public may be closer to the truth about a complex political issue than the more highly educated elite. Although the southern secession movement of 1861 was indeed a despicable effort to protect the evil institution of slavery, it does not follow that all other secession movements are tainted by association. Each such effort must be judged on its own merits. Some, such as the Baltic States’ 1991 secession from the USSR, have great merit; others, such as the Confederacy, not so much.

In my view, state secession from the US today is likely to cause more harm than good. Both the seceding state and the rump US could easily end up worse off than before. But that could potentially change if the federal government becomes sufficiently dysfunctional and the seceding state has a good chance of setting up a better regime. For the moment, most public support for secession in the US is an expression of frustration with the federal government and its current leaders rather than a serious effort to form a new nation. I hope and expect that the economic and political situation will not deteriorate enough for that to change.

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 the current fiscal system, Catalonia collects taxes from its residents, but turns them over to the central government, which then disburses a designated amount to each region to pay for public salaries, social services, infrastructure and the like. In 2009, the latest year for which figures are available, Catalonia provided 19.49% of the federal government’s tax revenue, yet received only 14.03% of the state’s spending.

Reasonable people can differ on the question of whether or not Catalonia’s secessionists are justified in seeking independence from Spain. But this is one of many cases which shows that it is a mistake to praise or condemn all secession movements indiscriminately. Americans in particular should recognize that most secession movements abroad are very different from the South’s effort to secede for the purpose of protecting the evil institution of slavery. Secession movements in other countries often have very different and usually more admirable purposes. I outlined some thoughts on the moral standards to be applied to secession movements here.

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 is right that many southern voters are politically ignorant, and some southern politicians venal and corrupt. But widespread political ignorance is a nationwide problem that isn’t confined to any one region or party. And for every egregiously corrupt jurisdiction in the South (e.g. – Louisiana), one can point to similar cases in the North, such as Illinois.

Like Thompson, I am no fan of the 19th century southern secession movement, or of recent efforts to whitewash its record by pretending that it wasn’t principally motivated by the desire to protect slavery. No one can deny that the region’s record on racial issues was atrocious for most of American history. I am also not fond of the South’s relative social conservatism. Finally, I am not opposed to the idea of secession on principle, and there are cases where it might be the best course of action. This, however, probably isn’t one of them.

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 means to overthrow a political and legal order, while secession is a legal theory—it is the theory that for a state to leave the union is itself within the legal order. It is therefore literally incorrect to say that secession is the “attempt to step outside the legal order.” That’s revolution. The American Revolution was not an attempt at secession—note that the word was virtually never used by the Revolutionary leaders. On the contrary, the term secession came into use in the decades before the Civil War as an attempt to justify a (pseudo-)revolutionary act within the legal order.

As I explained in this post, secession and revolution are not mutually exclusive categories. At least as used in contemporary English, secession is used to denote any effort to split off part of a state’s territory and form a new nation, whether legally or not. Some secessions also qualify as revolutions, in the sense that they seek to establish a political regime very different from that which existed before. The American Revolution was an example of revolutionary secession. By contrast, some secession movements are not revolutionary in this sense (e.g. – today’s secession movements in Scotland and Quebec, which seek to establish parliamentary democracies only modestly different from those that presently exist in Canada and the UK). It is true that the American Founders did not use the term “secession” in the 1770s. But that’s because it had not been invented yet, not because it isn’t an accurate description of (part of) their agenda.

Sandefur is also far more certain than I am that secession was illegal under the US Constitution as of 1861, arguing that “many of [the Constitution's] pre-1865 provisions—from the Guarantee Clause to the Privileges And Immunities Clause—were absolutely incompatible with secession, and the subsequent amendments are even moreso.” This may be true, but I am not so sure. The Guarantee Clause and Privileges and Immunities Clause impose various obligations on “states” that the federal government can enforce. However, if states have a right to secede, they would no longer be “states” of the American Union after such as secession has occurred. At that point, the Constitution – and the federal government’s power to enforce its provisions – would no longer apply to it. The clauses Sandefur mentions are plausibly interpreted as applying to all states in the Union, for so long as they remain part of it, but not if they secede. Imagine an Alcoholics Anonymous chapter that has a clause in its charter giving the organization the authority to guarantee that the members never drink alcoholic beverages. Does such a clause necessarily mean that members are forbidden to leave AA (and therefore no longer be subject to this clause)?

I don’t think any of the above proves that secession is constitutionally permissible. It only demonstrates that the issue is a closer call than many suppose.

Sandefur also suggests that, if secession is legal, it requires no additional justification:

[I]f the law allows secession, then no more justification is required—just as a person wanting to sell his car requires no further justification than that he wants to and it belongs to him. If secession is a legal right, no further rationale is required (at least, vis-a-vis the federal union). But if secession is not legal—that is when further justification is required (and in the case of 1861, is lacking). Only if it is a law-breaking act do we get to the question of whether it is nevertheless justified in some moral sense.

I think this is wrong. Many legal activities might also be immoral or unjust. Slavery was legal in many states until 1865, but it was still an evil, and people still had a moral obligation not to become slaveowners. Similarly, secession for the purpose of protecting slavery was evil even if it was legal under the Constitution.

UPDATE: Timothy Sandefur responds in an update to his original post:

[O]bviously I do not deny that “[m]any legal activities might also be immoral or unjust,” and that secession for the purpose of perpetuating slavery was both. Of course that is true. (That’s why I added the qualifier “vis-a-vis the federal union.”) My point is that if secession were legally valid, then the state would have the legal authority to secede regardless of its rightness or wrongness, just as one has a legal right to do immoral things. But it is only because secession was and is illegal, that the rightness or wrongness of the act is relevant: because it is then incumbent upon a “seceding” state to justify such an act as an act of revolution (which can justify illegal acts in some cases). That route, however, is not open to the Confederacy, due to the immorality of its acts.

I think there is an internal contradiction here. Sandefur recognizes that “[m]any legal activities might also be immoral or unjust,” but also argues that “it is only because secession was and is illegal, that the rightness or wrongness of the act is relevant.” Actually, it would be relevant even in the case of a legal secession, because some legal actions “might also be immoral or unjust.”

Sandefur also makes the following point:

[I]t’s important to reiterate that the U.S. Constitution’s system of divided sovereignty is in no sense analogous to Alcoholics Anonymous: the states are not “members” of the federal government in the way that people are members of A.A. Indeed, the states are not, properly speaking, “members” at all.... A closer analogy would be if A.A. purported to absolve its members of membership in the AAA. It would have no standing to do so, and any attempt to do so would violate the contractual rights of the members in question.

My use of the AA analogy was only for the limited purpose of showing that an organization can have rules that impose restrictions on members while they remain members, but do not apply if the members choose to leave the group. The Guarantee Clause, Privileges and Immunities Clause, and other parts of the Constitution imposing restrictions on the states can be interpreted as rules of this type. As to the states not being “members” of the Union, I think it’s fairly clear that they are. It is after all, called the United States of America, which implies a federal union composed of members that are states. This, of course, does not settle the question of whether and under what conditions the members are entitled to leave the Union. But my purpose was not to show that there clearly is a right of secession under the Constitution, but merely to demonstrate that the idea of such a right is more plausible than critics imagine.

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. But not all secession movements have such motives. Some are undertaken for good or at least defensible reasons. In any event, there is nothing inherently contradictory about the idea of a legal 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 good, because slavery might have been abolished soon anyway and the war did not result in anything resembling full equality for blacks. Libertarian historian Jeffrey Rogers Hummel is perhaps the leading modern defender of this view. I disagree with his perspective. But it is not unreasonable. The Civil War resulted in the loss of over 600,000 lives, extensive violations of civil liberties, and enormous destruction. And it is indeed true that blacks had to wait another century before they got full legal equality.

Nonetheless, I believe the war was worth the cost because the abolition of slavery was a tremendous advance even if it fell short of full equality. I am skeptical of claims that slavery would have disappeared quickly even without the war. As Blanks points out, slavery was not on its way out, either economically or politically, and the price of slaves was actually rising – indicating that the market expected the “Peculiar Institution” to last for a long time to come.

III. Pro-Confederate Libertarians.

We now come to those libertarians who actually defend the Confederacy and its “right” to secession, the targets of Blanks’ posts. These libertarians argue either that the secession wasn’t really about slavery or that the southern states had a right to secede regardless of their reason for doing so.

On the first point, as Blanks emphasizes, the Confederate leaders themselves repeatedly stated that protecting slavery was their principle motivation. This was forcefully articulated at the time by Jefferson Davis, Confederate Vice President Alexander Stephens (who famously called slavery the “cornerstone” of the Confederacy), and the southern state governments’ official statements giving their reasons for secession. Modern defenders of the Confederacy cannot get around the fact that the most damning evidence against it comes from the statements of its own leaders.

As for claims that the southern states had a right to secede independent of their motives for doing so, Blanks effectively dismantles this one. Slavery was a far greater violation of libertarian rights than anything that white southerners were suffering at the hands of the federal government in 1861. Even if a majority of the population in some jurisdiction supports secession, libertarians should still oppose if the purpose of secession is to perpetuate and extend a massive violation of libertarian rights. And few institutions violate such rights more blatantly than slavery. I don’t agree with all of Blanks’ arguments. Unlike him, I think it’s far from clear that secession was unconstitutional. But whether constitutional or not, Confederate secession was a great evil. Indeed, if the Constitution did permit secession for the purpose perpetuating slavery, that’s more an indictment of the Constitution than a justification of Confederate secession.

IV. Remembering that Blacks Count Too.

I would also add an important point that is overlooked by both Blanks and most modern defenders of the Confederacy: Even if you do endorse any secession that is supported by a majority of the population in a given state, you should still condemn the Confederacy. Southern secession can only be defended on majoritarian grounds if you discount the views of southern blacks. 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 that Confederate secession was anti-majoritarian as well as proslavery.

I don’t believe that most of today’s libertarian defenders of the Confederacy ignore the views of blacks out of racism. They probably do so because they unthinkingly take for granted the laws of the time, which in the South excluded even free blacks from the franchise (as was also true in many northern states). But there is no reason to accept the validity of that exclusion. Indeed, libertarians should be the first to recognize that southern state governments had no right to rule over African-Americans without even the slightest pretense of gaining their consent.

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.”