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.

Discussions of secession in the U.S. are weighed down with the baggage of the Civil War. This legacy may not just burden American’s view of secession as a domestic issue, but also the general concept. The U.S. has opposed secessionist tendencies abroad, even when they were obviously salutary, such as the break-up of the USSR and Yugoslavia, and continues to oppose the break-up of Iraq and other unhappy unions.

Important recent work in political science has helped us better understand the economics of state size. At the same time, secessionist movements have gained broad followings in major Western European democracies, even at a time that nationalism in Europe is thought to be at a nadir. These developments (and not the various U.S. petitions, about which Eugene recently wrote) motivate this post.

Secession seems a good idea on libertarian grounds in that heterogenous preferences can be better accommodated on a smaller scale. Alesina and Spolaore famously theorize optimal state size as optimizing between economies of scale and heterogenous preferences of nationals: the former is increasing on size, the latter decreasing. For optimality to be maintained, there must be some process shaping the size of state other than accretion. Otherwise, one would expect that all countries in equilibrium would be too big.

Usually, secessionist movements start in the wealthier area of country (or an area that would be wealthy if it could completely control local fuel resources) – Northern Italy, Slovenia, Catalonia, Flanders, Biafra, Puntland, Somaliland. This seems especially true of non-violent secession movements — those not formed against the backdrop of massive intergroup violence.

The European Union changes this dynamic somewhat by lowering the cost of secession. EU membership confers significant benefits on the new country (assuming it gets to join the Union) and this is thought to explain the rise in Scottish independence (an atypical breakaway effort by the poorer section). When Rhode Island remained aloof from Constitution, it was threatened with having foreign-nation tariff status.

If Scotland leaves the UK but not the EU, the border with England remains open. Just as declining trade barriers reduce scale economies, so does technology. Large armies are relatively less important for a nation’s defense, for example. The amicable split between the Czech Republic and Slovakia demonstrate how low the costs of splitting can be, especially in Europe.

I’ve analogized secession to divorce: costly, destructive, and yet sometimes preferable to the status quo. Indeed, as with divorce, secession problems usually focus not on the decision to split itself, but on who gets what: the division of common property, payments for prior detrimental reliance or a history of cross-state subsidization (ie, compensation to the spouse who put the other one through medical school, children and visitation (new rules of border access, who is a citizen where). Scotland and England are already prophylactically squabbling about these issues.

There is some notion that secession should be reserved for cases of particular abuse, “extreme cruelty.” But today regions in Western countries seek out due to what to outsiders mights be seen as minor ethnic or cultural vanities: more of a no-fault, irreconcilable differences approach.

Divorce lawyers tell squabbling couples that they will have a lower standard of living after the split, if for no other reason than the elimination of scale economies. That doesn’t keep people from getting divorced. The costs of divorce are clearly visible – litigation, dislocation, and disruption. The costs of a no divorce-regime are less visible, but equally real: the unhappiness of a people whose preferences are no longer satisfied by their union.

There is a certain kind of couple where at least one member gets quite worked up on hearing of divorces among their friends and peers; they want to avoid such people, shun and condemn them – lest anyone get any ideas. But these are usually not happily married couples; those do not feel threatened by their friends’ divorces.

A few final words on the role of law. International law recognizes no general right of secession, though it has numerous useful rules on presumptive borders and obligations if a break-up does occur. Most national constitutions don’t speak to it either (though some permit it, including, amazingly, the former Soviet Constitution). Of course it makes most sense to address dissolution directly in the founding document – a kind of national prenup.

While secession by U.S. states is often seen as the domain of kooks, America also has an accession movement – and a parallel succession movement that seems to have relatively significant support in its locality and is certainly not treated as kooky.

One of the more significant, but less discussed questions in the last election was the question of Puerto Rican statehood. The matter was put to the island’s inhabitants; 54% of voters said “no” to an up/down question about maintaining the current territorial status. A second question asked about preferred alternatives; a clear majority favored statehood over full independence or some kind independent associative status.

(The formulation and ordering of alternatives is key here, as the three alternatives introduce the possibility of intransitive collective preferences. The coming Scottish independence vote could turn on a turn of phrase.)

The United Nations has long described the U.S. control of Puerto Rico as a form of colonialism, and demanded that the island’s inhabitants be allowed to exercise their rights to sovereignty and self-determination. (Americans tend to laugh off such decisions, but it is a fairly typical exercise at Turtle Bay.)

The Puerto Rican vote raises many interesting questions about accession. First, is a simple majority enough to determine the will of the Puerto Ricans on this matter? Here, the rules of secession are important for determining the rules of accession. Normally, a simple majority, or even a plurality, is good enough for most democratic decisions. However, if those decisions become automatically entrenched (require a supermajority to reverse), they should and generally do require a supermajority to enter as well

If succession is illegal, as Eugene and the Supreme Court have suggested (a matter I will question in subsequent posts), joining the Union as a state is an almost irrevocable decision. It is more permanent than a Catholic marriage or the national debt. Even a supermajority vote by the would-be succeeding state would presumably not be enough to terminate the relationship – not even a unanimous vote. Decisions of such permanence should require a significant supermajority. On the flip side, were succession possible, the rule should be easy come, easy go.

Even if Puerto Rico wanted statehood, would the U.S. be obligated to grant it? The political philosophy of the Constitution is manifestly not pure democracy – witness the electoral college. Yet democracy is surely part of our political values.

The situation of territories is different from the District of Columbia, which the Constitution specifically contemplates to be a non-state. The Constitution also permits territories without representation, yet they are quite different from the federal district: they can be numerous and of indefinite size and population, while the District is a small area located between two states. Thus D.C. is a small exception to democratic principles, territories a broader one. This is why the Constitution implicitly treats territorial status as a temporary, transitory state.

Accepting Puerto Rico as a state would have obvious electoral consequences, and the Republicans would be well within their rights to resist it, as would any state concerned about the dilution of its votes. There is no requirement on the U.S. to accede to a territory’s statehood wishes. Yet if the majority of Puerto Ricans do not want to be governed as a territory, it becomes a bit embarrassing for the U.S. to perpetuate this form of government.

Thus the remaining option is one that may not have majority support anywhere, independence. Depending on how things go over the next few years, perhaps Puerto Rico could join Catalonia, Scotland, Kosovo (but not the Serb region thereof), Kurdistan, Other Kurdistan, South Sudan and Flanders in the Association of Newly Seceded States. I wish them much seccess.