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Secession Week 2010: Federalism and Secession

July 2, 2010

Here we are, the fifth day of Secession Week 2010! Today we’ve decided to broaden the focus a bit from what we’ve promised (the constitutionality of secession) and instead, also discuss the successes and failures of federalism in general.

Today’s Posts

From elsewhere in the blogosphere:

Last year, we characterized Federalism as Secession Lite, and discussed a few of its vices and virtues.

Introduction to Today’s Topic

A screenwriter named Daniel Turkewitz had an idea for a movie–it was about Maine seceding from the U.S.–but he didn’t know if the concept was feasible. So he thought he’d write to an expert. He sent a query to Antonin Scalia on the constitutionality of secession and, remarkably, he received a reply.

Scalia’s letter (to the left) reads:

“I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, ‘one Nation, indivisible.’) Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

“I am sure that poetic license can overcome all that — but you do not need legal advice for that. Good luck with your screenplay.”

Constitutional issues are not “resolved” by the use of force. Presumably they are resolved when conflicting interests consent to the moral authority of the document and its methods of resolving disputes. If at some future date an Idaho or New Hampshire were to secede, it is no argument to say the issue was resolved at Appomattox or to quote the Pledge of Allegiance as a founding document. The legitimacy of that secession will hinge on how much moral weight people give to preserving the Union at that time. The word of Scalia is neither timeless nor holy.

However Scalia is correct in one important respect. Yes, the moral question about the right to secede was not settled in 1865, but the political question was. Among many other things, the Civil War represents a major shift in power between the States and the Federal government. Without the political right to secede, the States’s side at the negotiating table has continually weakened. An old maxim in chess–that the threat is better than the execution–could no longer help States push back against expansionary Federal command and control. This is not to say that all Federal interventions have been bad–as with enforcing the Civil Rights acts, the Feds can effectively protect the rights of citizens against state transgressions–but the overall trend has greatly diminished state-level policy experimentation and has helped stifle value pluralism, two of the highest virtues of a federal system.  We seem to live in the great age of centralization and conformism. The tragedy is that the distance between knowledge on the ground and decision-making power at the top has never been greater.

What exactly is the ideal form of federalism? And, without the right to secede, is it possible to maintain it?  Are there any backdoors to restoring the balance of powers? Today’s posts will discuss these issues from a variety of angles.


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