Secession! Con Law Edition

Wednesday in Con Law we discussed the legitimacy of the United States Constitution. The Constitution was adopted contrary to the explicit terms of the Articles of Confederation (the governing document of the United States of America at the time) – which prohibited the separate states from forming any league or treaty between themselves, and which required more votes for amendment than the Constitution required for ratification.

Our professor asked, if people could ignore the Articles, why couldn’t they ignore the Constitution? Why couldn’t states choose to secede today? Was it ok for the southern states to attempt to secede? I argued that it wasn’t, because they were seceding to protect slavery. The professor suggested something to the effect that we should attempt to abstract from our contemporary moral judgments about slavery.

I think this is exactly backwards. Like government, guns, and nuclear energy, secession has no inherent moral force that people can discern in a vacuum from what it’s used for. Seceding to keep millions in slavery was bad. Isn’t that obvious? The southern secession is an ugly blot on our nation’s history, and framing discussions of secession in its shadow obscures things. If you polled people about the secession of Ukraine from the USSR, southern Sudan from greater Sudan, East Timor from Indonesia, or Kosovo from Yugoslavia, they would probably support them. If you asked people about the hypothetical secessions of Quebec from Canada, Catalonia from Spain, Flanders from the Netherlands, Santa Cruz from Bolivia, Australia or Bermuda from the British Commonwealth, Taiwan from China, or the West Bank and Gaza from Israel, they would probably at least be indifferent.

I doubt opinions about these secession movements have anything to do with the sublime legitimacy of the relevant governing charters. People would support these secessions because they think that they are good – that either their consequences are good or their intentions are just. These secessions protect some ethnic group, democracy, or local interests.  Or they just break up unobjectionable governments into smaller fragments. Given the list above, I would guess that secessions motivated by a desire to keep large numbers of people in literal slavery are in the minority.

I have argued repeatedly (see herehere, and here) in favor of regulatory competition. The more choices people have about what sort of government they live in, and the easier it is to switch between those choices, then the better government will be. On net, I think that a bloodless secession probably adds to regulatory competition. So on net, I am likely to support secession movements.

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