Secession, State, and Liberty

David Stove, David Gordon

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781351491709
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

The political impulse to secede - to attempt to separate from central government control - is a conspicuous feature of the post-cold war world. It is alive and growing in Canada, Russia, China, Italy, Belgium, Britain, and even the United States Yet secession remains one of the least studied and least understood of all historical and political phenomena. The contributors to this volume have filled this gap with wide-ranging investigations - rooted in history, political philosophy, ethics, and economic theory - of secessionist movements in the United States, Canada, and Europe.

1

THE SECESSION TRADITION IN AMERICA

Donald W. Livingston

The United Nations Charter asserts the self-determination of peoples as a fundamental human right. From this, there has developed a lively debate among international jurists about whether the right of self-determination includes a right of legitimate secession.¹ But while the concept of legitimate secession is being explored in the world at large, it forms no part of contemporary American political discourse. There was a time, however, when talk about secession was a part of American politics. Indeed, the very concept of secession and self-determination of peoples, in the form being discussed today, is largely an American invention. It is no exaggeration to say that the unique contribution of the eighteenth-century American Enlightenment to political thought is not federalism but the principle that a people, under certain conditions, have a moral right to secede from an established political authority and to govern themselves. In what follows I would like to sketch out this all-but-forgotten American political tradition.

The English verb “to secede” comes from the Latin “secedere,” meaning any act of withdrawal. The exclusively political connotations that govern the term today are peculiarly American, and do not appear in English until the early nineteenth century.² Prior to then, one could speak of the soul seceding from the body; or of seceding from one room of a building to another; or of seceding from any sort of human fellowship. The latter is how “secession” was defined in Samuel Johnson’s Dictionary in the mid-eighteenth century. But Johnson did not capture the Scottish use of the term.

The Church of Scotland split in 1733. Those who left called themselves “seceders” and the resulting Church the “Secession Church.” The Church went by this name for more than a century, during which time it split again, but was reunited in 1829 under the disarming name of the “United Secession Church.” The seceding self-governing religious community paved the way for the seceding self-governing political community and the term as we understand it today. One of the first to use the term in this new and exclusively political way was Thomas Jefferson, who, in 1825, retrospectively described the colonies as having seceded from the British Union.³

The word “secession,” for us, not only has exclusively political connotations, it is a term that marks out a peculiarly modern political act. But this is not obvious, for it might be thought that as long as there have been large-scale political regimes, peoples have sought to withdraw from them. It could be said that the Israelites seceded from Egypt, or that Melos unsuccessfully sought to secede from the Athenian League. We can, of course, speak in this way, but the concept of secession, as understood in contemporary political discourse, is more specific in its meaning. Secession, for us, presupposes the background of the modern state, and this sort of state is only about two centuries old. So secession is not just any kind of political action; it is the withdrawal of a people from a modern state under the moral principle of the right of self-government, and such that the separation requires the territorial dismemberment of that state. The Israelites and Melots were not separating from a modern state, and their withdrawal would not have resulted in the territorial dismemberment of such a state.

The modern state has been theorized in such a way as to entail a strong presumption against secession. It has been said that the sovereignty of a modern state cannot be divided, and that sovereignty is co-extensive with territory. There has been no difficulty in allowing that a modern state can expand its territory and sovereignty, but it cannot allow itself to be dismembered by a supposed right of a people to self-government. Anyone who takes secession seriously as a possibility is necessarily throwing into question the legitimacy of the modern state.

At the time of William the Conqueror, Europe was composed of thousands of independent political units; today there are only a few dozen. This massive centralization and consolidation was accomplished mainly by conquest. The result was that dukedoms, margraviates, small republics, principalities, free cities, and baronies, (not to mention peoples speaking different languages, having different cultures and religions, and pursuing different visions of the human good) were crushed together into the modern state. This state was inherently unstable. A solution was theorized by Hobbes, who postulated a sovereign office whose task was to establish a rule of law which allowed individuals to pursue their own power and glory in that domain in which the law is silent. In time, a modern state came to be seen as an association to protect the rights of individuals, and this added a stronger presumption against secession, because any right of a people to secede could only be the aggregate right of a set of individuals. But if one set could secede, any other set or subset—down to one individual—could secede. An acknowledged right of secession would mean the unravelling of the modern state.

But to affirm a right of secession is not to say that secession is morally justified under any conditions, but only that there can be conditions under which it is justified, and even then there might be reasons for not exercising the right. But those philosophers who first theorized the modern state (Hobbes, Locke, Rousseau, and Hegel) do not so much as raise the question of whether such conditions are possible. Their main task is to understand and legitimate the modern state; the problem of secession simply never occurs to them. And political philosophers since have followed in their steps. John Rawls, for instance, dismisses the possibility of secession without argument.⁴ Secessionist discontent, though a pressing fact of contemporary political life, is the most under-theorized concept in political philosophy. Political scientists and international jurisprudence have taken up the question, but philosophers have not. There is only one book length study by a philosopher on the question of whether secession is ever morally legitimate.⁵

One indication of this under-theorized character of secession is its being confused with revolution. Three conceptions of revolution have dominated in modern political speech. The first derives from the Glorious Revolution of 1688. This is revolution as restoration, and its image is the revolution of a wheel. According to eighteenth-century English Whiggism, the Glorious Revolution was a bloodless restoration of a liberty-loving Protestant regime from the attempted usurpations of the Catholic James II. The second form is Lockean revolution. Here a sovereign people recall the powers they have delegated to a government that has violated its trust in protecting life, liberty, and property. The government is overthrown and a new government instituted. The third form is Jacobin revolution. This is not Lockean revolution for the sake of preserving property but an attempt to subvert and to totally transform an entire social and political order in accord with an egalitarian philosophical theory. A Lockean revolution leaves the social order intact, whereas Jacobin revolution aims at a root-and-branch transformation. Marxian revolution is Jacobin, as are many other forms of contemporary political criticism. Gloria Steinem once said that to talk about reforms for women is one thing, to talk about the total transformation of society is feminism. So conceived, feminism is a species of Jacobin revolution.

Secession is quite distinct from these dominant conceptions of revolution. All presuppose the theory of sovereignty internal to the modern state and the prohibition against dismembering its territory. Secession is not revolution in the sense of eighteenthcentury Whiggism because it is not the restoration of anything. It is the dismemberment of a modern state in the name of self-government. Nor is it Lockean revolution. A seceding people does not necessarily claim that a government has violated its trust. And even if the claim is made, there is no attempt to overthrow the government and replace it with a better one. Indeed, a seceding people may even think that the government is not especially unjust. What they seek, however, is to be left alone to govern themselves as they see fit. Finally, secession is not Jacobin revolution because it does not seek to totally transform the social and political order. Indeed, it seeks to preserve its social order through secession and self-government.

We may, of course, continue to call secession “revolution” if we like, but the danger is that there will be a tendency to confuse it with the dominant meanings of revolution. A seceding people may indeed be said to be in a state of revolt in so far as they resist being coerced back into an established modern state, but this sort of revolt is quite different from revolution. And the moral considerations that would legitimate such resistance are categorically different from that which would legitimate revolution in the above senses, all of which seek, for different reasons, to overthrow an established regime. A seceding people is happy leaving the existing regime exactly as it is. It seeks only to limit its territorial jurisdiction. This, of course, is a serious matter, but it is not revolution in any of the traditional senses. Its name is secession.

Nowhere is the under-theorized character of secession and the confusion that results from failure to distinguish it from revolution more evident than in the habit of describing the conflict with Britain and the North American colonies as the “American Revolution.” It is true that there were whiggish themes from the ideology of 1688 about restoring the rights of Englishmen, and there were Lockean themes about self-government. But the act of the British colonists in America was an act of secession. It was neither whiggish, nor Lockean, nor Jacobin revolution. The colonists did not seek to overthrow the British government. Commons, Lords, and Crown were to remain exactly as before. Indeed, many of the colonial leaders, such as Adams and Hamilton, admired the British constitution and government, and sought to imitate its best features. They wished simply to limit its jurisdiction over the territory they occupied. They wished to be let alone.

Much has been made of the influence the Lockean idiom of self-government had on the Founders. But it is important to realize that, though Locke allows the overthrow of a corrupt regime, he does not allow secession in the form of dismembering the territory of a modern state. And for citizens of a regime who have given their express consent, he does not even allow the right to exit, much less the right to carry territory with them.⁶ There is every reason to believe that Locke, like the “friends of America” (Burke, Pitt, Shelburne, Barré), would have supported reforms on behalf of the Americans, but would have stopped short of secession.

The case is quite otherwise with David Hume, who supported complete independence for the colonies as early as 1768, before the idea had occurred to most Americans. In this he stood virtually alone among major British thinkers. The Edinburgh literati were overwhelming in their support for strong measures against the Americans. Hume, however, staunchly defended secession of the colonies from 1768 until his death on 25 August 1776, five days after the Declaration of Independence was published in Edinburgh’s Caledonian Mercury. To the disappointment of his “oldest and dearest friend,” Baron Mure, who had asked him to write a letter on behalf of the county of Renfrewshire advocating military measures against the Americans, Hume wrote: “I am an American in my Principles, and wish we would let them alone to govern or misgovern themselves as they think proper.”⁷

In this statement, Hume put into words, for the first time, an ideology of “Americanism,” the thought that there are political principles specifically American. What were those principles? they were free trade and the corporate liberty of a people to govern themselves. Hume argued that if the ports of America were open to free trade, it would result in only a trifling temporary loss of revenue, and would, in the long run, benefit British commerce.

Let us, therefore, lay aside all Anger; shake hands, and part Friends. Or if we retain any anger, let it only be against ourselves for our past Folly; and against that wicked Madman Pitt; who has reduced us to our present Condition.⁸

This Humean notion of Americanism that acknowledges the right of a self-governing people to secede is framed in the Declaration of Independence. The Declaration is primarily a document justifying secession, but it has been thoroughly corrupted by Lincoln’s reading of it and the ritualistic repetition and expansion of that reading. The Lincoln tradition reads the Declaration as affirming a metaphysical doctrine of individual rights (all men are created equal) and takes this to be the fundamental symbol of the American regime, trumping all other symbols, including the symbol of moral excellence internal to those inherited moral communities protected by the reserved powers of the states under the Tenth Amendment. Indeed, this tradition holds that the Declaration of Independence is superior to the Constitution itself, for being mere positive law, the Constitution can always be trumped by the “higher” metaphysical law of equality.

The Constitution of the United States was founded as a federative compact between the states, marking out the authority of a central government, having enumerated powers delegated to it by sovereign states which reserved for themselves the vast domain of unenumerated powers. By an act of philosophical alchemy, the Lincoln tradition has transmuted this essentially federative document into a consolidated nationalist regime having as its telos the instantiation of an abstract metaphysical proposition about equality. Such a proposition, in so far as it is taken seriously, must give rise to endless antinomic interpretations, and being metaphysical, these interpretations must stand in ultimate and implacable opposition. In this vision, the reserved powers of the states vanish, and the states themselves are transformed into resources for and administrative units of a nationalist political project “dedicated to the proposition that all men are created equal.” So well established has this inversion become that Mortimer Adler could write a book on the Constitution using for the title not the words of the Constitution, but those of the Lincolnian Declaration: “We Hold These Truths….”⁹

Lincoln’s vision of a consolidated nationalism ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Acknowledgements
• Table of Contents
• Introduction
• Chapter 1. The Secession Tradition in America
• Chapter 2. When Is Political Divorce Justified?
• Chapter 3. The Ethics of Secession
• Chapter 4. Nations By Consent: Decomposing the Nation-State
• Chapter 5. Secession: The Last, Best Bulwark of Our Liberties
• Chapter 6. Republicanism, Federalism, and Secession in the South, 1790 to 1865
• Chapter 7. Yankee Confederates: New England Secession Movements Prior to the War Between the States
• Chapter 8. Was the Union Army’s Invasion of the Confederate States a Lawful Act? An Analysis of President Lincoln’s Legal Arguments Against Secession
• Chapter 9. The Economic and Political Rationale for European Secessionism
• Chapter 10. A Secessionist’s View of Quebec’s Options
• Chapter 11. How to Secede in Business Without Really Leaving: Evidence of the Substitution of Arbitration for Litigation
• Appendices
• B. The Articles of Confederation
• C. The Constitution of the United States
• D. The Constitution of the Confederate States
• About the Authors
• Index