Editor’s note: What follows is an excerpt from F.H. Buckley’s new book “American Secession: The Looming Threat of a National Breakup” which will release on Jan. 14 (Pre-order here on Amazon). Professor Buckley’s book examines secession movements in other countries as well as the secession movement that caused the Civil War to get an idea of what a modern secession movement in the United States might look like. The book also tackles the growing partisan divide and why a secession movement might find fertile ground in today’s political climate.
Secession. It’s a crazy idea, right? But it’s less crazy than you might think. With all the secessionist movements across the world, it becomes easier to imagine breakups, even in the United States. It’s easier still when the pluses are so much greater than they were in the past, and the minuses so much smaller.
The pluses are so much greater today because the federal government’s footprint has grown so much larger. In the past, the states had less reason to chafe at the rule from Washington. A spring in the back yard didn’t become a federal wetland. Teachers didn’t receive letters from the Department of Education telling them how to run their schools. Local highway decisions weren’t made in Washington because of the strings attached to federal grants. Now America increasingly looks more like a unitary state than like the federal republic the Framers of the Constitution thought they had given us. With secession, we would reverse course.
If there’s more reason for a state to secede today, there’s also a much smaller downside. It wouldn’t perpetuate slavery in the South, as secession in 1861 would have done. Even after the Civil War had brought an end to slavery, federalism and “states’ rights” were discredited by southern Jim Crow laws and barriers to voting registration for black Americans. Since then, however, the civil rights revolution has taken hold and it’s much less likely that secession would be employed to discriminate against a minority. Even notorious racists such as Senator Jim Eastland (D-MS) understood how the 1965 Voting Rights Act and federal marshals had changed the equation. “When [the blacks] get the vote,” he said, “I won’t be talking this way anymore.” Far from bringing back Jim Crow, secession today in a place like California might give us the perfect paradise of woke progressivism. (RELATED: On The Left And Right, Talk Of Civil War Is Everywhere Heading Into 2020)
Instead of the Civil War, think of the “velvet divorce” of the Czechs and Slovaks in 1993. Distinct in religion, language and culture, they had been combined in a country created in 1918 after the collapse of the Austro-Hungarian Empire. The Slovaks were conservative and agricultural while the Czechs liked avant-garde plays and rock music. Czechoslovakia suffered through Nazi and Soviet rule, and then split apart into Slovakia and the Czech Republic upon the fall of communism. The two new countries, both Western and liberal, solved questions about their border, the division of assets and assumption of public debt through negotiation, and they’ve since maintained the friendliest of relations.
We’re now living in a secessionist moment in world history, as a result of three international developments. The first was the decolonization movement., which gave birth to new countries in Africa and Asia as European countries shrank. Like the American Revolution, the grant of independence was a form of secession from the colonial power. The second development was the end of the Cold War. When countries had faced the threat of Communist expansion, they did not wish to weaken themselves by dividing in two countries, or weren’t given that option. South Vietnam wasn’t permitted to remain independent of North Vietnam, for example. But after the Communist empire fell, twenty-four new countries emerged from behind the Iron Curtain. The third development was the worldwide embrace of free trade. When countries subjected foreign goods to high tariffs but let domestic goods pass freely, small size meant greater barriers to trade, and that was a cost. If a seceding state could enter into a free trade zone with the one it was splitting away from, and accede to its free-trade treaties, that cost would disappear.
All this points to a rise in American secessionism. To American states that chafe at rule from Washington, the federal government can seem like a distant and burdensome colonial power. That was the point of the Tea Party movement, after all. “Party like it’s 1773!” said Sarah Palin, recalling the first Tea Party. The fall of communism has also lessened the need for the powerful military that only a large state can provide. Finally, a seceding state might hope to retain free-trade links with the rest of the United States, as Quebec separatists had sought with their idea of sovereignty-association. (RELATED: Texit? Meet The Folks Making The Push For The Second Biggest State In The US To Secede)
In short, the stakes have been lowered, and that’s why a modern president might react to a secession referendum with more of James Buchanan’s prudence and less of Abraham Lincoln’s unyielding assertion of federal sovereignty. Secession might also seem like a reasonable way to resolve unbridgeable partisan differences, in which case an Article V convention to amend the Constitution might work out our own velvet divorce. Finally, the right of secession might find support in the Supreme Court, were it to follow the decision of the Canadian Supreme Court when it was faced with the possibility of a successful independence referendum in Quebec.
Cass Sunstein has said that “no serious scholar or politician now argues that a right to secede exists under American constitutional law.” He’s right. But I will show how it could still happen through constitutional means.
F.H. Buckley is a Professor at George Mason University’s Scalia School of Law, a senior editor at the American Spectator, and has written for several other publications including the Washington Post. He is also the author of several other books, the most recent of which are “The Republican Workers Party” and “The Republic of Virtue.”