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SECESSION AND THE MODERN STATE
Donald
W. Livingston, PhD. Department of Philosophy Emory University
December 1996
Donald
Livingston Professor Department of Philosophy
561 S. Kilgo Circel Emory University Atlanta,
GA 30322
404-727-6580, 404-712-9425 FAX
Secession
filled me with hope, not as the destruction but as the redemption of Democracy.... (Lord
Acton to Robert E. Lee, November 4, 1866)
The
idea of a modern unitary state goes back to the philosophers of the seventeenth century,
but its first appearance in the world was the work of the French Revolution. The unitary
French republic has since been the model for would-be modern states throughout the world,
including the United States after 1865. The
modern state was said to be one and indivisible, and so was conceived from the start as a
state from which secession was impossible. From 1790 until 1990 there were only a few
cases of successful peaceful secession. Belgium seceded from the Netherlands in 1830;
Norway from Sweden in 1905; and Singapore from the Malaysian Federation in 1965. All were
negotiated peacefully. But suddenly after 1990, the number of successful peaceful
secessions surged. Fifteen republics seceded from the Soviet Union. A Czech and a Slovak
republic were created out of Czechoslovakia through secession. With the exception of the
secession of Eritrea from Ethiopia, all the successful secessions since 1990 occurred
without violent resistance from the respective central governments. This was true even of
Yugoslavia. There was only half-hearted resistance to the secession of Slovenia and
Croatia from the central government, then dominated by Serbia. The present conflict is
over the Serbian enclaves in Bosnia and Croatia who are not allowed to secede and join
Serbia.
It is
paradoxical and demands explanation why peaceful secession by referendum should have
occurred in so-called totalitarian communist states whereas in western liberal states,
during a period of two hundred years (1790-1990), there have been only two cases of
peaceful secession, but a great number of cases in which secession attempts were brutally
defeated by the central government. Unhappily the Confederacy did not have the Communist
Party under Gorbachev to negotiate with; and mercifully the Soviet Republics did not have
to negotiate with the Republican Party under Lincoln. As far as I can determine, the
United States since 1865 has initially resisted
or failed to support every secession attempt in the world except the secession of Panama
from Columbia which it engineered as a means of constructing the Panama Canal. The United
States was among the last to recognize the seceding states of the Soviet Union. It did not
recognize the secession of Slovenia and Croatia (as had a number of European states), and
it persisted, long after it was unreasonable, to think of Yugoslavia as a unitary state. A
top Croatian leader, responding to Secretary of State James Baker's arrogant and dark
warning against secession, observed that Baker could not free himself from the
"American tradition of demonizing the phenomenon of secession. He didn't have an ear
for our proposal to establish a union of sovereign states."1 This should not be
surprising from a regime whose founding father is not the secessionist George Washington
or Thomas Jefferson but the violent suppressor of secession Abraham Lincoln.
Today
there are secession and devolution movements of all kinds occurring throughout the world.
Indeed, political economists estimate that no more than twenty-five states in the United
Nations are free of secessionist or territorial disputes.2 And there are also many
secession movements that stop short of claiming national sovereignty. The Eskimos and Cree
Indians of Northern Quebec have gained new rights and territory. In January of 1992,
twenty-seven northern counties of California introduced into the State legislature a plan
to secede from California and form the fifty-first state. Staten Island recently voted to
secede from New York, and Coconut Grove voted to secede from Miami.
How are
we to understand the deeper philosophical implications of this new and apparently growing
respect for secession and devolution? Richard Weaver wrote a famous book entitled Ideas Have Consequences, and indeed they do. In
what follows I would like to examine the consequences of an idea framed by the great
political philosophers of the modern era; such thinkers as Hobbes, Locke, Rousseau, Hegel,
Mill, and Marx. The idea in question is that of a modern unitary state. For two centuries
we have been living out the consequences of that idea. And if I am not mistaken, we are
witnessing, if not the disintegration of the modern state, at least the most radical
challenge to it ever posed.
But we
cannot hope to understand the modern state unless we take a look at the sort of polity it
sought to overturn and with which it has been, and still is, in a condition of constant
struggle. I shall call this anti-modern form of political association a federative polity.
The
English philosopher Thomas Hobbes, in his masterpiece Leviathan (1651), gives us the first account of the
logic of the modern state. Marx was correct when he said that Hobbes is the father of us
all. For Hobbes the state is composed of individuals who are thought of as having first
existed in a non-moral and non-political state of nature where they were free to do
anything they desired (including the greatest enormities) restrained only by the prudence
of self-interest (which is the morality of a gang of thieves and murderers) and not
sufficient to secure long term peace and security. This being an intolerable state,
individuals contract with each other to form a sovereign political office that has the
authority to rule over the actions of individuals. It makes no difference to Hobbes
whether the state has the form of monarchy, aristocracy, or democracy. What is important
is the office of sovereignty and that
sovereignty be conceived as indivisible, irresistible, and infallible. Sovereignty must
have these properties otherwise there could be two sovereign voices with no umpire above
them, and so a return to the wild anarchy of the state of nature.
Now although
the Hobbesian state is authoritarian, it is not totalitarian as some have thought. The
Hobbesian sovereign functions like an umpire; and like an umpire his task is to rule not to give commands about substantial goods.
Indeed Hobbes limits the sovereign's ability to slip into the corrupt mode of command by
limiting his revenue. The sovereign office is funded by nothing other than an excise tax.
The bloated bureaucracies of modern states with their huge public debts and vast revenues
would have been unthinkable to Hobbes. Nevertheless, the Hobbesian theory of the state
helped pave the way for the clumsy, inefficient and destructive leviathans that have
ploughed the seas of the political world for the last two centuries. The feature that
assisted in this consequence is the doctrine that sovereignty is indivisible,
irresistible, and infallible.
But
there is a further consequence. Sovereignty is said to be internal to territory. As
sovereignty is indivisible, so is territory. And from this it follows that the secession
of a people from a modern state is logically impossible, for secession would require the
territorial dismemberment of a state, and that would be to deny that sovereignty is
indivisible. It is for this reason that the great modern philosophers and those who follow
in their steps today never so much as raise the question of whether secession is morally
justified. Their main task has been to theorize and legitimate the modern state.
Just
how deep this self-imposed ignorance about secession goes can be seen in the fact that
there is only one book in English by a philosopher on secession (Allen Buchanan, Secession From Ft. Sumter to Lithuania, 1991).
And when we turn to the Philosopher's Index, which
lists all articles published by philosophers in English, German, French, Italian, and
Spanish, from 1940 to today, we find only seven articles on secession! Two are on Quebec
and the rest are on Buchanan's book. The Jackdaw is a bird, like many others, that cannot
see anything unless it is moving. Likewise the preconceptions of modern political
philosophers make it impossible for them to perceive a legitimate act of secession even if
one should occur.
It is
not surprising, therefore, to find throughout critical literature acts of secession
misdescribed as something else such as revolution or civil war. Let us briefly examine the
difference between secession and revolution. Three conceptions of revolution have
dominated modern political speech. The first derives from the Glorious Revolution of 1688.
This is revolution as restoration, and its image
is the turning of a wheel. According to eighteenth century 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 derives from John Locke.
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 has its source in the French Revolution
and may be described as Jacobin revolution. Revolution in this sense is an attempt to
totally transform an entire social and political order in accord with an egalitarian
philosophical theory. In this sense Marxism is Jacobin revolution as are may other forms
of contemporary political criticism. Gloria Steinem once said that to talk of 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. The same could be said of the
egalitarian goal informing many actions of the Supreme Court from the 1950s down to the
present. The Court has long since abandoned its traditional duty of interpreting the
Constitution as law, and has usurped the role of being the most powerful social policy
making body in the American federation.
All
three conceptions of revolution presuppose the modern theory of sovereignty, and each is
categorically different from secession. Secession is not revolution in the whiggish sense
of the Glorious Revolution because it is not the restoration of anything within the frame
of the modern state Secession is the dismemberment of a modern state in the name of
self-government. Nor is secession Lockean revolution. A seceding people do 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, secession is conservative and seeks to preserve the social order
through withdrawal and self-government.
Nowhere
has this confusion between secession and revolution led to greater moral mischief than in
the practice of describing the break with Britain in 1776 as the American Revolution The
act of the British colonists was simply and solely 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. They
wished simply to limit its jurisdiction over the territory they occupied.
Nor
were they, in Jacobin fashion, seeking to totally transform society. On the contrary they
wished to preserve the order they had, and they succeeded; the social classes and members
who successfully seceded lived to govern afterwards. But something very like a Jacobin
reading of the Declaration of Independence was given by Lincoln, and is an essential part
of the Lincoln myth that followed him.3 To say that the regime is dedicated to the
proposition that all men are created equal and that all inequalities are to be rectified
is to launch the regime on the permanent and never to be completed project of totally
transforming the social and political order. The project must be permanent because, in the
Lincolnian rhetoric, equality is left underdetermined (anything from equality before the
law, to equality of outcome, to equality of sexual orientation can and has been taken to
be the content of equality) and because equality in any non-trivial sense is nowhere to be
found in the human world. It is this project that Marx would call the "revolution in
permanence" and that would be used by Lincoln to brutally destroy the social and
political order of the South, and would be used by the Republican Party in its efforts to
"reconstruct" the mangled parts in approximation to an egalitarian ideal-a
project that was enormously profitable to the newly arrived Northern industrialists and
financiers.4
The
people of France were the first to suffer the horrors of modern totalitarian revolution at
the hands of their own government; the people of the South would be second. From a
perspective located in time after the French Revolution and after the European revolutions
of 1848, Lincoln read the Jacobin meaning of equality into the Declaration of
Independence, transforming by an act of philosophical alchemy, what was a legal brief
addressed to a forum of international law justifying secession into a perpetual project of
social and political transformation-a project that in principle, cannot be realized and
would increase the scope of evil if it could be. Many Americans identify with the
Lincolnian myth of the Declaration and are, consequently, burdened with a morally
corrupting metaphysical guilt about inequality. I say because it is always morally
corrupting to attempt to do or claim to have done what is impossible. Lincolnian Americans
stand morally disarmed today before the charge levelled by our new egalitarians (there
will always be a new form of egalitarianism)
that America is a racist, sexist, classist, homophobic society and that massive transfers
of power must be placed in the hands of the central government to effect the total
transformation of society.
They
fail to see that every society that has every existed, including those that have achieved
the highest level of human flourishing, have been (by today's impossible standards)
racist, sexist, classist, and homophobic. The result of this self-imposed moral ignorance
has been the progressive disintegration of the social fabric of the United States.
The
Jacobin reading of the break with England in 1776 is a self-serving fiction of late
nineteenth-century American liberalism, and is of a piece with the Jacobin style
revolutions that had been and were sweeping through Europe in the heyday of the Industrial
Revolution. That reading has nothing to do with the arguments deployed in a pre-industrial
age by the orderly patricians George Washington and Thomas Jefferson. They were
secessionists, and the Declaration of Independence was and is no more and no less than a
document justifying secession.
Much
has been made of the Lockean idiom of self-government in the speech of the Founders. But
it is important to understand that, though Locke allows the overthrow of a corrupt regime,
he does not allow secession. Indeed, for citizens who have given their explicit consent,
he does not even allow the right to exit, much less take territory with them.5 Locke might
have been sympathetic with the colonists' demands for representation but, if consistent,
he, like George III, would have had to stop short of secession.
So it
is a miscategorization to describe the break with Britain in 1776 as the American
Revolution. Likewise, it can only lead to moral confusion to describe the conflict arising
from the secession of eleven contiguous American States in 1861 as the Civil War. The
primordial meaning of the expression "civil war" is the English Civil War. That
was a conflict between two factions seeking to control the same government of a state. The
Confederates, however, were not seeking to control the central government of the United
States; rather, they were seceding from that government. Consequently, there was no
American Civil War. Likewise there was no Nigerian civil war in 1967-70, but the secession
of the industrious people of Biafra in an attempt to govern themselves. Biafra with
twenty-two percent of the population contributed thirty-eight percent of total revenues,
but received back only fourteen percent.6 To describe secession as "civil war"
begs every important moral question on behalf of the modern unitary state and necessarily
taints the seceding part with the brush of treason. The current moral confusion of
secession with revolution and civil war is simply another subtle way in which the modern
unitary state legitimates itself .
Secession
is, of course, a serious matter, and it is not always morally justified. But the moral
considerations that would justify secession are categorically different from those that
would justify revolution and civil war.
But if the
idea of a modern state rules out the possibility of secession, the idea of a federative
polity does not. It was in this sort of polity, in the middle ages, that the western
practice of liberty began; and although it has been challenged by the idea of the modern
state, it has never, in some form or another, ceased to exist. The idea of a federative
polity was theorized by St. Thomas Aquinas and other medieval philosophers; modern
versions are to be found in Johannes Althusius, David Hume, John C. Calhoun, and Lord
Acton. The modern state begins with individuals in a state of nature who give up the
unlimited exercise of natural rights in favor of a limited excise of them in a polity
endowed with an office of indivisible sovereignty. In contrast, the idea of a federative
polity rejects entirely the notion of natural rights. It begins, not with individuals
devoid of social and political identity, but with individuals shaped by such identities.
We may use as an example of a federative polity the theory of political order framed by
Johannes Althusius in his work Politica published
in 1603 and revised in editions of 1610 and l6l4.7
Althusius
was the theorist of the Dutch federation which David Hume described in the mid-eighteenth
century as the most illustrious government in the world. Althusius teaches that the family
is the primordial political entity, and it is
political because it contains the relations of authority and subordination. Families may
form a village and generate another political authority in the form of the village
council. Villages may form provinces and the authority of provincial councils. Provinces
may form a commonwealth of provinces and the office of state authority. Individuals may
form voluntary associations which Althusius calls collegia: guilds, trade associations,
universities, the church, and corporations of all kinds, including cities.
The
state is the symbiotic relation of these corporate bodies ranging from the family to the
commonwealth. Each corporate body is conceived as a substantial moral community with
something of its own to excel in, to enjoy, and to defend Each is an independent social
authority. Sovereignty resides in the people, but not the people conceived as an aggregate
of individuals pursuing their natural rights, but as incorporated into independent social
existences. From this it follows that sovereignty is not indivisible, but is jointly
shared by those independent social authorities whose symbiotic relation constitutes the
state. Consequently, Althusius argues that a province, an estate, or any other corporate
entity having the means and dignity to do so may legally
secede from the polity to join another political association or to remain independent.
Similar arguments for secession are to be found in Hume, Calhoun, and Lord Acton.8
To the
modern response that divided sovereignty is absurd and must lead either to political
impotence or to violent strife, David Hume replied in an essay entitled "Of some
Remarkable Customs" that the most energetic and illustrious republic in history (the
Roman republic) functioned quite well with a system of divided sovereignty. The comitia centuriata and the comitia tributa were distinct legislative bodies;
both were sovereign; neither was subordinate to the other; and both were capable of giving
laws that could contradict the laws of the other. Yet such contradictions never occurred.
Hume goes on to show that what cannot be reconciled in an abstract theory can be united in
the soul of an amiable character or in the soul of a loyal and skillful participant in an
inherited political tradition.9 The Swiss republic is over six hundred years old, and it
operates with a system of divided sovereignty; indeed, it perfectly exemplifies what
Calhoun called the principle of concurrent majority.10
The
first truly modern unitary state was that framed by the French Revolution. Prior to that,
Europe was an order of federative polities. At the time of William the Conqueror there
were thousands of independent political units. By the beginning of the eighteenth century
there were still hundreds left: principalities, dukedoms, bishoprics, papal states, small
republics, city states, margraves, free cities. Even so-called absolute monarchies were
highly federated polities. The great number of titles the monarch had was not due to
vanity, but was a recognition of the independent orders over which he ruled, whose titles
were as good as his own, with whom he had to negotiate, and who hedged in his power. An
absolute monarch could not impose an income tax on his people, and he could not enact
universal conscription. Wars tended to be short and casualties light because troops had to
be paid for out of the King's purse or by powerful independent proprietors, who had an
economic interest in limiting the scope of war. All of this abruptly changed with the
appearance of the modern state. The French Revolution destroyed all independent social
authorities: the monarchy, nobility, the Church, provincial and local authorities, the
States General, and even an independent judiciary. The people were now free of the
oppressions these independent social authorities could impose, but they were also without
their protection. The people collapsed into an aggregate of individuals under an
all-powerful government ruling in the name of the natural rights of individuals, and
determined to spread this doctrine throughout Europe.
On the
eve of the Revolution the French monarch had a military force of around I 80,000,
Frederick the Great had a force of 190,000, and Austria of 200,000. What no absolute
monarch had dared to dream of, the French Republic now did. It ordered universal
conscription, and suddenly placed in the field an army of a million men, which rolled back
the frugal monarchies of Europe. New aggressive tactics were developed by Napoleon, which
brought victory but required high casualties; something the monarchs could not have
afforded. This, however, did not bother the Republic because the cost was born by an
abstraction known as the "public" and not by proprietors. Through conscription
the French would eventually raise three million troops, the largest army ever gathered in
the world.
In
response to the French Revolution other European states began to take on the form of the
modem unitary state; more and more independent social authorities were destroyed,
marginalized, or corrupted by becoming agents of the state which engrossed ever more power
to the center. By the twentieth century that state could not only conscript troops, it
could impose an income tax on individuals. Endowed now with a formidable revenue, its wars
would become spectacular barbarisms. World War I resulted in eight million battle deaths
and six million wounded. (This was more than were killed in all wars in Europe during the
previous two centuries of "civilized warfare," gradually instituted after the
barbarism of the Thirty Years War of 1618-1648.)
Before
World War I Germany imported a third of its food. By 1918 the allied blockade had reduced
Germany to the edge of mass starvation. In desperation Germany surrendered November, 1918
with the assurance from Article 26 of the Armistice that the blockade would be lifted. But
the blockade was continued for nearly a year to ensure compliance with the impossible
demands of the Treaty of Versailles. Nearly a million Germans are documented to have died
of forced starvation, mostly women and children; and a generation would suffer from
physical and mental deformities due to malnutrition during the formative period of
infancy.11 This was the first of the great twentieth century holocausts that the modern
state now had the power to inflict on civilians. To around a million Germans starved by
the Allies would be added six million Jews killed by the Nazis. From 1930-1933 Stalin
killed, by forced starvation, over 14 million in the area of the Ukraine and Caucasus.
World War II resulted in over 50 million deaths. But even this barbarism was dwarfed by
the totalitarian revolutions carried out by modern states against their own people in the
name of the Marxist ideal of equality, resulting in, by a conservative estimate, 100
million deaths. R.J. Rummel, in his important study of the mass murder of peoples by the
modern state, has argued that governments in pursuit of ideological goals have killed
nearly four times as many people as all the
battle deaths in all wars, domestic and foreign, fought since 1900. The greatest threat to
human life in the twentieth century has not been war (and not even nuclear war), but the
governments of modern unitary states.12
Now
what must be stressed here is that this enormous destruction was due primarily not to
advanced technology nor to the wickedness and madness of certain leaders (as important as
both of these were) but to the structure of the
modern state itself: the destruction of independent social authorities and the massive
concentration of power at the center. Had Hitler and Stalin been absolute monarchs in the
eighteenth century, they could not have carried out the destruction they did, simply
because they would not have had the authority to
do so. They would have been hedged in by powerful independent social authorities whose
titles were as good as their own and who could be expected to resist.
Nor can
we say that the influence of evil ideologies such as fascism or Marxism caused such
destruction. We must keep in mind that the first totalitarian state was a liberal state, the French Republic, ruling in the
name of the natural rights of individuals. And it was a liberal regime, the United States
under Abraham Lincoln, that broke with the European code of civilized war by demanding
unconditional surrender and launching total war against the civilian population of the
South, resulting in 1,500,000 killed, missing, and wounded. 13 It was liberal regimes that
transformed what could have been a limited war in Europe into World War I, a holy crusade
to entirely restructure Europe and make the world safe for democracy. And it was liberal
regimes in pursuit of that crusade that imposed starvation on Germany after the Germans
had surrendered and were helpless. It is the structure
of the modern state itself, independent of whether it wears the mask of liberalism,
fascism, or Marxism, that has a lot to answer for and must be called into account. If the
destruction done by the modem state had been carried out by the Church or by an
aristocratic class, judgment would have been clear, and it would have been severe. As it
is, the modem state masks itself in moral ideologies which obscure its actual conduct.
One of
the most compelling and insidious of these ideologies is the doctrine of natural rights.
It was to secure these rights that the modern state was invented in the first place, and
it is impossible, especially for Americans, not to be seduced by the doctrine. But it is
nonetheless a philosophical superstition.
The
reason is this. Whatever they might be, natural rights are universal and apply to all men.
Further, they are known by reason, independent of any inherited moral tradition. From the
point of view of natural rights, moral traditions are tainted with particularity even when
they make universal claims. For example, Christianity is a moral tradition that makes
universal claims; it is open to all men, and it applies to all men. But its ground is the
incarnation of God in one man, which is a scandalous particularity that logically
contradicts the abstract universality of natural rights. Now all inherited moral
traditions that give life to those communities that cultivate the goods of human
excellence are tainted with this sort of scandalous particularity. It follows, therefore,
that the doctrine of natural rights must be in a condition of permanent hostility to all inherited moral tradition. Any such
tradition, no matter how noble the goods of excellence cultivated in it, can always be
seen as violating someone's natural rights under some interpretation or another.
A
modern state obsessed with the doctrine of natural rights, if consistent, will attempt to
destroy, suppress, or otherwise remove from public life all independent social authority.
This was the force of the doctrine when it made its first appearance in the French
Republic. Benjamin Constant, a keen observer of the French Revolution, put his finger on
the tendency to totalitarianism of all modern
states (including liberal regimes): "The interests and memories which spring from
local customs contain a germ of resistance which is so distasteful to authority that it
hastens to uproot it. Authority finds private individuals easier game; its enormous weight
can flatten them out effortlessly as if they were so much sand.14 Tocqueville gave
melancholy witness to the process since repeated over and over: "The old localized
authorities disappear without either revival or replacement, and everywhere the central
government succeeds them in the direction of affairs.... Everywhere men are leaving behind
the liberty of the Middle Ages, not to enter a modern brand of liberty, but to return to
the ancient despotism; for centralization is nothing else than an up-to-date version of
the administration seen in the Roman empire."15 By "medieval liberty"
Tocqueville meant what I have called a federative polity of independent social
authorities, and he hoped in vain for a modern version of such a polity. The French
revolutionary leader Sieyes explains that such cannot be tolerated in a modern state:
"France must not be an assemblage of small nations each with its own democratic
government; she is not a collection of states; she is a single whole, made up of integral
parts; these parts must not have each a complete existence of its own, for they are not
whole joined in a mere federation but parts forming a single whole.... Everything is lost
once we consent to regard the established municipalities, the districts, or the provinces
as so many republics joined together only for the purposes of defense and common
protection."16
If
natural rights transcend all inherited moral traditions, then there will be no
non-arbitrary way to know what those rights are. When the doctrine first appeared the
rights called "natural" were few: life, liberty, and property. The United
Nations Declaration of Human Rights includes, among many others, the right to a job and a
paid vacation. And there is, of course, a right to equal opportunity, from which it
follows that there must be a right to equal outcomes, since failure to achieve equal
outcomes can always be interpreted as a sure sign that equal opportunity has not been
satisfied. And so there must be affirmative action; racial, ethnic, and gender quotas; and
now the Supreme Court tells us that there is a special set of civil rights that gays have
which the state of Colorado failed in its constitution to recognize. Today anything one
desires could become a natural or human right if one has sufficient political power and
lack of shame to demand it.
This
promiscuous explosion of individual rights has been at the expense of those independent
social authorities and communities that cultivate the goods of human excellence that go
into the formation of noble and virtuous character. It is for this reason that public
moral discourse today is the discourse of rights and
seldom ever the discourse of virtue.17 Indeed,
the United States has become what is proudly, but foolishly, called a culture of rights.
But it is in fact a regime in a condition of chronic low-grade civil war; an endless
number of new rights generating an endless number of new victims and oppressors; strident
protest and counter-protest that one's rights have been violated; a country held together
not by the obligations and sympathies of a common vision of human excellence but by legalism. Our rulers are Supreme Court judges,
our parish priests are lawyers, and our entertainment watching trials and talk shows about
trials on television.
We can
no longer say that the social fabric of the United States is in danger of coming apart; it
is coming apart. The most fundamental of those independent social authorities that make
possible the goods of excellence is the family. The Supreme Court's recent ruling against
the amendment to the Constitution of Colorado, which denies that homosexuals are endowed
with a special set of civil rights, would appear to make it impossible for a state to
prohibit gay marriages and so to uphold the dignity and special status of the family.
The
wild absurdities we are now living through are in large part the result of trying to
transform what began as a federative polity on a continental scale into a modern unitary
state, the goal of which is to establish an egalitarian ideology. The Southern Confederacy
was an attempt to block that move. It presented the world with the first case of a
vast-scale federative union with a strong central government that nevertheless allowed the
secession of member states. The next such constitution would be that of the Soviet Union,
which in Article 17 allowed the secession of member republics. And it was Marxist
international jurists, not liberal ones, that were the strongest advocates of
self-determination and secession during the cold war.18 This was viewed as hypocrisy on
behalf of Soviet influence (as indeed it often was), but it was no more hypocritical than
Lincoln's "Gettysburg Address," which presented the Union as fighting to
preserve self-government when it was in fact engaged in a total war against the people of
the South to destroy self-government. And the irony is complete when we consider that the
Soviet regime did allow peaceful secession of its fifteen member republics. With the
experience of hindsight we can see that the Confederate Constitution was well ahead of its
time.
Europeans
at the time of the War for Southern Independence recognized that the Union was engaged in
a Jacobin revolution to create a unitary state
Marx and Mill rejoiced in the project of destroying the federative order, as did the
British liberal journal The Spectator which
declared in December, 1866: "The American Revolution marches fast towards its
goal-the change of a Federal Commonwealth into a Democratic Republic, one and
indivisible."19 The so-called "Civil War" was in fact America's French
Revolution.
But
Lord Acton (famous for his maxim that power tends to corrupt and absolute power corrupts
absolutely) viewed what he too called "the American Revolution" with alarm. He
had admired the federative character of the original American polity as the best example
of how an ethic of individual liberty could be reconciled with the independence of
substantial moral communities, and he admired the Confederacy as the most advanced
expression of such a polity. He thought the triumph of the Union was a disaster because it
would encourage the trend toward consolidationism and nationalism that was transforming
Europe into an order of French revolutionary style republics. Of the Union victory, he
wrote prophetically in January of 1866: "The cause that was to triumph comes forth
from the conflict with renovated strength and confirmed in the principles which must react
dangerously on the other countries of the world. The spurious liberty of the United States
is twice cursed, for it deceives those whom it attracts and those whom it repels. By
exhibiting the spectacle of a people claiming to be free, but whose love of freedom means
hatred of inequality, jealousy of limitations of power, and reliance on the State as an
instrument to mold as well as to control society, it calls on its admirers to hate
aristocracy and teaches its adversaries to fear the people. The North has used the
doctrines of Democracy to destroy self-government. The South applied the principle of
conditional federation to cure the evils and to correct the errors of a false
interpretation of Democracy. "20
What
Acton said about the condition of both fearing
the people and hating aristocracy has come to pass. The current central government of the
United States hates inequality, but it also fears the people. We cannot govern ourselves
today within that vast domain of unenumerated powers the States reserved to themselves in
the Ninth and Tenth Amendments because, in the new would-be unitary state, these
amendments are considered a dead letter. There is no law an American state can pass that
cannot be overturned by the arrogant social engineers of the Supreme Court, who in the
last fifty years have played with the inherited moral traditions and federative polity of
the American people like a quack with a hapless patient.
The
modern unitary state is only two hundred years old. Its great achievement is to have
produced a condition of unparalleled material prosperity. But it has also been one of the
most destructive forces in history. Its wars and totalitarian revolutions have been
without precedent in their barbarism and ferocity. But in addition to this, it has
persistently subverted and continues to subvert those independent social authorities and
moral communities on which eighteenth-century monarchs had not dared to lay their hands.
Its subversion of these authorities, along with its success in providing material welfare,
has produced an ever increasing number of rootless individuals whose characters are
hedonistic, self-absorbed, and without spirit. We daily accept expropriations, both
material and spiritual, from the central government which our ancestors in 1776 and 1861
would have considered non-negotiable.
The
modern state absolutely prohibits secession, but places no limit on the expansion of its territory and sovereignty. And in
this we catch a glimpse of its imperialistic character. In principle there is nothing to
prevent the modern state from becoming a world government, ruling in the name of the
natural rights of individuals, or approximating such a government. The modern state is a
re-enactment of the impiety of Nimrod in the Biblical story of the Tower of Babel.21 And
in the many secession and devolutionary movements in the world today, we may be witnessing
the action of Divine Providence that in the story confounded the languages of mankind and
sent each back to his own nation.
How do
we restore the character of a federative polity in the wreckage of American society? This
is a topic for another day, but I would like to close with a few suggestions. History
shows that the logic of the modern state is such that every attempt to limit its growth by
reforming the center leads to an increase in its power. French revolutionaries were
sincere in their claims to limit the centralized administration built up by absolute
monarchy, but they vastly increased it and even created a reign of terror. Marx was
sincere in his hope that the state would wither away. Reagan and Margaret Thatcher sought
to reduce the size of the central government; but when they left, its powers were much
greater than before. If the current Republican budget had been passed, it would have
generated a fifty billion dollar increase in
spending.
What we
must begin to do is throw into question the legitimacy of the modern consolidated state
itself. We must stop working on the Tower of Babel. Constitutionally, this means that the
states must reassert their sovereignty under the Ninth and Tenth Amendments and recall
those powers they have allowed to slip out of their hands to the central government. We
must restore the Jeffersonian and Madisonian tradition of state interposition.22 The
States must once again become constitutional members of a genuine federative polity as
they were during the ante-bellum period and beyond when states throughout the union
interposed their authority and even nullified actions of the central government that they
judged unconstitutional. History textbooks present nullification as a wild and unpatriotic
policy of John C. Calhoun. But a genuinely federative polity, designed to preserve
distinct social and political societies, must allow some form of legal corporate resistance. Calhoun is
distinguished only in having provided the deepest philosophical justification by an
American for a federative polity and for some form of nullification.23
The
Canadian Federation allows Provinces to nullify actions of the central government in the
area of civil rights.24 As some northern states nullified the Dred Scott decision, so
Colorado should nullify the recent Supreme Court decision overturning its constitutional
amendment prohibiting special civil rights for homosexuals, invoking the Ninth and Tenth
Amendments for its authority to do so No American state has ever delegated to the central
government the authority to determine its sexual morality. We must counter
unconstitutional runaway judicial activism with the constitutional remedy of state
activism.
I
remember reading during the bicentennial period about a New England town (the name of
which I have forgotten) that, in the 1770s, passed a resolution declaring the British
Parliament a public nuisance. The public debt of the central government is five and a half
trillion dollars, but its unfunded liability, if one includes such things as social
security, is in excess of fifteen trillion dollars. If these serious obligations are met,
the next generation must be taxed in excess of 84 percent of income.25 The savings and
loan bailout cost five hundred billion dollars. Assuming 6 percent interest, the
generation of males born after 1990 have inherited a debt of $9.4 thousand each. Had
mismanagement of this scale occurred in a European Parliamentary regime, it would have
brought the government down. But Washington is so remote and abstract that moral
accountability is not to be expected. The politicians that created the catastrophe did not
fall. Little Vermont had no failed savings and loan institutions. But its share of the
bailout is over a billion dollars. Should we not expect a resolution from the legislature
of Vermont (echoing the virtue of their eighteenth-century ancestors) declaring the
central government of the United States a public nuisance?
Sadly
such resolutions are not forthcoming from the States. There is a profound lack of
political imagination in America. We still look superstitiously
to the central government as the object of all our hopes and fears. Many Americans do
not know their own constitutional history; they do not know the constitutional authority
States have exercised and can exercise again. For over a hundred years we have been taught
the ideology of the modern state in the version that Lincoln seared into the national
consciousness with a writ of fire and sword. It teaches that divided sovereignty is a
horror; that consolidation is a good thing and that secession is a bad thing. It tells us
that sovereignty originally resided in the American people in the aggregate and not in the
people of the several states, and that the central government created the states as
administrative units of itself. All of these teachings are false.26
The
Lincolnian myth must be refuted with the Jeffersonian account that the constitution is a
compact between the people of the states creating a central government as their agent and
endowing it with only enumerated powers; and, further that the central government is not
and cannot be the sole authority in determining what powers were delegated and what
reserved. The Jeffersonian story is one of dynamic federalism and the self-government of
distinct political societies. The Lincolnian story is one of increasing centralization,
consolidation, and political ossification. That we have fallen under its sway explains the
surprising lack of political imagination in America today.
As part
of expanding this imagination, we must work to remove the moral and philosophical
prejudice against the very idea of secession. America was born in secession; secession is
essential to the idea of a self-governing people; and until 1865 was widely considered an
option available to an American state in all parts of the union.27 But secession short of
national sovereignty is also possible. Parts of cities and counties may secede. A part of
a state may secede and form another state as twenty-seven counties in northern California
proposed to do in 1992. The mere discussion of the merits of such proposals, whether or
not they succeed, will serve to detoxify the idea of secession and re-awaken in Americans
the long slumbering notion of self-government induced by the opiate of the Lincolnian
ideology of a modern unitary American state.
Lord
Acton hoped the Confederacy would serve as a model to the world of what a vast scale
federative order should be. he wrote to Robert E. Lee November 4, 1866: "I deemed
that you were fighting the battles of our liberty, our progress, and our civilization; and
I mourn for the stake which was lost at Richmond more deeply than I rejoice over that
which was saved at Waterioo."28 Such was not to happen. But something of what Acton
had in mind can be discerned in the European Union which has incorporated into its
treaties the principle of "subsidiarity," a doctrine framed by medieval
philosophers in an era when Europe was an order of federative polities. The principle
states that as much social and political policy as possible should be carried out by the
smallest unit. The larger the unit the less there will be to do. The final story on the
European Union is yet to be told, and the doctrine of "subsidiarity" appears to
be as much a mask for consolidating power as a genuine federative practice. Nevertheless,
the Union has unleashed centrifugal forces of devolution9 transforming what were once
modern unitary states into something approximating federative polities. For example, the
highly centralized state of Spain has devolved power to seventeen autonomous provinces
which negotiate with the center about their rights and obligations. This has moved the
Basque provinces and Catalonia closer to independence. Indeed the European Union has now
recognized Catalan as an official European language. Belgium, once a unitary state, has
devolved power to four states in an order called asymmetrical federalism, meaning that the
states have unequal rights, privileges, and obligations. And it is highly likely that we
will soon see a new Scottish Parliament in Edinburgh. The Nobel Laureate James Buchanan
has urged that the European Union include in its constitution the right of a member state
to secede; so far this has not been done, and its omission will probably one day cause
serious problems. But as things stand now, the trend to devolution brought on by divided
sovereignty, which is made possible by a supra-national authority with which the member
states must negotiate, is transforming Europe into the morally superior condition of a
federative polity. The danger, of course, is that a powerful faction may one day seize the
central authority (as happened with the United States, 1861-1877) and attempt to transform
the whole into a unitary state.
Finally,
the modern state, from the very first, was thought of as a large state. Hobbes rightly
called it "Leviathan." Its main goal was what Hobbes called commodious living,
and it was thought that economic integration required political integration into a larger
polity. But economic viability should not be confused with self-sufficiency. Few if any
states are self-sufficient. Japan is not self-sufficient. It imports ninety-eight percent
of its oil, and it cannot feed itself. Little Singapore is a city state that seceded from
the Malaysian federation, but it is integrated into a world economy and is not only
viable, but flourishing.
Even
the United Nations now understands this. Upon its founding, it insisted that member states
have a certain size. Today it has abandoned that requirement. There are fifty-five member
states with populations under a million, and a number of these have populations under
100,000. There are twenty-three states smaller than New York City, and some smaller than
Central Park.29 There is no reason today why, here and there, an order of city states
cannot again flourish. The little city state of Athens, in three generations, produced
such a flourishing culture that much of Western civilization may be said to be a series of
footnotes to it. The city state of Medici Florence produced the Renaissance; the free
cities of Germany produced Goethe, Hegel, Mozart, and Beethoven.
The
modern state is not a fated existence; it is a human artefact only two hundred years old.
And it no longer has the authority it once had. The secession and devolution movements in
the world today, along with the demonstrated viability of small states, raises new and
exciting possibilities. Americans have not rejected these possibilities; they simply have
never occurred to them. The reason is that they are still under the spell of the
centralized modern state founded in the Lincoln myth. Ours is the uphill task of refuting
that myth both as an historical account of the American polity and as a moral and philosophical account of the best form of
political association. That form is and has always been some form of federative polity
with the right of secession. Its primal symbol is the Exodus from Egypt. And, as Mel
Bradford has taught us, we must refute also the blasphemous puritan ideology of the
Lincoln myth which pretends to speak the speech of God and, in the Cromwellian
"Battle Hymn of the Republic," teaches slaying and laying waste in the name of
the Lord. The Union was not in 1861 and is not now the last best hope on earth. We must
teach Americans to lay down their tools, stop building the Tower of Babel, and return to
their respective homes. For as the poet said:
Those who in
fields Elysian would dwell,
Do but extend the boundaries of Hell.30
References
1. Lenard J.
Cohen, Broken Bonds (Boulder: Westview Press,
1995), p.221.
2. Milica
Zarkovic Bookman, The Economics of Secession
(New York: St. Martin's Press, 1992), p.7.
3. M.E.
Bradford, A Better Guide Than Reason (New
Brunswick: Transaction, 1994), pp.185-203 and pp.29-57. See also "Dividing the House:
The Gnosticism of Lincoln's Rhetoric," Modern
Age, 23 (1979), pp. 10-24; "The Lincoln Legacy: A Long View," Modern Age, 24 (1980), pp.355-63; and Reactionary Imperative (Peru: Sherwood Sugden
Co., 1990), pp.219-27.
4. Ludwell
Johnson, North Against South, The American Iliad
1848-1877 (Columbia: The Foundation for American Education, 1995), see chapters 6 and
7.
5. John
Locke, Two Treatises of Government, ed. Peter
Laslett (Cambridge: Cambridge University Press, 1988), p.349.
6. Allen
Buchanan, Secession: The Morality of Political
Divorce from Fort Sumter to Lithuania and Quebec (Boulder: Westview Press, 1991),
p.41.
7. Johannes
Althusius, Politica (Indianapolis: Liberty
Fund, 1995).
8. Althusius,
pp.197-8; Hume defended the right of the Colonists to secede and was the only major
British thinker to take this view, a position he adopted as early as 1768 and maintained
to his death August 25, 1776. I discuss the
reasons for his position in "Hume, English Barbarism and American Independence,"
in Scotland and America in the Age of Enlightenment,
ed. Richard Sher and Jeffrey Smitten (Princeton: Princeton University Press, 1990),
pp.133-47; Acton, pp.216-279, 361-7. John C. Calhoun, A Disquisition on Government and A Discourse on the Constitution and Government of
the United States in The Essential Calhoun,
ed. Clyde Wilson New Brunswick: Transactions Press, 1991). See also Union and Liberty, The Political Philosophy of John C.
Calhoun, ed. Ross Lence (Indianapolis: Liberty Classics, 1992). Reprints of the first
edition of Calhoun's Disquisition and Discourse
will soon appear in The Southern Renaissance
Collection, a series of Southern classics published by Fletcher and Fletcher of North
Charleston, South Carolina. Lord Acton, Essays in
the History of Liberty, 2 vols. (Indianapolis: Liberty Classics, 1985), Vol.1, essays
19-24.
9. David
Hume, Essays Moral, Political, and Literary, ed. Eugene Miller (Indianapolis: Liberty
Classics, 1985), pp.366-76.
10. In the
Swiss federation decisions are reached not by majority vote but by Calhoun's
"concurrent majority," i.e., by a kind of consensus. This principle operates at
each level of government: parish, canton, and central government. And even when the
central government enacts a law, it is subject to veto in a referendum. Though the central
government has repeatedly tried to bring Switzerland into the European Union and into the
United Nations, it has failed because the people have vetoed the legislation by using the
referendum. The Swiss government, like any other, seeks to cut an expensive figure in the
world; its power to do so has been checked by the veto of the referendum. It is no
accident that the Swiss people who have all this power also have a militia army.
11. C. Paul
Vincent, The Politics of Hunger; The Allied
Blockade of Germany, 1915-1919 (Athens: Ohio University Press, 1985).
12. Robert
Conquest, The Harvest of Sorrow, Soviet
Collectivism and the Terror-Famine (Oxford: Oxford University Press, 1986), p.303. See
also by Conquest The Great Terror, A Reassessment (New
York: Oxford University Press, 1990). The World
Almanac Book of World War H ed. by Peter Young (Englewood Cliffs: Prentice-Hall),
p.614. See R.J. Rummel, Death by Government (New Brunswick: Transaction Press, 1994)
and earlier studies cited in this work.
13. B.H.
Liddell Hart, The Revolution in Warfare (Westport:
Greenwood Press, 1947), pp.72-4.
14. Quoted in
Bertrand De Jouvenel, On Power (Indianapolis:
Liberty Classics, 1993), p.253.
15. De
Jouvenel, p.285.
16. De
Jouvenel, p.286.
17. Alasdair
MacIntyre has launched a devastating criticism of what happens when liberalism seeks to
found a society on the philosophical basis of rights
alone at the expense of virtue. See After Virtue
(Notre Dame: University of Notre Dame Press, 1988); whose Justice, which Rationality? (Notre Dame:
University of Notre Dame Press, 1988) and Three
Rival Forms of Moral Enquiry Notre Dame: University of Notre Dame Press, 1990).
18. Lee
Buchheit, Secession, The Legitimacy of Self
Determination (New Haven: Yale University Press, 1978), pp. 100ff. This is an
excellent discussion of whether a right of secession can be recognized in international
law.
19. The Spectator, December22, 1866, p.1420.
20. Acton, p.
278.
21. This
identification of the modern state with the Tower of Babel was inspired by Michael
Oakeshott who wrote two essays entitled "The Tower of Babel." One appears in Rationalism in Politics and Other Essays (Indianapolis:
Liberty Classics, 1991); the other in On History and
other Essays (Totowa: Barnes and Noble, 1983).
22. For an
excellent discussion of this constitutional tradition, see James Kilpatrick, The Sovereign States (Chicago: Henry Regnery Co.,
1957). For a discussion of how Madison was both
a founder of and a subverter of this tradition see Kevin R. Gutzman, "A Troublesome
Legacy: James Madison and The Principle of 98'," Journal of the Early Republic (Winter, 1995),
vol.15, No.4, pp 569-89.
23. Calhoun's
Disquisition and Discourse cited above.
24. Section
33 of the Constitution Act of 1982, known as the "notwithstanding clause." The
use of this section has enabled Quebec to nullify legislation by the central government in
the area of civil rights which was intended to consolidate it into a Canadian version of
the "melting pot."
25. See
Laurence J. Katlikoff, "Generational Accounting," NBER Reporter (Winter, 1995/6), pp. 8-14; and "Working Paper
#9103," Federal Bank of Cleveland (March, 1991), p.34.
26. The first
systematic statement of the nationalist theory of the Constitution was given by Joseph
Story in Commentaries on the Constitution of the
United States (1833), 2 vols. See vol.1 ¶ Book III, Chapter III. Although Daniel
Webster began his career as a New England secessionist, he converted to the nationalist
theory and became one of its most eloquent exponents. See The Writings and Speeches of Daniel Webster, 18
vols. (Boston, 1903), vol.6, pp.196-221. One of the earliest studies of the Constitution
was by the Pennsylvania federalist William Rawle, A
View to the Constitution (1825). In the last chapter, entitled "The Union,"
Rawle argues that since the States are sovereign, they can unilaterally secede from the
federation. A new edition of this work has been edited by Walter Kennedy and James Kennedy
(Baton Rouge: Land and Land Publishing, 1993). The first systematic refutation of Story's
thesis that the States were never sovereign was given by Abel Upshur, a distinguished
Virginia jurist and Secretary of State under Tyler in A Brief Enquiry into the True Nature and Character of
our Federal Government, Being a Review of Judge Story 's Commentaries (Petersburg, 1840). The best defense
of the thesis that the States were sovereign and that secession was a right available to
an American State is found in Albert Taylor Bledsoe's Js Davis a Traitor, or Was Secession a Constitutional
Right Previous to the War of 1861? (Baltimore: Innes and Co., 1866). Both Bledsoe's
work and Upshur's have been reprinted recently by Fletcher and Fletcher Publishing Co.,
North Charleston, S. C. On the sovereignty of the States, see also H. Van Tyne,
"Sovereignty in the American Revolution: An Historical Study," American Historical Review (April, 1907), 12:
pp.529-45
27. The best
defense of secession as a legal right available to an American state was given by Albert
Taylor Bledsoe, Is Davis a Traitor? This
southern classic has long been out of print. It should be read by every American; it will
shock most to discover what the Constitution of the Framers really was. Happily a new
edition in now available, issued by Fletcher and Fletcher Publishing North Charleston, S.
C., 1995).
28. Acton, p.
363.
29. See
Buchheit on microstates, p.233; and Robert W. McGee, "Secession Reconsidered," Journal of Libertarian Studies, 11:1 (Fall,
1994), pp. 11-33.
30. This
verse is the ending of Oakeshott's essay, "The Tower of Babel," in On History and Other Essays.
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