Centerfield

The largely unexamined weakness in any secession discussion is this: what is the objective criteria that you use to define who can secede? For example, if Quebec can secede from Canada, why cannot the (mostly native) people of the northern 3/4 (4/5?) of Quebec choose to secede from Quebec -- whether they then rejoin Canada or not? Just because they have most of the natural resources . . . .

And does either the departing group or the remaining one have to be geographicly contiguous? Or have at least one border with either a third country or an ocean? Or can you pick out a bunch of scattered areas -- and if so, what is the minimum size for such an area?

For that matter, does the group which wants to secede have to be based on geography at all? (Unless you want to make the minimum area a single residence.) Or, failing that, based on at least a common racial, ethnic, or descent grouping? Or can all of us who prefer tea over coffee set up independently? Or Mac users separately from PC users? Or any other basis you like? Sure, there might be some areas which would then have to be negotiated by treaty, rather than by legislation. But that's hardly an insuperable hurdle.

Posted by: wj at January 28, 2007 03:00 PM

Lioncoln was pretty explicit that "justification" was not a real consideration in his response to the secession of the South. His concern lay not with any legal right of the South to secede, but with the overall effects on the nation.

IOW, it's a rather subjective question.

Posted by: Tully at January 28, 2007 03:20 PM

It's a hot topic right now with the status of Kosovo. If Kosovo gets full independence there are a lot of places that want to use it as a precedent to follow suit.

Posted by: Susan at January 28, 2007 06:14 PM

Tully is right on. The Constitution clearly gives the states the legal right to secede from the Union. Lincoln decided it was more important to preserve the Union than to abide by its law.

That being said, the most compelling argument I've ever heard about whether another "civil war" could happen was that people don't associate with the states anymore. We tend to see ourselves as Americans than happen to live in whatever state. So it would seem that there aren't distinct sides to take in such a context.

Of course, the downside of all that is that the Federal government now runs amok doing whatever it thinks is best, and there really isn't much people can do about it. Originally, the states were intentionally given the power to keep the Federal government in check, and of course the option to secede if all else failed. Now, states have either given up or allowed their power to be taken and we're stuck with the monstrous disaster that is the Federal government.

Posted by: Justin at January 29, 2007 08:21 AM

I don't think there's much to be learned or gained by looking at it as a moral question. I think it's a question of ability (means) and desire.

First a given group has to have the desire, and then all they need is the means/ability to do so. And I'm talking about real world means, not legal means. If a group can, then they can, and that's all that matters. And even if they have the legal or constitutional right, that may not matter if the group they've chosen to discontinue belonging to has decided they are not willing to let them do so.

IOW, I think rights and morals have far less to do with it than we'd like them to... .

And geography really does have a lot to do with what you "can" do. Louisiana or North Carolina is bound to have an easier time physically than say Tennessee or Nebraska, because the rest of the nation would have those latter states surrounded and could make it hard for them on any number of counts. As far as the US is concerned, I think secession is no more than a pipe dream. All the fed have to do is tell them they can pay for their own roads and no SS or medicare for secessionists, and the state would cave.

Posted by: bk at January 29, 2007 10:08 AM

Is this Civil War?

Posted by: Maxtrue at January 29, 2007 11:43 AM

And is this a Civil War?

Posted by: Maxtrue at January 29, 2007 11:52 AM

And of course, is this a Civil War?

Darfur, Somalia, Nigeria, and other "hotspots" have some elements of a "civil" war, but with proxy-wars, East/West and Shia/Sunni conflicts, and suspect reporting it is hard to tell.

Posted by: Maxtrue at January 29, 2007 12:05 PM

i don't see much point in such fish or fowl arguments, outside of academics.

Each one of these situtations are what they are. Whether any one of them is or isn't a CW just doesn't tell us what sort of approach we ought to take. For that, you need the specifics beyond the title.

Posted by: bk at January 29, 2007 01:49 PM

Justin -

The Constitution clearly gives the states the legal right to secede from the Union

Whether that's correct or not is one thing, but it certainly isn't clear. What's your support for that proposition, textual or otherwise?

Seems to me that you'd have to appeal to some kind of natural law. "A nation is a historically constituted, stable community of people, formed on the basis of a common language, territory, economic life, and psychological make-up manifested in a common culture ... A nation has the right to arrange its life on autonomous lines. It even has the right to secede." Something like that, right? (Anyone want to guess who said this without googling it?)

Posted by: Simon at January 29, 2007 03:02 PM

"First a given group has to have the desire, and then all they need is the means/ability to do so. And I'm talking about real world means, not legal means. If a group can, then they can, and that's all that matters. And even if they have the legal or constitutional right, that may not matter if the group they've chosen to discontinue belonging to has decided they are not willing to let them do so."

The examples I stated show that by your criteria, these conflicts I linked are "civil wars". In fact, the line is very blurred and a meaningful use of the term "civil war", requires more than your generalizations.

If Lebanon is really a civil war then one set of actions might be better than another set. If Iraq is really a civil war and not the Wild West it is, then another set of actions might be less or more helpful. Civil chaos is a bit different from civil war. Viet Nam was certainly not an insurrection against a corrupt government. If it was, then it was war of liberation.

Do legal frameworks and morality play a role? Hell yes. Seeing the power of outside powers, the intervention they might or not be compelled to engage in is affected by the legal and moral framework. There has been a determined Democrat push to call Iraq a civil war, as well as in Lebanon. Understanding they might not be, goes a long way towards solving the chaos. Liberation, coups, proxy wars, civil war are different and require different manuals. LOL. Many do not want to call Gaza a civil war, but if it is, perhaps Hamas and Fatah should subdivide the land they share and separate. I’m not sure succession is permitted in their Constitution.

Of course, Somalia is not a civil war. Genocide, unfortunately, requires international response of a different magnitude.

Posted by: Maxtrue at January 29, 2007 06:05 PM

Whether that's correct or not is one thing, but it certainly isn't clear. What's your support for that proposition, textual or otherwise?

You're right Simon, I did misspeak. The Constitution does not give explicit rights to secede. However, the history of the signing does give implicit permission. Two of the colonies, New York and some other, refused to ratify the Constitution if it disallowed secession. More about it here.

I find it quite disappointing how much we've abandoned the Constitution...

Posted by: Justin at January 30, 2007 08:48 AM

Max,

It sounds to me like you have a crystal clear understanding of the Marquis de Queensbury definition of "civil war."

I still think the specifics of each situation are what suggest the sorts of approaches that may or may not be appropriate. If you think a title does the same thing, more power to you. Good luck getting evereyone to agree that your def'n of civil war, whatever it is, is the appropriate one. Sounds like fun.

Posted by: bk at January 30, 2007 09:00 AM

Justin,
I'm not persuaded. First, Black argues that "The point was raised in the convention: Should there be a 'perpetual union' clause in the Constitution? The delegates voted it down, and the states were left free to secede under the Constitution, which remains the U. S. government charter today." I have searched the notes of the convention, and find no such motion or debate about a "perpetual union." On June 26th, Marison suggested that the "long term allowed to the 2d. branch should not commence till such a period of life, as would render a perpetual disqualification to be re-elected little inconvenient either in a public or private view." On July 21, he warned that the choice of judicial selection mechanism risked "throw[ing] the appointments entirely into the hands of ye. Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States." On July 11, Madison said that "[h]e could not agree that any substantial objection lay [against] fixing numbers for the perpetual standard of Representation," and on August 8th, he objected to fixing "1 for every 40,000, inhabitants as a perpetual rule." On June 21st, James Wilson worried that "in spite of every precaution the general Govt. would be in perpetual danger of encroachments from the State Govts." On July 14, Wilson averred that "perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided." And on August 13th, Wilson suggested that "an insuperable objection [against] the proposed restriction of money bills to the [House of Representatives] that it would be a source of perpetual contentions where there was no mediator to decide them." On August 18th, several members of the convention discussed "perpetual revenue," and on June 11, "Mr. READ disliked the idea of guarantying territory. It abetted the idea of distinct States [which] would be a perpetual source of discord."

Moreover, while I'm willing to look at Madison's notes as general background, to rest excessive authority on them seems as mistaken to me as is reliance on legislative history in statutory matters (albeit to a lesser extent). Even assuming the unvarnished accuracy of Madison's notes, the public that ratified the Constitution were not privy to those notes, or to the debates. It is the original meaning of the Constitution that controls, not any particular intent on the part of individual speakers at the convention: what would this document have been understood to mean by the society that ratified it? See generally Bork, The Tempting of America (1990), 144 ("Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time"); Scalia, A Matter of Interpretation (1998), 38 ("it is curious that most of those who insist that the drafter's intent gives meaning to a statute reject the drafter's intent as a criterion for interpretation of the Constitution. I reject it for both ... What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended") (emphasis added); Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 68 (1994) (“[i]ntent is elusive for a natural person, fictive for a collective body”).

Black attributes to Alexander Hamilton the quote that "[t]o coerce the states is one of the maddest projects that was ever devised," but cites no primary source and provides no context. A google search for the phrase returns but a handful of pro-secession websites -- one of which suggests that it was uttered during the New York ratifying convention. I will accept that for sake of argument, but the same source then puts the quote into context:

Mr. Hamilton, in the Convention of ratification of New York -- speaking of the proposition to coerce the States to comply with the requisitions for revenue, under the Articles of Confederation -- expressed his objections to it in the following language, which is applicable, with equal force, to the coercion of States under the present Constitution: "It has been observed, to coerce the States is one of the maddest projects that was ever devised. A failure of compliance will never be confined to a single State. This being the case, can we suppose it wise to hazard a civil war? Suppose Massachusetts or any large State should refuse, and Congress should attempt to compel them; would they not have influence to procure assistance, especially from those States who are in the same situation as themselves? What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another: this State collecting auxiliaries and forming perhaps a majority against its federal head. Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of snpporting itself? Every such war must involve the innocent with the guilty. This single consideration should be sufficient to dispose every peaceable citizen against such a government."--2. Elliott's Debates, 232.

(Emphasis added). To say the least, putting the quote back into context undercuts the support it offer's Black's thesis.

Black's history descends from dubious to outright farcical when he asserts -- without any citation or support -- that:

After the [civil] war, Jefferson Davis ... was arrested and placed in prison prior to a trial. The trial was never held, because [Chief Justice Chase] ... informed President Andrew Johnson that if Davis were placed on trial for treason the United States would lose the case because nothing in the Constitution forbids secession. That is why no trial of Jefferson Davis was held, despite the fact that he wanted one.

In the first instance, the Federal Courts do not issue advisory opinions, a practise that was established in the earliest days of the Republic when Chief Justice Jay refused to answer certain questions the administration desired the Supreme Court's opinion on. See Muskrat v. United States, 219 U.S. 346 (1911), meaning that if Chase did so tell Johnson, it would have amounted to his personal opinion, without legal force, and in any event, Black cites no source in support of this contention. More reliable accounts of the history - i.e. those not trying to prove a point - record that Chase, sitting as Circuit Judge, "made known" in November 1868 his view that §3 of the 14th Amendment "nullified" the indictment against Davis: "[i]f this prohibition was found by the court to be a penalty, it would bar further prosecution on the basis of double jeopardy. At the start of the trial the motion was made and argued by counsel." And in any event, the case was rendered moot within a month when, "[i]n December[,] [President] Johnson issued a general amnesty."

In the absence of any textual provision supporting secession, you must turn to one of two sources: you must either go around the Constitution altogether, and identify some fuzzy natural law right to secede, of the kind identified in the quote from Stalin's thesis Marxism and the National Question above (don't worry if you didn't get the reference), which doesn't establish a Constitutional right to secede but rather declares the Constitution irrelevant to the question, or to go through the Constitution, you'd have to identify atextual sources that clearly establish that the original understanding in 1788 of the Constitution clearly denied that it was a union in perpetuo. If that is the challenge you wish to take up, I submit that you need more than Dave Black's transparently flawed and misleading history to support it. Everyone is entitled to their own opinion, but not to their own facts.

Posted by: Simon at January 30, 2007 10:21 AM

Great post Simon.....although I think the Declaration of Independence is a relevant document describing when people have had enough of their government.

Brian,
Let me give you an example. This is hardly the behavior in a civil war. If it was simply a matter of Sunnis v Shias, the Democrats do have a point. The best we could do in that case was to supply humanitarian aid and support a moderate government wishing to unite the parties. That is why the Democrats are so eager to call it a civil war. As you know, Hizb"Allah is trying to make Lebanon a civil war, but if you check out counterterrorism.org, you can see that numerous SHIA groups reject Hizb"Allah and even call them essentially non-Lebanese proxies for Iran and Syria. If this is really about proxy wars, extremists v moderates on both sectarians sides with NATIONALISTS trying to hold Iraq and Lebanon (and GAZA) together, then our strategy and tactics MUST be different. That was the point I was making. We know enough of the definition of civil war to conclude that what the people face in the Middle East is not civil war. Darfur and Somalia are not civil wars either. Proxy wars, and extremist insurgencies playing on poverty and dissatisfaction can be countered in ways a civil war cannot. See the American Civil War. Two sides advocating two mutually exclusive positions. Slavery was not something to be negotiated. And slavery had come to be a cancer to Liberal Democracy as would property status for women by 1900. Makes you wonder about British support of the South. Forgive my simplicity, but our Civil War was much different than Middle East conflict today.

The Wild West in America after the Civil War was not another civil war. It required federal police and soldiers to bring it under control. One of our failings in Viet Nam was to think it was a civil war. It was a communist insurgency spearheaded by a former Western ally who we stupidly rejected, who himself rejected a corrupt Vietnamese government. Thank you France. I conclude it is important to know the nature of the chaos we are in. Different evils require different tools to correct. Rather to move up a level in chess playing, Hillary yesterday played to the anti-war crowd. She resents Bush for suggesting Iraq will continue into the next administration? Politics (Rove) created a political mess after 9/11 and the Democrats seem little inclined to clean up the discourse now they are in power. There is little mention in their daily statements of ANY positive news (God forbid), nor any plans to assist positive outcomes in NK, Iran, Russia (see British claims of Russian nuclear terrorism), China (see their declaration that space will be weaponized), Darfur or even Somalia. As long as THEIR definitions of human behavior remain skewed and focused on 2008, how anyone can feel comfortable with them running foreign policy is questionable.

It isn't a matter of fish or fowl, it is more like fish or jock straps, despite any similarity in smell.

Posted by: Maxtrue at January 30, 2007 11:10 AM

"Security was tightened further after a raging battle on Sunday between security forces (Shia) and Shiite militants linked to a messianic cult leader near another holy city, Najaf, which left at least 263 militiamen dead." from the article linked above.

Posted by: Maxtrue at January 30, 2007 11:13 AM

Max, I can't agree that the declaration of independence supports southern secession.

Firstly, the Declaration of Independence explicitly declares the right of "one people to dissolve the political bands which have connected them with another," emphasis added. Although the colonies were, in both form and effect, British colonies, they had long evolved into a distinct and separate society - or, in the argot of the Declaration, the Americans of 1776 were a distinct people from the British of 1776. Accepting Stalin's definition of a nation (which, despite the horrifying idea of the source, continues to strike me as having the ring of truth), a "historically constituted, stable community of people, formed on the basis of a common language, territory, economic life, and psychological make-up manifested in a common culture," it seems to me that the America of 1776 formed a nation, a people, separate and distinct from their Britannic forebears, able to invoke the rights of a nation to secede. But the South of 1862 cannot be said to have met the criterion for a "people", separate and distinct to the "people" of the United States; they cannot be said to have been a "nation," separate and distinct from the United States. "The south" as a group had no more right within the Declaration of Independence to secede from the Union than would "liberals" or "Christians" as a group today.

Second, the Declaration of Independence invokes natural law: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government." But the south's desire to secede was an unvarnished desire to deny an entire class of men the "unalienable Rights" with which they were "endowed by their Creator." To invoke a natural law right to secede, for a purpose utterly at odds with natural law, strikes me as absurd.

Posted by: Simon at January 30, 2007 11:34 AM

And in any event, invoking the natural law rights of nations to secede doesn't establish any Constitutional right to secession. As I suggested in my earlier comment, such an invocation doesn't rest on the authority of the Constitution, but instead goes around the Constitution, arguing, in effect, that it is irrelevant to the question.

Posted by: Simon at January 30, 2007 11:53 AM

Of course, on that definition of a nation, Belgium would NOT be a nation due to a lack of a common language. Won't the Belgians be surprised, after all these years?

Posted by: wj at January 30, 2007 11:55 AM

WJ - no, nor Canada. And that's one reason (not the only one) I'm so hostile to the idea of creeping bilingualism in the United States.

Posted by: Simon at January 30, 2007 12:25 PM

That is, Belgium is a state that contains two nations, just as the Soviet Union (and the Russian empire before it) was a state containing many nations.

Posted by: Simon at January 30, 2007 12:28 PM

I agree that the natural law argument does not address the "Constitutionality" of succession. Nor does invoking God. But I believe our Founding Fathers found the inability to petition their English government to change the deplorable imposition of taxation without representation (which I believe was unConstitutional) some minor claim of a "constitutionally-consistent" succession from England.

The first claim about "nation" is a bit weaker. There were many who did not support succession against England. Later, the South did have a very different idea about slavery, economy and the role of Federal power in deciding local regulations and prohibitions than the North. And of course, the Indians represented a "nation" and their rights fell on deaf ears.

In any case, I think your point remains.

Posted by: Maxtrue at January 30, 2007 01:02 PM

> The first claim about "nation" is a bit weaker. There were many who
> did not support succession against England.

That's true, but they were likely a minority by 7/4/1776. Remember, the delegates to the Continental Congress that considered revolution were chosen by their elected legislatures. If the idea of war had been unpopular, it would've chosen mostly antiwar delegates.

In fact, no war resolution could've gotten through in its first meetings. The British had to be evil / be stupid enough to provoke widespread sentiment for revolution, first.

Posted by: Jon Kay at January 30, 2007 03:02 PM

There were many who did not support seccession against England

That's true, but I think it's a red herring. They may have been Americans who opposed secession, but for my point to stand, it suffices that they were Americans who opposed secession. Even though they wanted to retain their ties to Britain, even though they wanted to remain his Majesty's subjects in America, they were still not in fact British , but American subjects - any more than her Majesty's subjects in India were British rather than Indian subjects. Posted by: Simon at January 30, 2007 04:37 PM

I guess I took South Park's episode about the Declaration of Independence a bit too literally....LOL.

Since most people in 1778 did not have the right to vote, I wonder how one can claim a small majority wanted to remain English. I guess it was a battle between the rich and the richer. As Chavez prepares to steal US telecom assets without paying as Iran threatened to do with oil companies in the 50s, I wondered how much the Brits were compensated after the Revolution.

I wonder if either of you think the Constitution supports the idea of a draft. Were soldiers conscripted in any case to fight the British? On face value, I wonder if, when government refuses to follow the majority, it is an example of "taxation without representation". Natural Law again?

In any case, there is always amending the Constitution, but I doubt the majority of States would agree to succession. I think the legal and moral framework is important. The result of India’s Civil War produced Pakistan partly because the sides seemed irreconcilable and who would intervene? Greece had a “Civil War” after WW2, which was really a communist insurgency. The West fought for a united Greece and won.. In other cases, the West begged for Civil Wars by forming artificial boundaries in the Middle East. Now look at the mess. Cartographers on acid or something. The end of the Cold War saw a peaceful “liberation” of Russia's periphery concluded with new nations emerging from an artificial Super State. Yugoslavia descended into a Civil War, which was resolved by partitioning and UN military force. Presently no one defends the Kurdish dreams.

I would argue that the degree of moral and legal arguments make sense, the world is more or less an important force in the outcomes of Civil Wars. That is why I think seeing conflict for what it really is, is the first step in determining the options. The next step of course, is intelligent policies and international solidarity. In the modern age, Civil War can become genocide and the tension of a simmering Civil War, can give insurgents of the broader war, a foot hold in a future State, or power in a failed one.

Posted by: Maxtrue at January 30, 2007 08:32 PM

I wonder if either of you think the Constitution supports the idea of a draft. Were soldiers conscripted in any case to fight the British?

The draft began in the Civil War. I'm not in shape to talk about the legalities, except that the Supreme Court did back Lincoln. The South was very happy they seceded for the five minutes or so until their politicians realized they'd need a draft, too, to stay in the race.

On face value, I wonder if, when government refuses to follow the majority, it is an example of "taxation without representation". Natural Law again?

Not following the majority happens all the time - they call it"leadership...." Lincoln was acting against the majority when he issued the Emancipation Proclamation. He had until the next election to explain his actions to the people. Fortunately, he succeeded.

Posted by: Jon Kay at January 30, 2007 11:36 PM

But if Bush fails to make his case, can tax payers claim his refusal to be essentially "taxation without representation" and thus invoke a major reason why we broke with England? Already Sean Penn is invoking a similar argument for impeachment. Certainly, a lack of representation would be a violation of representative government. It does happen, but on a major issue, does rejecting the will of the people bring legal liabilities?

This is a different thrust than cutting funds. I guess an example would be a particular State with holding tax revenues because Congress refuses to represent their majority opinion.

Sorry if this sounds a bit of a stretch, but you have been reading the news...

Impeachment is not completely off the table, though I doubt California wants to split from the Union.

Posted by: Maxtrue at January 31, 2007 01:40 AM

Re conscription, Wikipedia's article on conscription in U.S. history suggests that there have been drafts in 1812, 1862, 1917, and then 1940-1973, which suggests that if there is any Constitutional problem with the draft, no one ever thought that it existed before, which would make me quite skeptical.

Re "taxation without representation" - who is being taxed without representation? I don't know what Sean Penn's argument is, but I'm willing to bet that he lives in California and has two U.S. Senators and a U.S. Representative just like the rest of us (excepting D.C. residents, which is another story entirely). What he means isn't that he isn't represented, that he doesn't have a voice in the legislative body that governs his country, which was the colonists' complaint, what he means is that his view has not prevailed. Democracy means that you get to vote, not that your opinion will carry the day. I am not "unrepresented" because Brad Ellsworth beat seven bales out of John Hostettler last fall, I just don't agree with the majority in my district.

Posted by: Simon at January 31, 2007 08:44 AM

Thanks. So if Congress fails to carry out the clear will of the majority, the fact they elected their leaders in the first place negates whatever these people do or don't do. The recourse is to defeat them in the next election. Taxation without representation would mean that some people HAVE NO ACTUAL REPRESENTITIVES, not that their picks refuse to listen to them. Just want to be clear on that.

I wonder if Nic will show up to debate the draft. On another thread please....LOL. It is interesting that Fukuyama's article does suggest that the progressive notion of Individual Rights now questions the "Constitutionality" of any draft. This certainly places us at a disadvantage in future wars should we need one. A similar thread can be seen regarding the presumptions concerning privacy. I do not think this is a result of a breakdown in our identification process, but rather a clear tactic to move our Liberal Democracy to a more socialist one.

Posted by: Maxtrue at January 31, 2007 10:55 AM

Taxation without representation would mean that some people HAVE NO ACTUAL REPRESENTITIVES, not that their picks refuse to listen to them.

That's what it meant when it was a rallying cry during the revolution, and if you're going to co-opt the phrase for modern political purposes, to evoke similar sentiments by suggesting comparable situations, it would be dishonest to apply it to a situation where the people do have representatives, and can vote them out of office in an extremely short period of time.

Don't blame the system because the Democrats lied their way back into the majority and people believed them.

Posted by: Simon at January 31, 2007 01:29 PM

Sistani

Posted by: Maxtrue at February 3, 2007 09:16 AM