Notes on Secession
Jason Kuznicki on Jan 16th 2008
RadGeek offers a secession scenario:
If A is governing B, and B is violating C’s rights, and B ends up seceding from A in order to perpetuate the violation of C’s rights, then there may be a libertarian case for A having a right to intervene, as a third party, to aid C against B. Not because B lacked the right to secede, but because A has a right to intervene even against independent rights-violators in order to rescue their victims. But if so, then the right to intervene that A enjoys is surely conditional on a number of factors (such as the availability of other means for rescuing C, whether the proposed intervention will or will not create a state of affairs that materially improves on the former situation for C, whether the proposed intervention will or will not involve sins of commission against innocent bystanders, etc.). And I can see no basis for saying that the injustice of the cause that motivates B’s secession provides any kind of basis for A to blast his way in, occupy the territory, and forcibly restore an open-ended, ongoing regime. If C’s human rights and A’s right to rescue jointly establish a right for A to intervene against B, then that right only goes as far as the actual task of rescuing C, and no further.
I’d quibble first with the opening sentence. It’s hard to understand this as a real situation unless A, B, and C are in a state together, one presumably that A is running. Thus A is governing both B and C. I don’t imagine that RadGeek will have a problem with this modification, and it shores up ever so slightly the case for A’s intervention on behalf of C, since C has contracted (in theory) with A for the protection of his rights. This would be true even if, at the time of secession, A had been doing pretty abysmally at the job. There is never a wrong time to make amends.
A more serious quibble comes in this sentence:
…the right to intervene that A enjoys is surely conditional on a number of factors (such as the availability of other means for rescuing C, whether the proposed intervention will or will not create a state of affairs that materially improves on the former situation for C, whether the proposed intervention will or will not involve sins of commission against innocent bystanders, etc.
All of this is true in the abstract but applies very little to the U.S. Civil War. Rescuing the slaves was not a Union war aim, although preventing the further spread of slavery to the West clearly was, as was protecting the property of those who did not wish to secede, and protecting federal installations in the now-Confederate territories. I would say that these were all legitimate ends, and the only question is whether war was a proportionate means to achieve them.
Improving the lot of C is certainly important in the abstract, but (as every libertarian knows, and as all Americans should know), Lincoln didn’t want to free the slaves until it became in his estimate strategically advantageous to do so. The other concerns were still sufficient, I think, to wage war on the Confederacy, since loyal southerners were being very badly served by the rebels. But I could see how some could disagree, and I’d entertain disagreement in the comments.
Still, the abstract case remains deeply interesting, and this becomes clear by modifying it in various ways.
The justice of the reason for secession is important, I think, because attempting to secede for an unjust cause is tantamount to attempting to commit a crime, or at the very least forming a conspiracy to commit one. There is no natural right to commit a crime, no right to attempt to commit a crime, and no right to conspire to commit a crime.
Another reason the justice of the cause is important is because secession implicates bystanders who may or may not what to secede, as discussed above. There is usually a fair amount of messiness, so even if the end result is an improvement on the status quo, you’d better be sure it’s a substantial one.
This might make more sense if we return to A, B, and C, who are members of a polity together. For the sake of argument, we’ll assume that it’s an entirely voluntary and rights-respecting regime, except as noted below. There would then appear to be at least three types of secession. There are also at least three interesting positions that one may occupy within each scenario: (A) an agent of the government from which the secession is happening, (B) a seceeding individual, and (C) a bystander who is being brought along, willingly or perhaps not.
Secession for a Just Cause B says to A: “I wish to secede, and to take C with me. The reason is that you have constantly forced us both to pay onerous taxes and never even bothered to ask us about them. Everything else is great, but we can’t stand the taxation without representation.” In this case, B is acting on C’s behalf, but both B and C presumably desire it. Also, the cause is clearly just. If anyone ever has a right to secession, it is B, and C is a very close second. (It might help C’s case if he joined in making the declaration, but asking someone to do it for you is probably enough.)
C, though, may go the other way. He might feel that taxation without representation is bad, but that it’s a tolerable abuse, and that the new government run by B is likely to be worse. B’s best course of action then is… what, exactly? Because C can raise these sorts of questions, and because he has at all times a natural right of political association, secession is a difficult problem, and it should not be undertaken for (as Jefferson put it) “light and transient causes.” It becomes from here on out a question of political priorities and expectations about the future. Very murky indeed.
Secession for an Unjust Cause B says to A: “I wish to secede, and to take C with me. The reason is that I have enslaved C and, and I wish make him pick cotton for the rest of his life for no wages at all.”
Now A is understandably upset. C, a person with equal natural rights to anyone else, is even more upset. C now faces a choice: Do I secede with B? Or do I stay with A? A choice, we trust, that will be easy for him to make.
Although the slaves of the Old South never were given this choice, they too had a natural right to voluntary association, and that right was violated. Further, it’s hard to believe that they would have preferred living under the Confederate Constitution, which explicitly established slavery as the law of the land. Even before the 13th Amendment, some very smart legal minds (like Lysander Spooner) had argued that slavery was already unconstitutional, and that its continued existence was merely an abuse.
Whether or not the slaves could have been brought around to Spooner’s argument, it’s very likely that they would rather have lived under the U.S. Constitution than the Confederate, and that they would have prefered Abraham Lincoln as president to Jefferson Davis. They too had a right to choose this, one that the rebels violated by taking the slaves along unwillingly. We’re back in the territory of RadGeek’s hypothetical, with all of the contingent moral questions he’s raised.
Note that if C were a willing slave, and if he assented to B’s secession, then the cause for secession here is not necessarily unjust. (Indeed, it’s highly doubtful that C is a slave at all, except perhaps in name.) This is an all but impossible scenario, one that can’t arise in reality. It either fails on semantic grounds or morphs immediately into the previous scenario of just secession, because A is violating the rights of B and C to associate with one another, and this may well be grounds for legitimate secession.
Secession for an Indifferent Cause B says to A: “The Flag of our country is ugly. I propose to secede and set up a government in all respects similar to the current, rights-respecting one, except with a flag design that’s been generously contributed by Armani. And I wish to take C with me.”
Now this is an interesting case! A fully rights-respecting government would presumably recognize even the rights of secession and revolution, yet under a fully rights-respecting government there would never be a reason to exercise these rights! Any reason for leaving would have to be perfectly meaningless. And yet secession would cause many disruptions in the affairs of ordinary people, and for this reason it should be met with great suspicion.
Consider C, a wise person who understands the current government to be as good as one could possibly hope for on earth. (It is, because this is a hypothetical scenario, and I have so constructed it.) Now C may even think that the flag really is ugly, and he may trust B, and he may believe that B would duplicate the good government to the best of his ability, albeit with a much more stylish flag. Yet is that enough incentive for C to leave? At the very least there are transaction costs. Worse, there is some risk that B’s enterprise will meet with an accident, and that C will end up worse off than before.
C has no good reason to go along with B, unless he believes that the payoff from the Armani-designed flag will exceed the transaction costs of leaving. (To complicate matters still further: Note that in a fully rights-respecting government, B and C could presumably just start using the new flag anyway, and A would not have the power to stop them.)
We might state the point even more broadly: In a perfectly voluntarist state, there’d be no reason ever to secede, except to impose something nonvoluntary on someone else. Don’t like the flag? Don’t salute it. No one’s making you, not here anyway. Your right to ignore the state is intact, so “secession” is perfectly an empty term. (Another twist: The right to secession isn’t natural, because secessions presume the state, and they presume a state that is not fully voluntary.)
Now… All of this is terribly contingent on a set of precise and shared definitions, of things like “state,” “rights,” “voluntary,” and so forth, and so I’m prepared to see it all collapse at just about any given point. I wrote it out because I think it comes close — but doesn’t quite arrive at — something important in the theoretical structure of rights in the presence of and without the state. I’d be very interested in what readers have to say.
Filed in The Bookshelf
As I said to Jason privately, I question the entire characterization of the southern states’ actions as “secession.” The cause of the war was the refusal of several states to accept the outcome of the 1860 presidential election. Everything else–slavery, economic issues, territories, etc.–speaks to motives, not cause.
The south didn’t secede so much as hold an illegal constitutional convention and elect their own president to carry out its mandate. In theory, the remaining northern states could have ratified the Confederate Constitution and joined the CSA. That’s not really secession, though. It’s forming a rival government within the same geographic area.
While this is thought provoking, I think it’s a bit too abstract. There’s more to secession than what happened in the US. This gets really interesting when you think about real examples in a colonial/post-colonial context. Abkhazia, South Ossetia and Trans-Dnestria are interesting examples in recent times. While I don’t think that Russia’s intentions were noble, I never really thought about them in these terms.
But it gets even more interesting when you think about the decolonisation in the 1950s-70s - things like the Indians in Uganda, or Biafra or Kabinda. Or, for that matter, Kashmir. Perhaps especially Kashmir, since the decision to join India was made by an unelected ruler. It’s also a question worth thinking about given the Biden plan to partition Iraq.
Thank you for this. There’s a lot to think about here.
Surly the number of C’s relative to B’s has a lot of weight in the matter. Imagine 10 C’s distributed among 990 B’s who wish to secede on the basis of the ugly flag. Should they be prevented? I would say no. Should the 10 C’s be compensated for the transaction costs they must bear? Probably, though at this point you get into messiness with C’s over-reporting the costs in order to game the rules. Now let’s say you have 499 C’s distributed among 501 B’s. At this point it seems that preventing secession is a more reasonable step for A to take, since a large number of those affected do not wish to secede, and their large numbers will likely make compensation too expensive for the B’s to countenance.
Likewise this calculus seems applicable in the case of an unjust secession. Say there are 999 B’s who want to secede and will take with them one oppressed C (perhaps the B’s want universal military service, but C doesn’t want to serve). Now, does it make sense to militarily stop secession, with all the attendant slaughter and rights violation on behalf of a single C? Or would A do better to allow the secession to go uncontested but adopt a policy of pressuring the new country to drop its oppression of C? Or even to let the matter slide entirely? My sense is that in such a situation war is not A’s most just option.
This is not to say that the Civil War is unjustified. I don’t know what the C to B ratio was, and the injustice being inflicted on the C’s (the black C’s, at any rate) was egregious in the extreme. But I am tempted to side with RadGeek that in this instance A’s primary duty is not to refuse to allow the B’s to organize their own government, but to eliminate or ameliorate the attendant suffering of the C’s. But, of course, if the latter is impossible without the former, combatting secession may well be the only approach.
Ignoring the moral arguments for a moment, we can certainly all agree along the lines of Akhil Reed Amar’s argument that secession was illegal and that Lincoln was constitutionally justified in waging war against an illegal rebellion - especially when the rebels starting shooting at Federal installations. Remember that the War of Northern Aggression was precipitated entirely by the rebels. They overreacted to the election of Abraham Lincoln - who represented not a threat to slavery but a threat to the westward (and possibly southward) expansion of slavery (of course in the long run this probably meant that the disproportionate (thank you 3/5 clause) power of slaveholding states would ultimately succomb to demographic tides) - and then unilaterally seceded from the union, set up a government with a democratic mandate only among the slaveholding plutocrats scattered across the south, and proceeded to raise armies and wage war against the federal government. If that’s not enough justification for Lincoln’s actions, I don’t know what would be.
From a liberatarian perspective which accords liberty the highest end of government, the CSA was an abomination and no libertarian arguments were made at the time for the right to secede. The libertarians were Republicans.
Good attempt here Jason, to organize a very messy concept, but unfortunately I agree with IanR in that you venture too much into the abstract, while still seemingly discussing the specific, and certainly not the model of specific that I, or RadGeek, would unabashedly support. I think the real problems surface in the algebra, as no classical liberal theory can be so neatly labeled, since it inherently should take into consideration all individuals A-Z and beyond, and not homogenized groups of individuals as this presupposes. A noble attempt nonetheless.
2nd, if I recall RadGeek’s original intent correctly, it wasn’t to justify the Confederate secession, but to justify comments in the RP newsletters that were attacked for “promoting, or defending, a right to secession.” I don’t understand how anyone who respects liberty could deny the right to formally and peaceably remove oneself from an association, for any reason whatsoever, especially one that they themselves did not positively assent to in the first place. Allowing here that there might be some limited compensation that is justified, and that this removal would certainly not morally justify all coinciding behavior, nor prohibit any individual from ignoring the illegitimate claims of a state to rectify any injustice anywhere. (This is where Jason’s twist comes in.)
The emphasis on the condition above should be on “individual” and that is where Lincoln erred, and that is why I can’t agree with Chuck’s comment above when he calls Lincoln’s Administration libertarian, or when he asserts that the War was “precipitated entirely by the rebels.” -It does take two to tango. Lincoln and the Republicans instituted coercive taxation and conscription first to violate CSA waterways in order to stock the continued Union military presence at the doorstep to the CSA’s most important seaport, and then to mount a terrorist offensive of indiscriminate death and destruction throughout the region (see: Sherman’s March.) By doing this Lincoln sewed the seeds of progressivism, and ushered in the era of an expanding federal government.
If one is looking for proponents of liberty in that era there are much better ones to be found, for pacifists and violent revolutionaries alike: Lysander Spooner, Harriet Tubman, John Brown (who Lincoln called a “misguided fanatic,”) Henry David Thoreau, Frederick Douglass, and Nat (aka Nat Turner,) just to name a few.
Lovers of liberty, regardless of their differences, should be able to agree on one overwhelming lesson from the U.S. Civil War, and that is that the state acts in no one’s best interest but its own. The conflict left more than 600,000 dead, and 400,000 wounded, it tore families apart, heightened geographical tensions, inflicted unimaginable damage to property, and did little to improve the conditions of anyone, and nothing to ameliorate racial conflict, all for what? To save some imaginary entity that we call a Union? Hardly seems worth it…
I can’t add anything to the technical details of this debate but I do have a question, if Abraham Lincoln was justified in using military force to stop people leaving his government didn’t George III have the same justification? I don’t seriously believe the two situations are the same but what are the relevant differences?
Matt –
There were people who wanted to leave in both cases, and also people who did not. The relevant distinction is that Thomas Jefferson wanted to leave for a just cause, and Jefferson Davis didn’t have one.
AMW, Greyson –
You both raise very important qualifications to the model. The point here was not to explain all secessions everywhere, but to show some ideal types and to point out where the harder cases lie.
Chuck –
Yes, the South instigated the war, and I agree with you (and Sandefur) about how libertarians should think about the Civil War. But be careful about this:
Ignoring the moral arguments for a moment, we can certainly all agree along the lines of Akhil Reed Amar’s argument that secession was illegal and that Lincoln was constitutionally justified in waging war against an illegal rebellion - especially when the rebels starting shooting at Federal installations.
Secession is almost always illegal. Even (especially?) despotisms will declare it so. Legality is only the first question of secession. The rest is to me far more interesting.
Secession is almost always illegal. Even (especially?) despotisms will declare it so. Legality is only the first question of secession. The rest is to me far more interesting.
I think looking through it again that was the point in the back of my mind, almost no nation is going to make it legal to leave their rule so justifying secession or oposition to it in legal terms doesn’t help much.
Perhaps we could make a distinction between the initial secession of the six Gulf States and South Carolina, and the “border” states. Whatever their intentions, these initial seceding states did believe what they were doing was legal and Constitutional, and attempted to negotiate with Lincoln the purchase of federal property in their states, and assume their share of the national debt. But for the sake of argument, let’s say they were both evil and legally wrong, and that war on them was unjustified.
But then there was the subsequent secession of Tennessee, Arkansas, North Carolina, and Virginia. Why did they secede? Because Lincoln by-passed Congress and the Constitution in calling for troops to suppress the secessionist states. The refusal of these border states to go along with this despotic act should have persuaded Lincoln that his course would be futile and wholly destructive. Yes, these were slave states, but Jefferson’s Virginia was also a slave state, too; it doesn’t mean they were wrong on the constitutional principle.
In any case, saying that the Civil War was unnecessary and shouldn’t have been fought is not to say that either side was justified. The North should have seceded from the South a long time before that, but the ports at Charleston and New Orleans were too lucrative. I’m with Thoreau and Spooner.
Jason,
Just so we’re clear, I certainly didn’t mean to suggest, in setting up my hypothetical, that I was under any delusions as to the motives of Lincoln or the other Federalis in the U.S. Civil War. I’m well aware that the liberation of the slaves was not in the least a war aim, at least at the beginning of the war. Part of the point of the abstractified hypothetical was to make an a fortiori argument: if anything could justify the reconquest and occupation of the South on libertarian grounds, it would be the liberation of Southern slaves. But the liberation of Southern slaves would not in fact justify the reconquest and occupation of the South, even if (contrary to fact) that had been the cause that the Feds went to war for. Thus nothing could justify the reconquest and occupation of the South on libertarian grounds. (There might be a legitimate case for something different — such as the use of armed raids to liberate slaves, when not followed by conquest and occupation — but what it might justify is different from what actually happened in the U.S. Civil War precisely to the extent that it doesn’t involve any attempt to forcibly override white Southerners’ decisions to secede.)
To the extent that the Feds engaged in a brutal war and occupation, killing, maiming, and ruining millions of people in the process, for reasons that had nothing to do with the liberation of Southern slaves, I think that that makes the Feds’ position that much more repulsive, and obviously indefensible.
As for the rest of your discussion, it’s interesting, and deserves a careful reply, but the reply will probably take more space than I have here. Perhaps soon, on my blog.
Red Geek,
Why is Lincoln singled out when millions of lives had been ruined under all the presidents until then, even the ones that libertarians honor, or do you think that only southern white lives are worthy of your compassion.
VRB: Why is Lincoln singled out when millions of lives had been ruined under all the presidents until then, even the ones that libertarians honor …
I can’t speak for libertarians as a group, but I am a libertarian and I can’t think of a single President of the United States that I “honor.” I happen to think that all of them were perfectly repulsive, and those who preceded Lincoln deserve special contempt, both for their ongoing use of Federal bayonets to enforce fugitive slave laws and protect Southern slavers from uprisings, and also for their repeated forays into ethnic cleansing and genocide against American Indians. Other libertarians, especially those who are minarchists rather than (like me) anarchists, might be somewhat less sweepingly harsh. On the other hand, they’re also likely to be somewhat less harsh towards Lincoln in particular.
However, the reason that Lincoln’s under discussion at the moment, rather than every other President in U.S. history, is that the post is about secession and the U.S. Civil War. Since Lincoln was President during the U.S.’s largest-scale secession crisis and during the U.S. Civil War, it makes sense to discuss Lincoln, but going on about how I loathe and despise most or all of the other Presidents in U.S. history would have been somewhat off the topic.