Tuesday, October 10, 2006

Why a One-Way Constitution?

Timothy Sandefur has posted to SSRN his new paper analyzing the justifiability of the Confederate states' secession from the Union: How Libertarians Ought to Think About the U.S. Civil War, 28 Reason Papers 61 (2006). In brief, Tim argues that the those states erred because the U.S. Constitution forbids a state from unilaterally seceding and because, while self-defense against a tyrannical government might justify unconstitutional secession, the southern states had no just claim to that excuse. So far as those two claims go, I don't have much of a beef with Tim. But I've enjoyed arguing with him since we first met, and I'm not going to stop, now!

Even if Tim has established that the South seceded improperly, there still remains this vital question: Did the North responded appropriately? Contract law recognizes a firm distinction between breach and remedy. To say that someone has breached a contract is not, for instance, to say that you can kill them. For an analogous argument that the North over-reacted, see Jeffrey Rodgers Hummell, Emacipating Slaves, Enslaving Free Men: A History of the American Civil War (Open Court Pub. Co., 1996).

But set that aside. I here want to challenge an argument that Tim did make, rather than one he might have made. He says, on page 8 of his paper,
Because the sovereignty of a state is distinct from that of the union, a state can no more absolve its people of their allegiance to the federal government than the gas company can absolve a customer from paying her electric bill. The people, who adopted the Constitution, may decide to allow the people of a state to leave the union—through Congressional action . . . or by adopting a Constitutional Amendment . . . . But unilateral secession is unconstitutional.

I don't quite see how the latter point follows from the former. Suppose for the sake of argument that a state cannot unilaterally secede. Why does it follow that the people of a state cannot secede without the permission of the federal government? Granted that the gas company cannot absolve me from paying my electric bill, in other words, why do I need the permission of every other electric customer to go off the network?

Again: Suppose that 100% of the people of the state of California decide that they want to secede. Even supposing that the state of California could not secede on behalf of its citizens, why could they not dissolve that state and create a new political entity independent of the U.S. federal government? I don't quite see why the citizens of, say, Iowa should have any say in the matter.

Granted, that is not quite how the seceding states went about matters. And granted that, even in my scenario, the former citizens of California might owe damages to the U.S. federal government (which is not to say that the feds could rightfully invade "New California"). But none of that goes to show, Tim's claims to the contrary notwithstanding, that U.S. citizens cannot, independent of the states that claim sovereignty over them, unilaterally disclaim their allegiance to the federal government.

1 comment:

Stephan Kinsella said...

Professor Bell,

Your comments are reasonable. Lucky Sandefur's reply was so measured--I was waiting for him to call you a neoconfederate or apologize for slavery.

I too had a few civil email discussions with Sandefur in the past, and some substantive disagreements (e.g. here, here and here) but eventually he adopted the Catoite line of attacking those who disagree with his Jaffaite Lincoln idolatry as "neo-confederates" and the like (see here; some replies here and here). I guess Sandefur is too timid to call you a neoconfederate slavery-lover for your views, though he must be biting his tongue.