How to avoid America’s coming secession crisis

The craziness of our politics makes one wonder what’s round the bend. After the “resistance,” the pussy hats, the nonstop crises and the permanent impeachment, what might be the next shoe to drop? The answer: a breakup of the country, as I argue in my new book, “American Secession.”

Americans have never been more divided, and we’re ripe for secession. The bitterness, the gridlock, the growing tolerance of violence invite us to think that we’d be happier were we two different countries. In all the ways that matter, save for the naked force of law, we are already two nations.

And if that’s where we are today, where might we be in an easily imaginable future, where impeachment fizzles and Trump wins reelection and gets a couple more appointments to the Supreme Court? If secession were to happen, it would be the left-wing states that want out, places like California and Oregon. If they think the rest of the country is populated by deplorables, why would they want to be in the same country as the rest of us?

There’s a second reason why secession beckons. We’re overly big, one of the biggest countries in the world. Smaller countries are happier and less corrupt. They’re less inclined to throw their weight around militarily, and they’re freer. If there are advantages to bigness, the costs exceed the benefits. Bigness is badness.

Across the world, just about every country is staring down a secession movement. Many have already split apart. And are we to think we’re immune from this? If you think secession is, per se, bad, what do you think of Amerexit, when we seceded from the British Empire in 1776?

If the possibility of secession hasn’t occurred to us, it’s because of the awful precedent of the Civil War and the 750,000 Americans who died in it. Would that happen with Secession 2.0? Not hardly. Modern secessions tend to be peaceful and accomplished through negotiation and some movement of people. That’s the story of the Quebec secession movement: Nobody picked up a gun, and though the province didn’t actually secede, French became the province’s official language and a lot of English-speakers moved to Toronto.

Back in 1861, one section of our country wanted out. Maybe that doesn’t sound like today’s America; secession can’t happen unless there’s a decided majority for it in one state.

But it wasn’t so simple to get to that point in 1861 either. The Virginia Convention took three votes for secession, and the first two failed. The border states were completely divided.

As for today, look at the 2016 election results. It wasn’t just that there were sectional differences between red and blue America. The reds were deep reds, and the blues were deep blues.

Then there’s the question of legality. Didn’t the Supreme Court rule that secession was impossible, holding that we were a perpetual union? Yet that was the victor’s constitution, decided after the Civil War was good and over. Its ruling might look very different if a split-up were a real possibility and the question was whether to empower the president to send in the troops.

At that point, the court would have to decide between an abstract, indissolvable union and the democratic choice of the voters in a state. Originalists on the court might recall that the Framers at their 1787 Convention thought secession was very possible. Almost every delegate conceded that if one region or state wanted to leave the union, it was perfectly possible to do so.

Finally, there’s the president. I don’t think we’d see one who’d want to send in the Army to invade a state. Were he of the other party, he might even look at the electoral map and say, “Erring sister, depart in peace.”

Not that secession is what I’d want. I recognize all the differences that divide us, but a better answer would be a greater tolerance for those differences, in the form of renewed federalism. Or federalism on steroids, which I call home rule.

A state’s decision to exit would necessarily lead to constitutional conventions, where the details would have to be worked out and home rule would look very attractive. So many of our problems stem from the effort to craft a one-size-fits-all government for the entire country. Fix that, and watch things cool down.

Frank Buckley is a Foundation Professor at George Mason University’s Scalia School of Law.

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