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February 2009

Self-determination

 

By Jonathan Wallace jw@bway.net

 

Self-determination is defined as free choice of one’s own acts without external compulsion, and especially as the freedom of the people of a given territory to determine their own political status or independence from their current state. In other words, it is the right of the people of a certain nation to decide how they want to be governed without the influence of any other country. (Wikipedia)

 

          As soon as we Americans are old enough to read, we are served yearly portions of the Declaration of  Independence, which begins with some famous weasel-words about some things being “self-evident” which really aren’t. A few sentences later, the Declaration shouts from the rooftops that “to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” And, if our teachers have done their job properly,  those words “consent of the governed” toll like bells in the background, for the rest of our lives.

 

            Later in the same year, and over and over for the rest of childhood, we also study the American Civil War, a.k.a. the War Between the States. If you grew up in the North, as I did, the official story ran something like this:

 

            We had a pretty good thing going in the United States of America, which included one room schoolhouses, wide open western spaces, beaver trapping, river boats, Benjamin Franklin, Thanksgiving, and corn. But those pesky Southerners insisted on keeping Negro slaves. We didn ‘t want them to, so we asked them to stop, whereupon they decided they didn’t want to be in a country with us any more. So we raised a huge number of enthusiastic troops, sent them South, and kicked the Southerner’s  butts, making them stay in the United States.

 

            Remarkably, none of our teachers ever made any attempt to reconcile this with those lovely strong words, “consent of the governed”. I was in my thirties before I ever seriously asked myself what the rationale was for making the South stay part of the Union.

 

            There are substantial resources available on the web illuminating the arguments of Abraham Lincoln, Jefferson Davis and others regarding secession. While these arguments are interesting as historical insight, they are mainly lawyering based either on natural rights theories or on logic-chopping interpretations of the wording of the Declaration, the Articles of Confederation (which said the Union was “perpetual” but were themselves revoked when the Constitution was adopted), and the Constitution itself, which is silent on secession or even on the duration of the United States.

 

                        For example, the argument was made that, since the Southern states consented to join the Union, they should not be permitted to withdraw their consent. This approach flies in the face of contract law in general, which envisions the end of contracts, or their revocation under appropriate circumstances, such as being rendered impossible of performance (Suez Canal is closed) or breached by the other party (seller refuses to deliver so purchaser is not required to pay). An absolutist view that the South, having consented, cannot withdraw consent under any circumstances, effectively bars the question of which Northern behavior, if any, would release the South from its contract. Moreover, a literal application of “consent of the governed” would not bind the South to a term it clearly never agreed to upon entering the Union.

 

            Many of Lincoln’s other arguments were pragmatic rather than legalistic, focusing on the fate of the American nation if split in half. (An interesting analysis of Lincoln’s rhetoric  by an attorney is at http://www.apollo3.com/~jameso/secession.html)

Practical arguments can always be used to trump moral ones; democracy itself is messy, inefficient and inconclusive most of the time. The question that interests me here is not what will make the trains run on time, but what view of secession is most consistent with the language of the Declaration and the ideals of democracy.

 

We were taught every year in grade school that Lincoln was the greatest American president and had “saved the Union”, but there is a strain of modern libertarian thought which regards him as a monster. In a 1990 essay, “National Self-Determination”, posted at http://www.lewrockwell.com/rothbard/rothbard134.html, Murray Rothbard said:

 

Lincoln created the monstrous unitary nation-state from which individual and local liberties have never recovered: e.g., the triumph of an all-powerful federal judiciary, Supreme Court, and national army; the overriding of the ancient Anglo-Saxon and libertarian right of habeas corpus by jailing dissidents against the war without trial; the establishment of martial rule; the suppression of freedom of the press; and the largely permanent establishment of conscription, the income tax, the pietist "sin" taxes against liquor and tobacco, the corrupt and cartelizing "partnership of government and industry" constituting massive subsidies to transcontinental railroads, and the protective tariff; the establishment of fiat money inflation through the greenbacks and getting off the gold standard; and the nationalization of the banking system through the national Banking Acts of 1863 and 1864.

 

            Southern arguments for secession asserted that the North had effectively dissolved the Union by violating the spirit of the Constitution, when it refused to consent to the spread of slavery to certain Western states. Interestingly, Southerners had to avoid basing their argument on the natural rights found to be “self evident” in the Declaration, as a natural right of equality or to revolution might conceivably be deemed to be applicable to black slaves.  

 

            I don’t think there is any convincing way to reconcile the Civil War with the noble but disregarded language of the Declaration. The purchase of Louisiana and Alaska probably can’t be either (was there a referendum to assure the residents wanted to join the U.S.? A little reported story during the last election was Alaska governor Sarah Palin’s involvement with a local secessionist movement.)  The theft of Hawaii, or the compulsion practiced against Guam, the U.S. Virgin Islands and Puerto Rico, certainly disregarded the consent of the governed. The Declaration was probably intended only as salesmanship, effective advocacy in support of a particular group of people wishing to sever ties with another, and not really meant to be binding in other capacities. The United States has spent much of its adult life acting in violent disregard of the consent of the governed in other nations. In Chile in 1973, in a fairly recent gross example, we supported the overthrow of the democratically elected government of Chile, and the installation of a murderous regime which killed thousands of its own people in a matter of weeks. (Kissinger’s smirking joke at the time, during a secret session trying to identify the rationale for our support of the coup: “Chile is a dagger pointed at the heart of Antarctica!”)

 

However, embodying as it does the freedom-oriented philosophies of Rousseau and Locke, one feels a sort of cold, bracing wind blowing from the Declaration that is very hard to still, despite the fact it was written by slave-holders, and the centuries of hypocrisy and violence that have followed it.

 

             Let’s consider a universal rule consistent with the Declaration that says that whoever wishes to secede, shall be permitted to.  That’s right; anyone who wants to depart from any sort of human grouping or organization, up to and including a nation-state, shall be permitted to do so. In today’s world, this would include East Timor, Palestine, Ossetia, Chechnya, Kosovo, and Staten Island.

 

            Such a rule would perfectly carry out the expressed intention of the framers of the Declaration; what would be the consequences?

 

 I do not deal with the issue of whether an individual should be permitted to disaffiliate himself from the nation-state, while continuing to reside within its borders. I discuss only the question of whether a majority of the people residing in a geographically defined area such as an American state or city, or a former nation or discrete ethnic region forming part of a larger structure such as China or the Soviet Union,  should be able to decide to withdraw from a larger political structure of which it historically formed a part.

 

            As I have written elsewhere, I do not believe in natural rights. The Framers’ declaration that certain things are “self evident” seems either deliberately deceptive or intellectually lazy. I see no evidence that any particular human rights are somehow embedded in the fabric of the universe; I think all result from human custom and law.  What follows is merely a discussion of the arguable desirability of particular human rulebooks, themselves adopted by consent.

 

             What would have been the impact on the U.S. and the world if the Southern states had been permitted to secede?    Slavery would very likely have continued long beyond 1865 in the Confederate nation. I would like to believe it would have faded away after a few more years, overcome by Northern competition based on automation,  and perhaps changing mores in the South.  In any event, the North’s wish to end slavery is problematic as an excuse for forcing Southerners to remain part of the nation. The North could have taken a “Gaza” approach, granting the South independence and then invading it in a limited action intended only to end the offensive behavior. Under what circumstances are we entitled to invade a neighboring country to force an end to its behavior?   Must a neighbor’s  actions physically threaten you, like the rockets from Gaza, to justify an invasion, or can a people’s internal behavior  (polygamy? cannibalism? Communism?)  be so outrageous to justify a literal “police” action? This brings us back to the room in which Kissinger sat, trying to decide what to tell the public about the American interest in promoting murder, torture and rape in Chile.

 

            Split in two after 1861, it seems unlikely that the U.S. would have become the super-power which intervened to end both twentieth century world wars. As you try to follow the branching possibilities of an alternative timeline, it seems possible both that third world  nations that we later beat up might have avoided suffering (Hawaii, Philippines, Cuba, Vietnam) but that some legitimate bad guys might have triumphed (Hitler). A modern-day argument against legality of Southern succession relies in large part on the dangers to everyone’s security of a North America divided against itself.  http://www.claremont.org/publications/pubid.171/pub_detail.asp

 

As interesting as this analysis is, it is morally irrelevant. If we really care about the “consent of the governed”, then we must also accept all the consequences of the choices made by the governed, even the bad ones. As Justice Holmes, proud creator of the “marketplace of ideas” metaphor of free speech, said in another famous Supreme Court dissent:

 

If in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

 

Few people since Holmes have publicly affirmed that we must follow the consent  of the governed wherever it leads.  Even liberal law professors like Cass Sunstein have been known to attempt distinctions between state toleration of speech which advances the football of freedom down the field and speech which does not. One thing we try not to remember about democracy is that the governed sometimes consent via elections to end it, as they did in 1930’s Germany, 1990’s Algeria, contemporary Russia and Gaza.

 

If consent is truly the cornerstone of human organization, then we must stand with Holmes and agree that there are no limits on self-determination. We can’t then maintain that you can choose your own way so long as it doesn’t offend me.

 

            The only argument against secession I found which makes any sense to me is based on the cornerstone of libertarian ethics that "The right to swing my fist ends where the other man's nose begins." (Which also, rather delightfully, turns out to be an Oliver Wendell Holmes quote.) Here again, we revert to the situation in Gaza. If, by granting the desire of a people to self-determination, we are creating an enemy territory next door, sworn to our complete destruction, are we still required to act? 

 

            We are never morally required, I think, to consent to physical harm, let alone our destruction. In this case, the group demanding self-determination is expecting us to follow a moral code they do not share. They demand respect of their right to self-determination but do not envision that we have any rights whatever in return.

 

            Therefore, the proposed rule that “any group that wishes to secede, may do so,” has a condition, “provided it is prepared afterwards to recognize the rights of the entity from which it seceded.” Otherwise, the contract is unilateral and provides no benefit whatever to the other party, but only risk. It is an old tenet of contract law, based on human custom and common sense,  that both parties to a contract must offer the other some benefit, and give something up themselves; otherwise the agreement fails for lack of “consideration”. Exactly what consideration is Hamas willing to provide to Israel in return for its own demands for recognition?

 

              Should we require a people seeking to secede to endorse not only the rights of the people from whom they are separating, but to agree to a basic code of rights for those within their new borders? The desire that all new states be functional democracies, with free speech, rights of due process, protection of minorities and women, etc. accurately reflects the United Nations ideal and the process President Bush derided as “nation-building”,  then pursued in Iraq. But where do you draw the line? Should all new states be required to outlaw abortion, or permit the private trading of stocks, or teach evolution or creationism,  or ban Islamic garments which cover women’s faces?  Past a certain point, we are eliding the very reasons for secession, to pursue one’s own separate culture and choices different from those of the entity one is leaving. 

 

            A world in which Staten Island is free to secede from New York City, or New York State, or even the United States brings on a vision wonderfully sympathetic to libertarians, and frightening to others, of a world which has fragmented into a multitude of tiny self-governing units choosing to provide their own physical security, judiciary and rules of commerce. The libertarian heaven is the opposite of globalism and world government, but is not represented on earth by any state except perhaps Somalia, a wasteland of brutality and suffering which has had no functional government for decades.

 

            Some members of the chattering class believe that the United States is more divided than it has ever been, with approximately half the country “blue” and half “red” and less bipartisanship than ever. In this last election, where large chunks of electoral votes shifted from red to blue, the popular vote was still relatively close between those who would be satisfied to put Sarah Palin close to the presidency (or in it) and those horrified at the prospect. More than a few people have observed that with ease of secession, the U.S. might easily split into two countries again, one committed to a secular, diverse, big government approach, the other religious, anti-government and believing that “a big tent is for clowns”.

 

            It is difficult to imagine how thousands of tiny nations, world wide, could ever cooperate to end global warming when the present day assortment of fewer than two hundred nations can’t do it.  History provides substantial evidence for the proposition that problems are most effectively solved only at the level of the largest imaginable political unit. The United States Constitution, and the body of law and custom which grew up under it, provide that certain matters are pre-emptively the province of the federal government (national defense, interstate commerce, emission standards). More fundamentally, the stabilizing effect of a larger political entity instead of a lot of small ones is evident: New Jersey and New York have been at peace for centuries, and a war between them is unimaginable, because they form part of one nation. A war between India and Pakistan, Russia and Georgia, China and Taiwan, Iran and Israel, would also become unimaginable only if they, and all other nations, formed part of one unit, a world state.

 

            I have just perfectly contradicted myself: there has never been a second war between New York and Virginia since New York won the first one. If Virginia had been permitted to secede, there might have been several more. This pragmatic, amoral argument, leads us away from the consent of the governed and towards benign (or not so benign)  dictatorship: an alpha nation to impose discipline on the screaming, scrambling multitudes and make them behave.

 

            This is not the place for an extensive discussion of world government, the biggest boogeyman of the very libertarians I have drawn on so extensively for the pro-secession argument. I believe firmly that global problems, such as war, famine and global warming, will never be solved by the concerted action of a multitude of nation states, unless they join together in a strong world government. And I say this recognizing the real risk that Americans, joining such a world state, might trade away their own liberty and property, the main reason why libertarians find the idea of world government so toxic.

 

            However, I can perform the perfect card trick of reconciliation by dreaming of a world government genuinely based on the consent of the governed.

 

            While inviting you to share a piece of pie with me in the cerulean.