Is U.S. State Secession a Right?

By: David_Gordon

Grant defeated Lee, the Confederacy crumbled, and the idea of secession disappeared forever, or at least that's what the conventional wisdom says. Secession is no historical irrelevance. Quite the contrary, the topic is integral to classical liberalism. Indeed, the right of secession follows at once from the basic rights defended by classical liberalism. As even Macaulay's schoolboy knows, classical liberalism begins with the principle of self-ownership: each person is the rightful owner of his or her own body. Together with this right, according to classical liberals from Locke to Rothbard, goes the right to appropriate unowned property.

In this view, government occupies a strictly ancillary role. It exists to protect the rights that individuals possess independently — it is not the source of these rights. As the Declaration of Independence puts it, "to secure these rights [life, liberty, and the pursuit of happiness], governments are instituted among men, deriving their just powers from consent of the governed."

But what has all this to do with secession? The connection, I suggest, is obvious: if government does not protect the rights of individuals, then individuals may end their allegiance to it. And one form this renunciation may take is secession — a group may renounce its allegiance to its government and form a new government. (It is not, of course, the only form. A group can overthrow its government altogether, rather than merely abjure its authority over them.)

The Declaration of Independence adopts just this position: whenever a government "becomes destructive of these ends, it is the right of the people to alter or abolish it." But the American colonists did not attempt to abolish the British government; rather, they "altered" it by withdrawal of the colonies from its authority. In brief, they seceded from Britain. As such, the right of secession lies at the heart of our country's legitimacy. Deny it, and you must reject the American founding.

One might here interpose an objection. Regardless of one's opinion of Jefferson and the Continental Congress, is it not consistent to accept natural rights, as conceived of by classical liberals, but refuse to recognize a right of secession? On this position, individuals have natural rights, but once they choose a government they are stuck with it. In response to this objection, we must distinguish two cases.

First, the position might hold that even if the government violates the rights it was established to secure, its subjects may not depart from it. But this is a strange contention: government exists for certain purposes, but it may continue unabated even if it acts against these very aims.

To this, it might be replied that to protect individual rights, resort may be had to means other than secession. One must concede to this view that alternatives to secession do indeed diminish the force of the imperative in its favor. After all, if a state may interpose its authority to block an enactment of the federal government within its borders, why must it also be accorded the right to leave altogether?

This view, I think, is logically consistent, but it has little to recommend it. Why should people give up this very potent means of keeping their government in check? To do so leaves their natural rights, if recognized in theory, nugatory in practice. At the very least we may say this: those who deny the right of secession have the burden of advancing a rationale for their view. Why should supporters of natural rights reject the right of secession?

Opponents of secession may, however, take a less extreme position. They may concede that secession is to be allowed should the government violate individual rights, but not otherwise. A group may not renounce duly-constituted authority just because it would rather be governed by others. Does not the Declaration itself say that governments should not be changed for "Light and transient causes"?

This position no doubt is stronger than the utter repudiation of secession, but we must once more inquire: What is its justification? Prima facie, it appears that to hold that a group may remove itself from a government's authority whenever it pleases is more in line with classical liberalism's purely functional view of government. To deny this insinuates that the state is something other than a tool to secure rights. Just as an individual need not retain the services of a business, but may change to another, why may not a group switch protective agencies?

Further, the Declaration of Independence need not be read to endorse only a limited right of secession. The passage that refers to light and transient causes forms part of a discussion of when change of government is prudent, but the issue that concerns us here is not prudence, but rights. Many exercises of one's rights are imprudent — I may have the "right" to walk into oncoming traffic, if the signal is in my favor — but I have these rights regardless. Thus, a group may secede imprudently, but act within its rights. Once more: If not, why not?

The argument may proceed one more step. Suppose a group wishing to secede is guilty of violating individual rights. Does it still have the right to secede? I do not see why not. Of course, it should not violate individual rights, but why should the fact that the group does so compel it to submit to a government it no longer wishes to obey?

Allen Buchanan, whose Secession is the most influential discussion of our topic in contemporary American philosophy, rejects the legitimacy of Southern secession in 1861 on the grounds just suggested.[1] Since slavery violated rights, no slaveholding state had the right to leave the Union. But why does this follow? (Incidentally, Buchanan holds that Southern secession, absent slavery, would have been justifiable.) Clearly, Buchanan's discussion of the Southern case would have gained from close attention to the contemporary arguments of the Southern secessionists.

We may distinguish an even more difficult case. Suppose that a group which violates individual rights secedes. May the government formerly in authority interfere only to the extent necessary to secure the rights of those put at risk by the secession?

Even here, we need to sound a note of caution. The attempt to resist secession may itself lead to rights violations, and the benefits of intervention need to be weighed carefully against its costs. Even if one agrees with Locke that there is a general right to enforce the law of nature, this generates no duty to do so.

Robert Barro, a distinguished economist associated with the "rational expectations" movement, has addressed this issue with insight. Of course, during the Civil War, Lincoln's government did not act only to secure the rights of the enslaved. But suppose that it had. Would it have been justified in using force to resist secession?

Not, Barro suggests, given the cost of doing so:

The U.S. Civil War, by far the most costly conflict ever for the United States … caused over 600,000 military fatalities and an unknown number of civilian deaths, and it severely damaged the southern economy. Per capita income went from about 80 percent of the northern level before the war … to about 40 percent after the war.… It took more than a century after the war's end in 1865 for southern per capita income to re-attain 80 percent of the northern level.[2]

But, it may be replied, this quotation from Barro does not address the point at issue. No one denies the costs of the Civil War, but our question concerns justification: Does one have the right to interfere with a secessionist group that violates rights?

Yet surely the point raised by Barro is relevant. The costs of an action cannot be dismissed as irrelevant to morality. This is all the more true if one takes account of another issue that Barro raises. The claim, once more, is that the Civil War illustrates (or rather, would illustrate, had it been conducted differently) the thesis that secession may be blocked to protect individual rights.

Barro here makes a typical economist's point. The goal of defending individual rights could likely have been secured through less costly means.

Everyone would have been better off if the elimination of slavery had been accomplished by buying off the slave owners — as the British did with the West Indian slaves during the 1830s — instead of fighting the war.[3]

And what if this proposal is dismissed as unrealistic? What would have happened to slavery had the Southern states been allowed peacefully to secede? Barro suggests that slavery would soon have come to an end anyway. Here a more detailed discussion by historian Jeffrey Hummel lends support to Barro's view:

No abolition was completely peaceful, but the United States and Haiti are just two among twenty-odd slave societies where violence predominated. The fact that emancipation overwhelmed such entrenched plantation economies as Cuba and Brazil suggests that slavery was politically moribund anyway.… Historical speculations about an independent Confederacy halting or reversing this overwhelming momentum are hard to credit.[4]

But have we not addressed our question on too narrow a front? However ill-advised Northern policy was during the Civil War, this does not suffice to show that any resistance to secession that aims to defend individual rights is without justification. Here, for once, I grant the objection, but those who wish to restrict secession in cases of this kind need to show how their preferred interventions may avoid the costs that our example illustrates.

At one point, I fear, this analysis of secession lies open to misunderstanding. Secession arises from individual rights: I have not attempted to defend it as a group right unreducible to individual rights. Thus, it by no means follows that the majority of those living in a territory can compel these residents to secede who do not wish to do so. The question is not one of majorities or minorities but of individuals. As such, the argument offered here in no way depends on "democratic" assumptions.

The issue has been addressed with unsurpassed clarity by one of the foremost of all classical liberals, Ludwig von Mises.

The right of self-determination … thus means: whenever the inhabitants of a particular territory, whether it be a single village, a whole district, or a series of adjacent districts, make it known, by a freely conducted plebiscite, they no longer wish to remain united to the state to which they belong at the time … their wishes are to be respected and complied with.[5]

Mises emphasizes that this right

extends to the inhabitants of every territory large enough to form an independent administrative unit. If it were in any way possible to grant this right of self-determination to every individual person, it would have to be done.[6]

Once one has grasped Mises's point, the fallacy in an often-heard argument is apparent. Some have held that the Southern states acted "undemocratically" in refusing to accept the results of the election of 1860. Lincoln, after all, received a plurality of the country's popular vote.

To a Misesian, the answer is obvious: so what? A majority (much less a plurality) has no right to coerce dissenters. Further, the argument fails on its own terms. It was not undemocratic to secede. The Southern states did not deny that Lincoln was in fact the rightfully elected president. Rather, they wanted out just because he was. Democracy would oblige them only to acknowledge Lincoln's authority had they chosen to remain in the Union.

But a problem now arises. I have endeavored to defend secession from an individual-rights standpoint. Notoriously, Mises did not acknowledge natural rights. I fear that, like Jeremy Bentham, he regarded declarations of rights as "nonsense on stilts." Why, then, did Mises accept self-determination?

Mises's reasoning is characteristically incisive. If people are compelled to remain under a government they do not choose, then strife is the likely outcome. Recognition of the right to secede "is the only feasible and effective way of preventing revolutions and civil and international wars."[7] Mises's argument does not rest on natural rights, but it is of course consistent with the approach I have sketched out. Regardless of one's moral theory, it is surely a strong point in favor of a view that it has beneficial consequences.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store. Send him mail. See his article archives. Comment on the blog.

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