These United States

I’ve had several conversations recently about the nature of the Union binding together the several States. Many of my friends argue for the South’s position during the Civil War (states’ rights), while others of them, though fewer, argue for the North’s (secession is unconstitutional). And I was reminded of it again today by this post over at Saint Superman, which brings up new attempts to assert states’ rights following the passage of Obamacare, and argues that they’re inherently damaging to the Union.

So, I thought I’d try to write something about my take on the issue. Keep in mind this is all “speculation”; I am tentatively convinced by the arguments below, but don’t hold to these views particularly strongly. They’re just my efforts to unravel some complex issues.

To begin: If I take a legalistic approach, just looking at the text of the Constitution, I can’t see any definitive reading. It’s ambiguous – and, I suspect, intentionally so – as to whether states have a right to secede or not. It doesn’t mention anything explicitly either way.

But I still think the South had a good legal argument, insofar as there can ever be an argument for secession. Everything the American Founders could argue, the Southerners could as well. Yes, they had representation, but the population growth in the North and the movement westward meant that Southern states were beginning to have less and less control over national politics. It had always been a matter of compromise between North and South, but the election of Lincoln meant that it was no longer even that. The North could have its way in national politics without even really taking into account the South’s interests; that’s basically the same thing as not having representation.

Also, the South and the North were greatly separated by distance; I think people today have a hard time understanding that in 1860, you couldn’t fly from Texas to Maine in four hours or however long it takes. With such limited communication technology, a truly centralized government, of the kind we have today, wasn’t even conceivable.

And the South did have radically different interests than and a radically different culture from that of the North. They were linked economically, but so were the South and England. But the South had an aristocratic, rural, traditional society, while that of the North was egalitarian, urban, and modern. In a lot of ways, I think, the Civil War was about the modernization of America – the forced modernization of the South. Modernization is not inherently bad, and is in some ways necessary, but modernization at the point of a bayonet (and with everything burned to the ground) does not seem like the way to go about it.

Then there’s the slavery question. It’s true that a large part of the South’s complaints had to do with efforts to curtail and abolish slavery. And I’m as much against slavery as anyone else. But I don’t think the North had the right to step in and end slavery in the South without any regard for what would happen to Southern society after slavery was ended. The aftermath of the War – i.e. the abysmal failure of Reconstruction – was not an aberration. It was a direct result of the North’s idealistic belief that it could destroy the culture of the South and replace it with something better.

And then we look at today, and the various states that are threatening nullification. What are we to make of those threats? Brian at Saint Superman wants to see them as attacks on the Union itself. I’d rather see them as checks on the central government’s power. Yes, they’re an intentional provocation; it’s like the states and the federal government are playing a game of chicken. The states are betting they can pressure the government into changing its mind.

Brian says that this  means “federal sovereignty is subject to that of the states, and thus has and can have no real power over them but that power which they agree to cede on a case by case basis; the moment this becomes even a prevailing theory, the next logical step is to contemplate secession.” He has a sort of point. If the states can do anything to contravene the national government, it means the union is not strong enough to be indissoluble.

But, I think, that argument is based in Hobbes and his Leviathan, not in the idea of a social contract that our nation was founded on. The government is right, no matter what; if you don’t like it, deal with it. But do we really want an indissoluble union? I don’t think so. An indissoluble union seems to me like a perfect recipe for tyranny. I think that, rather, the state-union relation needs the same kind of play as the person-state relation; there’s a sort of testing of the boundaries on both sides, and the union is always fragile, because if either side oversteps certain boundaries, the union can dissolve. But the fact that either side can dissolve the union, means that both sides have an incentive not to do anything that will push the other side too far, and so the union is actually less likely to dissolve.

Of course, there’s still the question of whether dissolving the Union is practical at all in the modern world. Advances in technology have knit us closer together than ever, and the world has become increasingly contractual and legalistic, meaning there’s less room for change. Everyone considers the USA an entity, and there’s no real mechanism in place for dealing with the death of that entity. So such a dissolution is probably completely impossible – or, at least, it would be completely disastrous, meaning that in playing the “secession” card, the states are going “all in.”

Is this something that they ought to be doing in response to health care reform, of all things? I’m doubtful about that. But I don’t think we can cry foul at their doing it, saying they’re trying to destroy the Union, or that what they do will necessarily lead to its destruction.

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