Because of the deep division in America between red states and blue states, there has been much talk of secession. Is the United States too big? Would people be happier in smaller communities? Frank Buckley, a distinguished professor at the Scalia Law School, breaks with most of his fellow legal academics by taking these questions seriously.
In a recent article in the American Mind, he suggests that secession today would be difficult but not impossible. “As I argued in American Secession (2020), a civil war would be unlikely, and we’d be more likely to see a pacific James Buchanan in the White House than an indominable Abraham Lincoln.”
Against those who argue that secession is unconstitutional, Buckley offers some strong arguments: “Finally, the legal barriers to secession are weaker than most think. Originalists on the Court would recognize that the framers had thought secession permissible, while its more liberal members would find it difficult to ignore the expressed wishes of voters in a state. Is an indissoluble union a more fundamental constitutional norm than democracy?
Canada and Great Britain posed that question, and answered no. While the Supreme Court held that secession was unconstitutional in Texas v. White, that was a decision of a unionist Court right after the Civil War. Moreover, the decision assumed that the 1781 Articles of Confederation, which spoke of a “perpetual” union, had survived when the Constitution was adopted. Had that been the case, however, the Constitution would not have been ratified until the last state signed on in 1790, and George Washington’s election two years earlier would have been a nullity.”
Buckley is someone who “thinks outside the box,” and we badly need this quality today.