Judging Freedom - Secession Is Inevitable. War to Prevent It Is Optional.

Episode Date: March 7, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, March 7th, 2023. It's a few minutes after 11 o'clock in the morning here on the east coast of the United States. Our guest today is Ryan McMakin. Ryan is the senior editor at the Mises Institute. The Mises Institute is a very sophisticated academic think tank in Auburn, Alabama, dedicated to the study of Austrian economics and civil liberties. Full disclosure, I'm on the board of the Mises Institute, and Ryan and I have been friends and colleagues for a number of years. Ryan, you have been doing some fantastic work lately on a topic that one would not think would normally be a cocktail party conversation, but it has become so of late, and that is the topic of secession, the moral authority of smaller groups to leave larger ones, much as the 13 colonies

seceded from Great Britain in 1776. Unfortunately, it cost a lot of lives and shed a lot of blood, but resulted in secession. This has become a topic of conversation lately because Florida Republican Congresswoman Marjorie Taylor Greene, who refers to this as a national divorce, suggested it happened. Now, she suggested it in a way like, well, if California wants to leave the country, we're happy to let them go. You and I, of course, would suggest it if people believe that the federal government has exceeded the authority given to it under the Constitution and won't stay within the Constitution, why do we have to listen to it? So let's start with the theory of secession and why the regime thinks it has to involve violence. Yeah, that's one of my pet peeves is this idea that secession and civil war are essentially the same thing. But of course, that's not true. And we can think of many examples of secession that out there over the past several centuries that when they think of secession, all they can think of is the American Civil War. They don't even think of the American Revolution, which of course was a case of secession, where one part of the empire

broke off from the rest of the empire. And it didn't even affect Canada, right? You just had one piece that broke off. This was a textbook secession movement. So when we're talking about secession, we already know that it can be morally illicit in at least some cases. It happened in the 1770s. And that unfortunately led to a war. But why? It led to a war because the forces in London didn't want it to happen. So they chose war instead of peaceful separation. And so that's why there was a war, not because secession is a violent move. It didn't cause any sort of aggression against the people in London. The people in North America would have been fine to mind their own business and govern themselves, but they didn't want that to happen. Make for me the moral argument, which St. Thomas Aquinas called subsidiarity, that government is best, which is closest to the people, in which Ludwig von Mises argued, we all have the right to leave. I have the right to leave

this little town in which I live in northwest New Jersey. The town can leave the county, the county can leave the state, the state can leave the country. We know of the feelings of the framers about secession, because when Congress enacted the Alien and Sedition Acts, and Jefferson secretly wrote the Kentucky resolutions, and Madison secretly wrote the Virginia resolutions, Madison wrote the Constitution, Jefferson wrote the Declaration, they argued for nullification and secession. We also know that nothing would terrify the Chuck Schumers and the Joe Bidens and even the big government Republicans more than a loss of territory over which they have authority and therefore the loss of a tax base.

But make the rational moral argument about why we all as individuals or in groups or small political units have the moral right to leave the central government, the bigger political unit. Well, I think the main concept, the phrase that generally would be used by the old classical liberals, the people who think in terms of natural law and natural rights, that they would use the phrase self-determination in these cases, that people around the world have a right to govern themselves and not be subject to government from some far-off government where people have different values. And if you think about it, most people recognize this is an issue, that some people in one place have different values and ways of doing things than people in another place. And if someone says, well, we're all unified and all that, well, just ask them then if they think there should be a one world government and that all the world should be ruled from Beijing or from Brussels or from New Delhi or from Washington,

D.C. Should people in Nigeria be forced to be governed by people from Russia or whoever it is that conquers then sub-Saharan Africa, right? We recognize that people in different places have a right to basically rule over themselves to a certain extent. Now, how local should that be? That remains a matter of debate. But everyone fundamentally recognizes that it's not a one world national unified thing where there's pieces where one piece is different from another piece and you

need self-government. So that is just a fundamental human right that has actually been recognized even by the people in the UN. That self-determination is a right that everyone recognizes based on old liberal values. So how do you think this would work if Texas succeeded because of the behavior of the Congress and the executive branch under Biden, or California had seceded because they couldn't tolerate Trump and the Republicans in Congress? I mean, just as a practical matter, what would become of the federal courts? What would become of the Constitution? I would imagine they would be a nullity in those states. Well, say you got to the point then where Texas wanted to be truly its own sovereign state, right? So not even part of a defense union with the United States. Texas is actually an easy case because Texas is large. And with 25

million people, Texas is the same size as Australia in terms of population. It would be, if Texas were in Europe, it would be one of the larger countries in Europe with that many people. It would be similar to the size of the Netherlands, right? And certainly it would have resources to be able to fund its own military defense, just like a lot of these midsize European countries are. And so it wouldn't even really be much of an issue. They would easily be able to fund themselves. They have large cities, they have trade, they have coastline, they have everything that's necessary. So when you start looking at the federal government saying, well, Texas can't do its own thing, obviously it's wrong if they say Texas can't do it alone because Texas is too small,

obviously untrue. We can look at any number of countries that do that. Texas has the wealth. They have a per capita GDP similar to Australia, not a poor country, a country that's got surplus. It's got the money it needs to do all of these things. So it's really just a matter of Washington letting Texas do what it wants to do. Let me tell you something else about Texas, and this is true of many states in the union. The Texas Constitution actually protects more civil liberties and more natural rights than the American Constitution does. That's the same for New Jersey as well, which you might consider pretty much the opposite of Texas. New Jersey, uber progressive, the California of the East Coast, if you will.

And that is often the case of state constitutions. I tell that to our libertarian friends who fear, you know, what about the First Amendment if there's no federal courts? Well, the Texas version of the First Amendment actually is more explicit and protects more freedom of expression, not just speech and press, than the First Amendment to the U.S. Constitution does. What troubles me, of course, is that as soon as you and I make these arguments, what comes up? Well, if you look at the emails that replied to your original piece in Mises Wire, it's like, didn't these guys read the Civil War? Didn't Marjorie Teller Greene and her predecessors try this in 1860? And didn't the South secede just to preserve slavery? And all those horrible things which are historically untrue and obviously anachronisms today. with the federal government, which would relieve it of being under the thumb of Congress,

but allow it to pay for certain services like mutual defense. Right. There are many steps between the current interpretation of the U.S. Constitution, which really just says what federal judges say it says, right? And we could argue that the text as written isn't that bad, but clearly interpretation is pretty much in favor of unifying everything under the federal government. There's a lot of room between that and total sovereignty and separation where you're not even in any sort of defense union. But there are steps in the middle like, hey, we can all be in a customs union like the EU. Hey, we could be in some sort of defense union. But there are steps in the middle like, hey, we can all be in a customs union like the EU. Hey, we could be in some sort of defense union like NATO. And of course, history has shown that countries that have a common language, a common history, a common culture with

close trade ties and cultural ties, because of course, we all know lots of people and are friends with lots of people in other states. So this idea that, oh, now suddenly there's a border between my state and those other states, I guess I hate all of those people. I guess we have nothing in common anymore. Those people on the other side of the Delaware River, nonsense, right? And so there's no reason to assume there's suddenly going to be international conflict, just like the United States has been at peace with Canada and the United Kingdom since 1815. And so there's not going to be any reason to believe there's international conflict. And of course to believe this international conflict and of course you could be in some sort of defense union easily easily especially since these countries have

similar uh wealth and gdp per capita so it's not it wouldn't even be a situation of a wealthy country subsidizing a poor country and so geopolitical arguments that they make don't even count this whole thing well if we split up china will invade california the next day no because you can do you can have just simply a defense agreement that they make don't even count. This whole thing, well, if we split up, China will invade California the next day. No, because you can do, you can have just simply a defense agreement that would make sure that would never happen. Let me channel our friend and colleague, Tom Woods, and ask if, in your view, nullification is a step toward secession. The idea that the legislature of,

we'll go back to the Alien and Sedition Acts, the legislature of the state of Kentucky and the legislature of the state of Virginia basically said to the federal government, we are nullifying this statute. You will not prosecute anybody in our states for being critical or uttering defamatory language about the government. It's protected by the freedom of speech. We have nullified it in our states. Is that a step toward secession?

Yeah, it's absolutely a step in the right direction. Keep in mind that secession is just a type of decentralization, right? Because when you talk about secession, you say, oh, well, federalism is better. You should just divide up the powers. You should just decentralize. Well, secession is just over on the end of the spectrum of decentralization. You can be somewhere closer to the middle if you want. And if you come to me and you say, hey, Ryan, I want the United States now to be a union of truly independent republics that all just agree to have common trade and common defense, I'd say fine. I fine i'm not want to move in that direction fantastic and nullification would definitely be a step in that direction because it's a step toward local self-rule except on the issue of diplomacy and

foreign policy and that and we can find many historical examples the old swiss confederation the old dutch republic which were very wealthy, successful states, and they were very loosely knit confederations where you basically within your own republic, you self-ruled. Why does the central government, whether it's Washington, D.C., with respect to the country, whether it's Trenton with respect to New Jersey or Sacramento with respect to California, why do central governments loathe self-determination? Is it that fear of the loss of geography over which one has domain or the loss of a tax base to suppress and from which to extract wealth? I think it's both of those, right? As states, naturally, I mean, this is a 700-year trend, right, which really started to accelerate in the last four. Oh, we're losing you, Ryan. I can see you again.

Can you hear me now? Okay, yeah. So something happened for a few seconds. You were talking about this was a 700-year-old trend. Yes. But over the last 400 years or so, it really started to accelerate. So you had territorial governments, and they start to recognize, okay, I need for geopolitical reasons to really control all this territory, and I want to easily be able to collect taxes without having to go through some local noble or some local sort of self-governing unit. And so then you all have... Now we're losing you again, my friend.

Oh, All right. All right. Now you're back. All right. I'm not sure what's going on. Where are you? In Alabama? I'm in Denver. Oh, you're in Denver. Okay. All right. Well, hopefully that won't happen again. So what, you know, I think, and I think you agree with this, secession is inevitable in America, A, because no regime lasts forever. Even the Roman Empire at some point fell apart, particularly a regime that is so heavy with regulation and taxation and other burdens imposed upon people, created by a central elitist mentality, utterly out of touch with the needs of the ordinary people that it's regulating. In this case, in the American case, at some point, the federal government will collapse like an overripe apple. It just won't be able to pay its bills, and no one will lend it any money, and no one will want to do business with it.

That will result in a breakup of the United States into a dozen or maybe more smaller republics. You want a lot of regulation? Come to New Jersey. You want a lot of freedom? Go to New Hampshire or Texas. Well, and this is the natural progression of states in general, is once you start to have regions that can be self-sufficient that become wealthy enough to make a go of it alone they then start to assert

themselves in terms of self-determination you can see it of course the soviet union broke up basically bloodlessly right at in the 1990s and there was no civil war there as that country broke up into 15 new republics and so we can see other examples of this, like Norway deciding to break off from the kingdom of Sweden, Iceland from Denmark, Malta from the United Kingdom. It just happens. And it's, it's. I want to say goodbye to you, but you're going to have to hear me. Well, I can hear you all the time.

Okay. If people want to read more about secession, more of your work on secession, where can they go to find it? Well, they can go and they can get my book, Breaking Away, which looks like this. And you can buy that at Mises.org. You can buy it at Amazon. And it has a lot of the practical arguments of how this is done. And it's not just a bunch of theory. It has some theory in it, but it's really focused on what are different global examples? What is the moral case for secession in addition to how would it actually play out? And what are also some examples

in the United States of radical decentralization, of how things would work if everything wasn't done from Washington all the time? Ryan McMakin, you're making James Madison, wherever he is, very happy, and Thomas Jefferson as well, as well as all the wonderful people that watch Judging Freedom. Thank you very much for joining us. Thank you, Judge. More as we get it. Judge Napolitano for Judging Freedom.