In The Broken Constitution, (Farrar, Straus and Giroux, 2021) Noah Feldman, a professor at Harvard Law School, argues that Abraham Lincoln criticized consent theories of government which allow the legitimacy Continue Reading

In The Broken Constitution, (Farrar, Straus and Giroux, 2021) Noah Feldman, a professor at Harvard Law School, argues that Abraham Lincoln criticized consent theories of government which allow the legitimacy of secession and defended in their stead majoritarian democracy. In this week’s column, I’d like to look at Lincoln’s argument against these theories.

Feldman says that the

particular vulnerability of self-government that worried Lincoln had to do with the minority’s claim of the authority to secede, hence breaking majoritarian government. In his inaugural address, Lincoln had explained … that “all our constitutional controversies” derive from the division of government “into majorities and minorities.” Ordinarily, in a democracy, the majority was expected to prevail over the minority. But what if the minority held out? “If the minority will not acquiesce,” Lincoln argued, “the majority must, or the government must cease. There is no other alternative; for continuing the government, is acquiescence on one side, or the other.” (p. 161)

Lincoln’s argument against secession, then, is this: if a minority refuses to accept the verdict of the majority, the majority does not back down, and the minority then abandons its allegiance to the government, this leads to the collapse of the previously existing government. If it is objected that the majority and minority groups can after secession form new governments of their own, Lincoln has an answer. “Without agreement between majority and minority, government could not subsist. Lincoln then states the problem with secession: ‘If a minority … will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them, whenever a majority refuses to be controlled by such minority.’ Lincoln was saying that secession had no logical stopping point” (p. 162).

Even if the minority doesn’t secede, Lincoln thinks that the threat to do so gives it too much power. “A permanent right to secede from constitutional government would render the majority constantly vulnerable to the minority’s threat to leave. The solution—the only logically possibly solution—was for the majority to be able to coerce the minority, effectively rejecting the minority’s withdrawal of its consent” (p.163).

For Lincoln, the alternatives are clear. “’Plainly, the idea of secession,’ Lincoln reasoned, ‘is the essence of anarchy.’ This was a leap, but Lincoln made it. ‘A majority, held in restraint by constitutional checks, and limitations … ,’ he maintained, ‘is the only true sovereign of a free people.’ The moment ‘the majority principle’ was rejected, what remained was either ‘anarchy, or despotism’” (p. 162).

Lincoln’s argument is vulnerable at a number of points. The view that Lincoln attacks is that governments are formed by consent and those who have consented can at any time leave the government. Lincoln says that once some group in fact leaves, then this will create a precedent for other groups to leave. He probably has in mind secessions within the group that has seceded, with this process continuing with further secessions from these secessions, but the precedent would also hold true for groups within the original union that didn’t secede. It seems right that this precedent would exist, but it does not follow from that fact that the groups would in fact secede until the point of anarchy was reached, as Lincoln suggests. (I take it that by “anarchy,” Lincoln has in mind secession to a level at which no effective government is possible.)

It would seem more likely that the various groups joined by consent would, when faced with group conflicts, weigh the costs and benefits of staying in the group, compared with leaving it, and on that basis decide what to do. Why would the various groups be unable to decide in a way that reflects their actual interests? Lincoln might object to this response that he wants the minority groups to remain and accept the majority’s verdict, even if it goes against their own interest. But why should the minority groups do that?

Three possible answers suggest themselves. First, that it is in the minority groups’ interest to do so, even if they do not think that it is; but what reason is there to think that this will in general be the case? Shouldn’t it be up to members of the groups to decide this? Second, the answer might be that even if it is in a minority group’s interest, considered in isolation, to secede, it might not be in the interest of the appropriately weighted sum of the minority group and the remaining part of the society that the group secede. But why should the minority group take this into account, rather than be guided exclusively by its own interests? A counter to this suggests our third answer. It might be claimed that by joining the larger association, the minority group has committed itself to taking the interests of the majority into account, even if not to the extent of its complete subordination to the majority. In response to this, isn’t the nature of its commitment to the larger group just what is at issue? The suggested third answer begs the question against the secessionist position.

In his opposition to secession, Lincoln had a specific problem most in mind. A union that split the continental United States might prove too weak to defend itself against foreign nations that had designs on American territory. But why would separate groups that did not want this to happen be unable to form a temporary defensive alliance to prevent it?

There is yet another point at which Lincoln’s argument is vulnerable, and it is one that many readers will have already thought of, perhaps wondering why I did not challenge it. What is wrong with anarchy, if by that is meant a society consisting only of those who freely consent to membership in it, while retaining the freedom to leave? Lincoln views this as an obvious absurdity, but those of us who do not share his statist proclivities will disagree.

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