Secession is unconstitutional—that part is settled. You will not find a single serious constitutional scholar who believes that secession, under any condition, is legal. Both the Texas and California separatists have their arguments about why separation is constitutional, drawn from esoteric readings of Texas v. White, an 1869 decision about the legality of state bonds, but generally the consensus is bipartisan on the point. “I cannot imagine that such a question could ever reach the Supreme Court,” Antonin Scalia wrote in 2006. “To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” The separatists respond with the obvious fact Scalia admits: technically, the constitutionality of secession has never been tested in the Supreme Court.
It is true that the court system has never had to deal with the constitutionality of secession, but that’s mainly because the first section of the Fourteenth Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” You’re an American first. Then you’re a citizen of a state. The state cannot make laws that deny citizens their rights as Americans. If Texas were to secede, they could not deny any Texan their American citizenship. Their laws would be subject to American laws. Therefore, Texas cannot constitutionally secede.
The text of the law doesn’t really matter, though. Some questions are bigger than law. David A. Strauss, a leading scholar of the Constitution, wrote in 1998: “Before the Civil War, there was a lively and inconclusive debate over whether the Constitution permitted states to secede. There is no longer any such debate; the issue was settled by the Civil War. No one today would seriously advance the position that the Constitution permits secession, at least the kind that the Confederacy attempted. Where is the text that settled this question? The answer, of course, is that this question, like other important constitutional questions, is decided by something other than the text.” That’s what Scalia was saying, too. The text of the law was determined by historical events, not the other way around. There once was one hell of an argument about whether secession was legal. It happened in the 1860s. About 600,000 Americans died in that argument.
Only a few countries possess legal machinery for secession anyway. Canada has made arrangements for what the acceptable conditions would be for Quebec to separate. Britain has done the same in the case of Scotland. But in most countries in the world, secession is illegal, just as it is in the United States. That’s not to say it doesn’t happen. The laws adapt to the reality of history.
Meanwhile, secessionism grows. “It’s not grandpa that places the Lone Star over the Stars and Stripes, but his grandchildren,” Miller reports. In Texas, the movement is growing fastest among Democrats and African Americans.
The negotiations would be like a divorce. The lawyers would pick over the bones. In offices on neutral territory, the heat of passionate loathing would worm its way into the coldness of bureaucratic reasoning.
We know a great deal about what such a divorce between regions would look like, because they’re happening all the time. “If you want to become a recognized independent state, that means you become a recognized member of the United Nations,” Griffiths says. “There’s a club of states. To get into the club, you would put in an application. If an application comes to them, they put it in a little group from the office of legal affairs.” If the working group thinks the application is too trivial, they reject it. If they think it’s serious enough, which they do by asking other states, then it goes to the Security Council. “The Security Council decides on whether or not to support the application. It has to win by a three-fifths vote without any vetoes. That’s key. If that works, it goes to the General Council, which generally rubber-stamps the Security Council’s decision.” So what that means is that the Security Council is the arbiter, but the Security Council almost always agrees when the application has proceeded that far. The Kurds have never applied for independence to the Security Council because they know they’ll lose. “A tremendous amount of weight is given to the home state from which you want to secede,” Griffiths says. It’s “the home state veto.” So the United States, if it wanted to, could easily hold up any state asking for sovereignty. It would have the Security Council seat, and it would have the home state veto.
“Let’s imagine that the Texas Nationalist Movement really made some headway,” Griffiths proposes. They call a referendum, and there’s a groundswell, and it looks like they have a majority of Texans on board. “The United States will work hard to defeat it on the grounds that it’s illegal.” But it wouldn’t matter. “Most countries in the world, at some level, to varying degrees of strength, declare that secession is illegal. That doesn’t mean those things become obstacles down the line.” Politics comes before the law when borders are in question. “Secession is more of a political conflict than a legal one.” If huge majorities declare they want Texas to separate, the legalities will become irrelevant. If it gets to 70 percent, “then the United States is going to have a real problem.”
The negotiators would be faced with a pair of dilemmas. The first would be from the point of view of the US government. “A big difference between Scotland and Quebec and Texas is the way that Texas is defined administratively,” Griffiths says. A Texas separation would be a precedent-setting problem. “If the government doesn’t show its commitment to stopping the Texas Independence movement, it gives pathways to other states to independence.” Scotland and Quebec are already distinct political entities. Not US states. “Jurisdictionally, they’re all the same,” Griffiths says. If one state leaves, where does it end?
There would be a dilemma on Texas’s side, too. They would have a moral right to secede, and they would sense massive pressure from their supporters to declare independence. But such romantic ideas of statehood, derived from the eighteenth and nineteenth centuries, would have little purchase in the twenty-first century. It’s all very well to imagine a bunch of independence-minded Texans raising their rifles in the air and shouting, “Don’t mess with Texas!” and defying the world in the name of their freedom. That’s all well and good until nobody will land an airplane in a Texas airport. And a separate Texas wouldn’t have the power of the current United States in global negotiations. They would just be another midsize country with no history and no connections.
“There’s only one sovereignty game,” as Griffiths says. Everybody needs to get into the same club, and that club is the UN, which would require US approval. Some states separate without UN recognition. It does happen. Kosovo is not a recognized state. “To get plugged into the global economy, you need to be a UN member,” Griffiths points out. “You have states out there that are quasi-states: Somaliland, Nagorno-Karabakh, Northern Cyprus; they sort of endure as states. But it’s difficult. They’re sort of handicapped. They can’t do international exchange with foreign banks. They can’t have an international post address. So they’re forced to use the black market. All of these things are denied them because they’re not a sovereign state.” If you want to go to Northern Cyprus, you have to fly to Turkey, because it’s the only country that recognizes Northern Cyprus. So the planes touch down for a minute in Istanbul and then reroute to Ercan.
Both sides would have a lot to lose and little to gain by separation. As in the aftermath of the collapse of the Soviet Union, the international community’s first priority would be to denuclearize Texas or any new state formed out of American collapse. The second priority would be to prevent bloodshed. And, needless to say, Texas or any other remnants of the United States would no longer qualify as a superpower.
The fact that there is no established legal mechanism for separation in the United States—that there is in fact a massive counter-mechanism in the Constitution—is paradoxically what makes the idea of separation so dangerous. If the right to secession was determined by facts outside the text, then facts outside the text can determine it again. “If the Civil War did settle this issue, then no one would even be discussing it,” Miller says, which is his most convincing argument. If Texas or California declared themselves independent, would the federal government bring them back by force? Could they bring them back by force when 48 percent of American soldiers believe it’s a state’s right to leave? Secession may be unconstitutional, but it sure is American. What could be more American than the idea that “in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another”? America is founded on the right to break up political unities.
That’s what makes America separatism so fascinating, so distinct. The separatists love America even in their hatred. Both Texas and California separatists are obsessed with proving that their desire to separate is constitutional. It’s genuinely weird. Everywhere else in the world, unconstitutionality is a moot point. Quebec separatists do not worry about whether their departure would violate the spirit or letter of the British North America Act. The Catalans have no interest in proving they are maintaining the foundational Spanish political order. But Texan and Californian separatists do. “We’re not withdrawing from America,” Miller says. “We’re withdrawing from an economic and political union called the United States of America. And the two are not the same.” They are living their original national contradiction to the full—patriotic treason and treasonous patriotism.
These are movements grounded in a sense of loss. Separatists in America love America, and their love has emerged in the most twisted possible form: They have devoted themselves to the basic proposition that America is no longer possible in the United States of America.
These weird American separatists and their tortured adoration and contempt for their country are not new. The United States has always provoked a unique mixture of love and hatred among its most passionate patriots. “The Man Without a Country,” a short story by Edward Everett Hale, was a classic in its time, taught in high schools all over America; it produced that semi-religious devotion that high school literature sometimes elicits. During the bicentennial, there was even a gravestone set up in front of the Covington County Courthouse in Andalusia, Alabama, dedicated to the memory of Philip Nolan, the fictional character at the heart of the story.
The Atlantic published the story in December 1863, right in the teeth of the Civil War. “The Man Without a Country” was written at a time when America was unsure if it was a country and about another time when America was unsure if it was a country. Aaron Burr, vice president under Thomas Jefferson and the man who killed Alexander Hamilton in a duel, was charged with treason in 1807. It was alleged that he planned to establish a separate country in the Southwest. Burr was eventually acquitted. But Philip Nolan, the fictional coconspirator with Burr in “The Man Without a Country,” was not. At his trial, in a fit of rage, he shouts out “D—n the United States! I wish I may never hear of the United States again!” His punishment is the fulfillment of his wish: “Prisoner, hear the sentence of the Court! The Court decides, subject to the approval of the President, that you never hear the name of the United States again.” They even take away his naval buttons, which bear the inscription “US.”
Not only are Nolan’s fellow sailors forbidden from mentioning their home country; they have to cut any reference to it out of his books. “Right in the midst of one of Napoleon’s battles, or one of Canning’s speeches, poor Nolan would find a great hole, because on the back of the page of that paper there had been an advertisement of a packet for New York, or a scrap from the President’s message.”
He craves facts about American politics above all. Sex is as nothing to his desire to know about his homeland. At one point in the story, because the other sailors need his stateroom, he’s invited to a ball on the ship. Nolan meets a woman he knew from home and tries to squeeze some information out of her:
“And what do you hear from home, Mrs. Graff?”
And that splendid creature looked through him. Jove! how she must have looked through him!
“Home!! Mr. Nolan!!! I thought you were the man who never wanted to hear of home again!”—and she walked directly up the deck to her husband, and left poor Nolan alone, as he always was.—He did not dance again.
Meanwhile, the country keeps changing and Nolan has no idea. He belongs to what he doesn’t understand. And he loves what he no longer belongs to. His ship, on its endless sea journey, encounters a slave ship. The captain of Nolan’s vessel thinks only of returning the slaves back to their homelands. Nolan finds their longing for home unbearably moving, and he gives a speech to one of the youngsters on board:
“… Remember, boy, that behind all these men you have to do with, behind officers, and government, and people even, there is the Country Herself, your Country, and that you belong to Her as you belong to your own mother. Stand by Her, boy, as you would stand by your mother, if those devils there had got hold of her to-day!”
“The Man Without a Country” is in one sense a very simple story, one that you could happily read to boys that you’re about to send off to war, a strange but palatable fable of patriotism. But there is also a paradox knotted in its center: Every patriot hates his or her country. When you love your country, that’s when it drives you crazy. You can only love your country when you imagine it rather than live in it. You can only love home from the boat.
At the end of “The Man Without a Country,” Philip Nolan is lying in bed; his room has become a shrine to the country he cursed.
The stars and stripes were triced up above and around a picture of Washington, and he had painted a majestic eagle, with lightnings blazing from his beak and his foot just clasping the whole globe, which his wings overshadowed. The dear old boy saw my glance, and said, with a sad smile, ‘Here, you see, I have a country!’ And then he pointed to the foot of his bed, where I had not seen before a great map of the United States, as he had drawn it from memory, and which he had there to look upon as he lay. Quaint, queer old names were on it, in large letters: ‘Indiana Territory,’ ‘Mississippi Territory,’ and ‘Louisiana Territory,’ as I suppose our fathers learned such things…
As Nolan lies dying, a friend named Danforth finally tells him all that has happened to America—of the states that have joined the Union, the triumphs of the young country. But he can’t bring himself to talk about the Civil War, which was underway during the story’s composition. Even in the end, even by a compassionate friend, Nolan has to be deceived about the nature of his country.
“The Man Without a Country” is a profound, dark little story about what it means to belong. Is a country a collection of vaguely like-minded individuals participating, by choice or by the accident of birth, in a collective project? Or is it closer to a family with arrangements, with stories and symbols and rituals, that keep it splitting into factions? For Philip Nolan, dying aboard his ship, the country he loved was a half-remembered dream. And that’s the point: the more distant the memory, the more vague the dream, the more possible it is to love your country.
Dan Miller and Marcus Ruiz Evans are motivated by love of countries that are half-imagined dreams, half-remembered fantasies. Countries without the embarrassment of existence are the easiest to love. For Evans, California is the only place in the United States where he belongs, where there is “an acceptance of a range of different diversities, culturally and ideologically. This is the place where you can come and be accepted.” Miller’s love of Texas is more forthright, though more ethereal. “It’s this intangible quality. It’s hard to put words on it. I love Texas because I’m a Texan. My first ancestor fought with Sam Houston at the battle of San Jacinto. There is this mindset, this allure. There is just something about the people, about the land, about the climate, about the history. There is something about all of it. At the end of the day, it’s just my home. It’s home.” It is no surprise that it is so easy to convince people of the value of secession. Our homes are easy to love. The government, which becomes visible most commonly in failure, is easy to hate.
And when your country is a dream, how can any reality be more than a disappointment?
The Texas and California separatist movements are only the two largest. There are dozens of others. But separatist movements are marginal forces for disunion. The rising number of Americans who are disillusioned with their country is a more central threat: they don’t want America’s differences. They can no longer tolerate America’s contradictions.
Richard Spencer is the most prominent figure in the alt-right movement, and there has been a push, in the progressive press, against describing him in any other terms but monstrosity. There is certainly enough monstrosity in Richard Spencer. He has described his opponents as “fucking kikes” and “fucking octoroons.” “Those pieces of fucking shit get ruled by people like me,” he said in an audiotape taken clandestinely at the Charlottesville rally. But if you only acknowledge Spencer’s monstrosity, you will never understand the significance of his threat. He is not some prison house Nazi with “Born to Lose” tattooed on his neck. The man is charming. The charm is the threat.
He is educated and he has plans to build a national white identity and out of that identity a state. When you ask Spencer how he would envision his ethnonationalist state, he blithely mentions the Japanese constitution and Israel’s “Law of Return.” The new racism is not atavistic. It is not reactionary or stupid. Spencer believes, for instance, in reparations to African Americans: “White people have committed historical crimes against Africans, and those crimes have been detrimental to both peoples.” He just wants to pay reparations to people who live in another country, not his.
Spencer is a white nationalist, not an American nationalist—a key distinction. “I am profoundly ambivalent about the American project,” he tells me. The identity in his identity politics is not American. The United States, after all, is African in part. American culture, in almost all of its distinctive forms, is a mixture of European and African diasporas. Demographic change is the source of the turmoil. But demographic change is not something that is happening in America or happening to America. Demographic change is America, and Spencer knows it. “White people have assumed that they are America, and it’s dawning on them that they aren’t.” He has another, more ominous way of putting it: “I think we need to overcome America.”
Spencer’s whiteness is fragile; it senses itself under threat. That sense of white fragility is not new but it is quickly coalescing. To any sensible person, looking at America’s history on voting rights and real estate and incarceration, white supremacy looks like the prime motivation of the history of the country: an elaborate scheme to deny African Americans the status of free property-holding voters. But white supremacy is always experienced as supremacy about to be lost. It has possessed an imminent sense of erasure from its beginning. The original feature film The Birth of a Nation (1915) was an epic of white people under threat from a multicultural political elite. Obama quoted Faulkner in his great 2008 speech on race—“The past isn’t dead. It’s not even past”—but Faulkner was lamenting his own family’s losses, not the crimes of his people against African Americans. Whiteness is inherently nostalgic. In The Great Gatsby, Nick Carraway encounters a vision as he crosses Blackwell’s Island into Manhattan, a vision of hypermodernity: “A limousine passed us, driven by a white chauffeur, in which sat three modish negroes, two bucks and a girl. I laughed aloud as the yolks of their eyeballs rolled toward us in haughty rivalry.” That’s the future Carraway sees, crossing into the city. White Americans have always suspected that America is not essentially a white country and that their whiteness is incompatible with its future.
At one point as we chat, I ask Spencer how he feels at Trump rallies, whose spectators share none of his calm, reasoned articulateness. He must have more in common with any African American graduate student, I suggest. He attended the University of Chicago.
Even the idea that he would share more with a Black person than with a white person makes him squirm.
“They’re still my people,” he says about Trump’s crowds. “They’re still people that I have much, much more in common with than any African American.”
Underneath the impeccable manners, under the charm, lies a profound contempt for Blackness itself, which all the manners do nothing to alleviate.
“Most people do want to be around their own kind. It’s hard to explain because it’s so deeply ingrained. You care about your own family more than you care about other people’s.”
And so there it comes down to the real question: Who is the American family? The old, old question.
“The only thing that is different now is that these conversations are happening in public,” DeRay Mckesson tells me. Mckesson is the most prominent leader of Black Lives Matter, arrested in Baton Rouge for protesting, a major force behind Campaign Zero, a plan for the comprehensive police reform that would provide a real policy solution to the crisis between African Americans and the police.
“Trump isn’t the first person to say ‘build a wall,’ ” Mckesson says. “Trump made popular birtherism, but he wasn’t the first person to say it.”
The process that Black Lives Matter confronts runs deeper.
“The Civil Rights Act still emerged in a context of people pushing back. People got teargassed and water hosed. That was the status quo pushing back. And people still overcame.”
There was that word again: “overcoming.” Richard Spencer and DeRay Mckesson are not comparable human beings. One belongs to a movement based on the fundamental stupidity of racial pride and celebrates genocide. The other is looking for social justice and equality under the law. But, between them, you can see the cleaving, the unsettling, of the United States. They both want to overcome America in all its glorious, ludicrous contradiction.
The hyper-partisanship that is dominating American politics is, at least in part, the emergence of ethnic identity. The Republican Party has become a white rump party. The difference between the Democratic Party and the Republican Party over the past thirty years is that Republicanism became the party of white resentment of growing diversity, while the Democratic Party became the party of imposed multiculturalism. The racial resentment levels have nothing to do with age, so do not expect hope from that quarter. The reason young Americans poll as less racist is only because they are more diverse. In 2019, two researchers who study racial affect undertook a “cross-generational analysis of the nature and role of racial attitudes in the 21st century.” They found “younger Whites are not bringing about any meaningful change in the aggregate levels of racial resentment.” And as we saw in Dispatch Two, as diversity increases, it only increases the sense of white threat.
For 240 years, America was a white settler country that could pretend it contained transcendent post-ethnic values. That pretense survives, at the moment, in a kind of inertia. For how long? “We could imagine that changing over a couple of generations. We could imagine political divisions growing deep enough in the United States that some states rely on those political divisions to see themselves as a distinct nation,” Jason Sorens says. “There is something that could lead to the formation of a separate nation.”
Separate ethnic identities are emerging: America as a white settler republic, America as a multicultural democracy. You can have one or the other. Both cannot survive except as distinct countries.