U.S. Attorney General Jeff Sessions is Wrong: Nothing is “Settled”

Jeff Deist – April 5, 2018

Can political arrangements be dissolved peacefully? Legally? At the ballot box? By referendum? Or by any other mechanism short of outright violence and civil war?

According to Attorney General Jeff Sessions, the answer to these questions is no. Speaking in California yesterday on the subject of immigration and sanctuary cities, he issued this remarkable statement that manages to upend the entire concept of federalism in just a few short sentences:

There is no nullification. There is no secession. Federal law is the supreme law of the land. I would invite any doubters to go to Gettysburg, or to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled.

In Sessions’s mind, polities are forever. They’re set in stone. The US Constitution established a permanent and supreme federal state — a view totally at odds with that much better document, the Declaration of Independence. The 50 states exist as nothing more than glorified federal counties, able to exert jurisdiction only in those areas not preempted by superior federal law.

And the cheap shutdown tactic of announcing a supposed legal precedent as “settled” is countered simply by pointing out how unsettled the American public really is, on issues from guns to immigration to abortion to Trump.

Constitutional jurisprudence, awful as it is, is hardly settled. It exists in a state of constant flux. As does history itself. Wasn’t English colonial rule “settled law” in 1700?

If only we could arrive at “settled liberties.”

Ludwig von Mises, unlike Attorney General Sessions, was a forceful and determined advocate of self-determination. Having witnessed firsthand the collapse of a far-flung Habsburg Empire, Mises was proudly Viennese in outlook after the horrors of the Great War.

In his classic Liberalism, written in the 1920s, Mises provides one of his most important political passages on human autonomy — in just three short pages subtitled “The Right of Self-Determination”:

The right of self-determination in regard to the question of membership in a state thus means: whenever the inhabitants of a particular territory, whether it be a single village, a whole district, or a series of adjacent districts, make it known, by a freely conducted plebiscite, that they no longer wish to remain united to the state to which they belong at the time, but wish either to form an independent state or to attach themselves to some other state, their wishes are to be respected and complied with. This is the only feasible and effective way of preventing revolutions and civil and international wars.

To call this right of self-determination the “right of self-determination of nations” is to misunderstand it. It is not the right of self-determination of a delimited national unit, but the right of the inhabitants of every territory to decide on the state to which they wish to belong. This misunderstanding is even more grievous when the expression “self-determination of nations” is taken to mean that a national state has the right to detach and incorporate into itself against the will of the inhabitants parts of the nation that belong to the territory of another state.

In Mises’s view, self-determination was a fundamental principle of liberalism. Mises focused on the rights of individuals, while Jeff Sessions focuses on the power of the state. These two views are incompatible, of course, but just as in Mises’s time they remain the fundamental political question. Do individuals and civil society rule, or is the state sovereign? Do we organize society around economic means or political means?

To be clear, conservatives and left-liberals are equally guilty here. Both richly deserve Sessions as the chief enforcer of a lawless and unbridled federal government (sorry progressives, you don’t get to rediscover states’ rights just because you hate Trump’s immigration posture). When it comes to issues of federalism, secession, and nullification, organs like Salon and National Review enjoy a meeting of the minds. Bring up the Civil War, much less the 9th and 10th amendments, and Ben Shapiro or Jonah Goldberg sound a lot like Joan Walsh or David Corn. And they all sound just like Sessions. Their kindergarten-level view of US history and the Constitution makes them all comfortable with a dominant central state that does not abide any degree of state or local noncompliance.

As I said in an interview with Bob Murphy of the Lara-Murphy Report:

Ah yes, secession — bogeyman of both left and right. I recently heard Victor Davis Hanson, a conservative with the Hoover Institution and National Review, refer to Calexit [an analog to “Brexit” for California leaving the Union — eds.] as a “neoconfederate” idea. Now Hanson is a brilliant guy, a formidable intellectual and definitely not some partisan hack. So when someone of his stature is so egregiously wrong and dismissive of the issue, you know we have a real problem. It’s the old intractable idea that the Civil War somehow decided things. Throw in a couple of specious Supreme Court decisions and you’ve unfortunately poured concrete into the minds of most Americans. What a pity, because breaking up and going through an admittedly painful divorce might be much more humane in the long run than forcing everyone to stay married to an abusive spouse in D.C. Chalk it up to Manifest Destiny and the mentality that USA Inc. must only expand, never contract — because something deep in the American psyche won’t let go of a single state.

Brexit, Catalonia, and the Scottish independence movement are just the tip of the iceberg. As debt-laden governments, their currencies, and their entitlement promises begin to unwind over the coming decades, we should expect more movement away from large centralized states. Every other aspect of life becomes more decentralized; why should governance escape the dominant trend of our age?

Political globalism and supra-national governance, under the auspices of organizations like the UN, IMF, World Bank, NATO, will decline rapidly as geopolitical trends. Independence movements, whole or partial (via nullification, subsidiarity, and localism) are the happy future.

Smaller polities, marked by self-governing regions with loose treaties providing for shared defense and trading zones, will replace sclerotic national governments. Larger countries, with tens of millions culturally, economically, and socially diverse inhabitants, will become unmanageable and ungovernable.

Jeff Sessions is wrong: nothing is settled. Libertarians should cheer.

This article was originally published at Mises.org. Jeff Deist is president of the Mises Institute. He previously worked as chief of staff to Congressman Ron Paul, and as an attorney for private equity clients.


Another source for the comments by Jeff Sessions can be found here.

 

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