The Left and patriotism

Volokh, Eugene VOLOKH at
Fri Jan 27 15:29:47 PST 2006

	I appreciate Greg's admonition; let me try to tie this a little
further to constitutional law.

	The original question, from Daniel Hoffman, I believe, had to do
with whether some of the blue states should secede.  I take it that this
was a question about constitutional failure -- about whether our system
of government was so flawed, or at least so inadequate to the needs and
desires of certain states, that they ought to abrogate their
constitutional connection with the rest of the nation.

	If this was simply meant to be "rhetorical excess," that's fine
by me.  But I thought I detected in the original post a seriousness, a
seriousness that struck me as inconsistent with what I understood to be
the relevant constitutional reality:  The reality that most Americans
are patriotic in the very simple sense that they love *America*.  Not
the U.S. Constitution; you can love the U.S. Constitution and not even
be American.  Rather, they have an emotional connection to the
particular national entity that is currently called the United States of
America.  Being patriots, they are highly unlikely to want to leave it
even when they disapprove of where the country has been heading for 6
(or even 12) years.  Being patriots, they are highly unlikely to want to
risk its permanent dissolution using a highly unpredictable "secede and
then reunify on better terms" strategy.  And being people with some
sense of perspective, they (even the solid Democrats among them) don't
think that secession or revolution are the main two alternatives -- they
think that the alternatives are secession, revolution, and winning some
elections, with the latter being the traditional, safest, and most
emotionally gratifying (to one who thinks of himself as a patriotic
American, and who has a sense of perspective) approach.

	That, it seems to me, is why the original claim of
constitutional failure that would justify secession is unsound.  And it
also, I think, helps illustrate my original point in response to Prof.
Hoffman -- which perhaps is indeed more a matter of political
observation than constitutionalism -- that any seemingly serious call
for secession by a seemingly serious organization would instantly,
deeply, and possibly irrevocably marginalize that organization among
their fellow Americans, precisely because it would label that
organization as *not* patriotic American in the eyes of most Americans.
If it's Democrats, liberals, or people of the Left who call for that,
the end result would be a vast political windfall for Republicans,
conservatives, or people of the Right.


> -----Original Message-----
> From: conlawprof-bounces at 
> [mailto:conlawprof-bounces at] On Behalf Of Greg Magarian
> Sent: Friday, January 27, 2006 3:20 PM
> To: Volokh, Eugene; conlawprof at
> Subject: RE: The Left and patriotism
> The definition of "patriotism" and the necessarily predicate 
> definition of "America" (Is it territory?  How much?  Is it 
> an ideal?  Which one?) strike me as subjects whose 
> indeterminacy places them outside the special expertise of 
> constitutional law scholars. 
> But as the list custodian doesn't appear to object to this 
> flight of fancy, I'll throw in three points.  First, some 
> calls for secession, like other forays into rhetorical 
> excess, seem designed to make a point:  "This is not 
> America."  If the advocacy is spirited but ultimately 
> disingenuous, I don't see how it undermines the advocate's 
> patriotism. 
> Second, even if the advocacy is sincere, the strategic aim of 
> secession may be to provoke a conflict that ultimately 
> produces a better, reunified nation.  Finally, even sincere 
> advocacy of permanent secession may be quite patriotic if the 
> advocate chooses that course as a less destructive 
> alternative to revolution.  If I take up arms with the aim of 
> changing my country's system of government, I remain a 
> patriot, in the sense of maintaining allegiance to my land, 
> people, and cultural traditions; but I also scorch a lot of 
> that land and kill a lot of those people.  Opting for 
> secession in order to avert that damage might reflect a deep 
> love and regard for one's country.
> Gregory P. Magarian
> Professor of Law
> Villanova University School of Law
> 299 N. Spring Mill Road
> Villanova, PA 19085
> (610) 519-7652
> >>> "Volokh, Eugene" <VOLOKH at> 01/27/06 5:38 PM >>>
>     One can surely be deeply attached to free speech, to the 
> separation of powers, to liberty and equality, and towards 
> many other things.  Lots of people are so attached, outside 
> America as well as in America.  In fact, one can think very 
> highly of the U.S. Constitution (as practiced, as written, or 
> whatever else) and have no affection for America the nation.  
> One would not then be an American patriot, though; one would 
> be a U.S. Constitution enthusiast.
>     I think that someone could certainly call for superseding 
> the U.S. Constitution (in the sense that the Constitution 
> superseded the Articles of Confederation) and be deeply 
> patriotic towards America.  I think that, if (say) America 
> had become a Soviet- or Nazi- or even Franco-style 
> dictatorship, one can be an American patriot and yet call for 
> secession from the nation because the nation is beyond saving
> through other means.    
>     But if one just thinks that the Bush Administration has 
> done a lousy job -- or violated FISA or claimed 
> constitutional powers that it wasn't entitled to or violated 
> the Free Speech Clause by closing immigration proceedings to 
> the media -- and calls for secession because he finds it 
> impossible to wait for two more years to see if maybe the 
> Democrats can win 51% instead of 48%, then it seems to me 
> that one shouldn't (and shouldn't even want to) call oneself 
> a patriotic American.
>    Eugene
> -----Original Message-----
> From: RJLipkin at [mailto:RJLipkin at] 
> Sent: Friday, January 27, 2006 2:05 PM
> To: Volokh, Eugene; conlawprof at
> Subject: Re: The Left and patriotism
>         How would Eugene's analysis of patriotism deal with 
> the following issue?  Suppose someone believed that the last 
> six years (or ten or twenty years) simply distorted the 
> United States Constitution. I'm not arguing for this position 
> just supposing. If he or she saw no likelihood that the 
> nation would return to the constitutional faith, is he or she 
> unpatriotic by suggesting succession. Patriotic to what? 
> That's really the question. The government, the Constitution? 
> Under which interpretation? The nation as a historical 
> evolving entity? Another question is what counts as "America"?
>         Take an even more extreme example.  Suppose someone 
> argued that the American Revolution was betrayed by the 
> United States Constitution. The reason for fighting and dying 
> during the Revolution was to secure liberty and equality 
> which the Constitution then prevented. Again, I'm not 
> asserting or arguing for this position just supposing it. In 
> this case, which America or what aspect of "America" is 
> betrayed by inveighing against the Constitution or advocating 
> succession.
>         Of course, the Confederate states contended that the 
> federal government betrayed the Revolution and the 
> Constitution.  So who was unpatriotic? The Confederate States 
> or the Union?
>         To speak of patriotism, as Eugene acknowledges, 
> requires identifying the object of the patriotism. Similarly, 
> patriotism as, at least in part, an emotional commitment 
> first requires identifying the object of the emotional 
> commitment.  The historical nation? The underlying principles 
> of the Constitution or those principles which have evolved 
> through history. It's not obvious that we have a general 
> account of patriotism sufficiently useful to permit making 
> claims about what advocating succession indicates about the 
> patriotism (or lack thereof) of its advocates on the Left or 
> the Right. 
> Bobby
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
> Delaware
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