Many of the Supreme Court’s decisions as to state sovereign immunity are problematic, but there is an originalist basis for some of those decisions.
The effects of the vote on Scottish Independence, like the French Revolution, will not be contained within its borders. Whatever the outcome in Scotland, its referendum will reverberate across Europe, energizing the many culturally homogeneous peoples who view themselves as trapped within distantly governed and soulless nation states. The consequences will likely be the creation of more nation states within Europe and certainly more devolution to subunits within nation states. It is a revolution of both cultural solidarity and political subsidiarity.
The European Union, European peace, and the affluence and anonymity of the globalized market economy are the tinderbox for the coming conflagration. For all its faults, the EU has created a zone of relatively free trade that makes integrating markets within nation states less important. Historically, the benefits of freer trade led to customs unions that in turn generated many of today’s nation states from much smaller entities. Now smaller culturally homogenous localities can get the prosperity trade brings without giving up their cultural identity.
The security advantages from being part of a larger European nation state are also perceived to have declined. Nations within the EU have not fought a war among themselves since World War II. Russia’s recent incursion into Ukraine should be a wake-up call, but for most Europeans Ukraine is faraway nation of which they know nothing. And others in prospective breakaways may think they can free ride on the many nations already in NATO that are closer to the Russian bear.
Finally, globalization has made citizens richer, but more desirous of institutions that distinguish them from the rest of the world. Thus, even if going it alone costs some economic growth, already well-off peoples may gain more at the margin in cultural solidarity than they lose in their material livelihoods. The reviving independence movements respond to that third human thirst – fraternité – which neither the liberté of the free market nor the egalité of the welfare state quenches.
I believe it nevertheless probable that the Scotland independence vote will fail. Economic arguments seem overwhelmingly to cut in favor of a “No” vote. Scotland is a net beneficiary of transfers within the UK, and, more importantly, it has no good currency option, apart from the pound, which the UK would not share after independence. The Euro has hardly worked out well, and Scotland would face a run on their independent currency.
But other subunits, like Catalonia or Northern Italy or the Flemish section of Belgium do not suffer from these disabilities. They provide net transfers to the rest of their nations and are already in the Euro. They will be emboldened simply by the fact of the referendum. Moreover, the UK has created a European precedent by offering a new package of even greater autonomy to the Scots to persuade them to stay. Other nation states will have to do the same for their own cultural minorities.
Thus, even if European nations states manage to stay together, constitutional federalism likely has a greater future in Europe than in the United States where, with a few exceptions like Texas, geographical areas increasingly do not map onto very distinctive cultures. While federalism has many virtues beyond its capacity to preserve cultural diversity, constitutional structures are matters not only of the intellect but also of the heart.