Constitutionalism and Secession
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CitationCass Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633 (1991).
AbstractThe Soviet Constitution guarantees a right to secede. The American Constitution does not. Although some secessionists in the American South, invoking state sovereignty, claimed to find an implicit right to secede in the founding document, it was more common to invoke an extratextual and nonjusticiable "right to secede" said to be enshrined in the Declaration of Independence. In any case, no serious scholar or politician now argues that a right to secede exists under American constitutional law. It is generally agreed that such a right would undermine the Madisonian spirit of the original document, one that encourages the development of constitutional provisions that prevent the defeat of the basic enterprise.
Eastern European countries are now deciding about the contents of proposed constitutions. They are often doing so in the context of profound cultural and ethnic divisions, both often defined at least roughly in territorial terms. These divisions have propelled claims for local self-determination that could readily be transformed into attempts to guarantee a right to secede or even into secession itself. In Eastern Europe in particular, debates over the right to secede have already played an extraordinarily important role in discussions of new institutional arrangements. Various political actors have vigorously asserted a right to secede in Yugoslavia, the Soviet Union, and the Czech and Slovak Republics. Active secession movements have played a central role in current efforts to establish democratic governance. Such movements have led to claims for a constitutional right to secede, paralleling the Soviet right but to be respected in practice. A draft of the Slovak constitution, for example, creates a right to secede.
It is likely that these claims will be asserted all the more vigorously in the future. The claims for secession, or for a right to secede, raise exceptionally large questions about the theory and practice of constitutionalism. It is therefore an especially important time to explore the relationship between secession claims and constitutionalism in general.
My principal claim in this essay is that whether or not secession might be justified as a matter of politics or morality, constitutions ought not to include a right to secede. To place such a right in a founding document would increase the risks of ethnic and factional struggle; reduce the prospects for compromise and deliberation in government; raise dramatically the stakes of day-to-day political decisions; introduce irrelevant and illegitimate considerations into those decisions; create dangers of blackmail, strategic behavior, and exploitation; and, most generally, endanger the prospects for long-term self-governance. Constitutionalism, embodying as it does a set of precommitment strategies, is frequently directed against risks of precisely this sort. Political or moral claims for secession are frequently powerful, but they do not justify constitutional recognition of a secession right.
The principal argument for recognition of a right to secede is that it would operate as a powerful deterrent to oppressive and discriminatory practices, and also serve as an effective remedy for these practices. Usually, however, these goals can be promoted through other, more direct means. If they cannot be, a negotiated agreement embodying secession or a right of revolution-also not recognized in founding texts-is a preferable safeguard. The opportunity for a negotiated agreement or a right of revolution would provide a remedy against most of the relevant abuses without raising the continuous risks to self-government that would be created by a constitutional right to secede.
In the process of making this argument, I hope also to disentangle the various possible grounds for a moral claim to secession and to indicate which of those grounds have force in different contexts. Some of the discussion will provide support for the view that secession is often justified as a matter of political morality. In such cases I argue against national efforts to stop secession through military or other action.
In Part I, I discuss constitutions as precommitment strategies, designed to foreclose debate over certain fundamental questions. These strategies should often be seen as enabling rather than constraining, that is, as devices not only for limiting government, but also for facilitating the difficult process of self-government. This argument has powerful roots in the American constitutional tradition and applies with particular force in the context of secession. The argument also has general implications for the theory of what does and does not belong in constitutions. This theory remains in a surprisingly primitive state, and I will venture some preliminary remarks on the subject.
In Part II, I discuss reasons why a subunit of a nation might want to secede, and provide a brief assessment of those reasons as a matter of political morality. My conclusion is that those reasons often create a strong moral claim for secession. Even when this is so, however, the creation of a right to secede in a founding document is usually unjustified. Part III discusses qualified rights to secession, arguing that even though these are superior to a general right of exit for subunits, they are inferior to an across-the-board waiver of that right by all subunits in a nation.
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