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Holey Union: The Constitutional Paradox of Secession

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Abstract

There are secessionist movements in all parts of the world, encompassing both democratic and non-democratic countries. It is typically thought that this important phenomenon is regulated by international law alone. But, this article argues that when looking anew at constitutional law through the lens of secession, democracies’ weak spots are revealed. While political actors and scholars traditionally believe that bans on political parties ('militant democracy') and constitutional eternity clauses (`unconstitutional constitutional amendment`) are used and justified to protect democratic values alone, they are in fact also used to fight against secession. Democracies have been able to conceal their fight against secessionists, by creating a large gap between “the law on the books” and “the law as practiced.” This raises paradoxes so extreme, the democracies begin to appear to be using the tools of authoritarian regimes. In addition to exposing the facts on the grounds, the article also makes two normative claims: First, it argues that secession reveals the ways in which both doctrines—the ban and eternity clauses—are inextricably intertwined. This assertion is general and goes beyond the secession context. Second, the article argues that secession is helpful in revealing the intricate relationship between constitution-making and constitution-amending powers. Even those who hold that the power to amend the Constitution should be treated as equal to the constitution-making power may find that an exception is needed in the secession context. Secession may be regarded as an annihilation of the Constitution because it redefines the sovereign bodies. As such, secession necessitates extra-constitutional mechanisms. Contrary to the prevailing understanding that it is sufficient to garner the support of the seceding population, secession may require the independent deliberate consent of two new peoples—the seceding as well as the remaining population. Studying the delicate dance of constitutional democracies and secessionist movements not only enables a better understanding of constitutional law but may also shed new scholarly light on assumptions that Constitutions are generally silent about secession and may even implicitly allow it.

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... Holey Union: The Constitutional Paradox of Secession, by Rivka Weil [83] "Studying the delicate dance of constitutional democracies and secessionist movements not only enables a better understanding of constitutional law but may also shed new scholarly light on assumptions that Constitutions are generally silent about secession and may even implicitly allow it." ...
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A collection of essays, articles and papers, in the tradition of the Federalist and Anti-Federalist Papers, that discuss secession from a legal, constitutional and historical perspective. Since the original release of the first edition of The Annotated Secessionist Papers, the world has not ceased to view secession and devolution as a legitimate recourse for people across the globe that seek more responsive democratic representation. In Europe, there are currently twenty-one active and real secession or devolution movements.
... Holey Union: The Constitutional Paradox of Secession, by Rivka Weil [83] "Studying the delicate dance of constitutional democracies and secessionist movements not only enables a better understanding of constitutional law but may also shed new scholarly light on assumptions that Constitutions are generally silent about secession and may even implicitly allow it." ...
Book
Why is it important to talk about secession? Few people that believe secession is a legitimate political theory, right and recourse also believe that in a practical sense it is achievable, reasonable or even preferable. Devolution is a complicated matter and requires a more or less united political will among a people within a region or area – within the confines of modern America it seems unlikely any such will of a sufficient majority will soon emerge, anywhere. The question thus remains, why even discuss the subject? It is important to honestly discuss the matter because it goes to the very heart of how the Union of States was formed, what the Constitution was to mean and what relation the central government was to have to the people. Many of our contemporary political problems stem directly from a failure to understand foundational principles. Perhaps in engendering more honest discussions about foundational principles we might actually see contemporary problems more correctly
Book
Full-text available
A collection of essays, articles and papers, in the tradition of the Federalist and Anti-Federalist Papers, that discuss secession from a legal, constitutional and historical perspective. https://www.amazon.com/dp/1983255041
Article
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In this inaugural issue of The Calhoun Review we examine the topic of secession, particularly as it applies to contemporary political discussions in the US and internationally. In the standard narrative of US history, particularly as told over the last 30-40 years, Calhoun was the godfather of secession which lead to a war and was proven a flawed and illegitimate concept.
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