Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide

86 Pages Posted: 1 Nov 2017 Last revised: 31 Dec 2018

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Date Written: October 31, 2017

Abstract

The prevalent approach suggests that constitutions are silent about secession and may even implicitly allow it. But an examination of world constitutions reveals that the overwhelming majority of countries vigorously protect territorial integrity. This is true even of countries classified as consociational or consensus democracies. Scholars further point to the existence of secessionist political parties as proof that secession may align with constitutionalism. This Article, however, explains how democracies engage in a delicate game to chase and eliminate secessionist political mobilization. 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.” Some constitutions also use doublespeak to declare territorial integrity inviolable while nevertheless setting procedures for territorial change. In fact, democracies employ the most unconventional constitutional weapons to fight against secession. These include a ban on secessionist political parties from participating at elections and a constitutional eternity clause that makes territorial integrity an eternal value, not subject to constitutional amendment. These tools raise democratic paradoxes so extreme that democracies appear to be using the tools of authoritarian regimes. Militant democracy must be re-characterized to capture not just bans on political parties, but also eternity clauses. It serves to protect existential needs of states, not just their democratic regime. Even when democracies allow for secession, they set such hurdles that secession becomes all but impossible to achieve. Countries’ total prohibition on secession may be explained on strategic as well as principled constitutional law considerations. This Article argues that constitutions’ treatment of secession reveals that “We the People” is a territorial concept. The Canadian landmark Reference re Secession of Quebec decision’s precedential value for world constitutionalism must thus be qualified.

Keywords: militant democracy, territorial integrity, secession, territorial sovereignty, unconstitutional constitutional amendment, eternity clause, Reference re Secession of Quebec

Suggested Citation

Weill, Rivka, Secession and the Prevalence of Both Militant Democracy and Eternity Clauses Worldwide (October 31, 2017). 40 Cardozo Law Review 905 (2018). Available at SSRN: https://ssrn.com/abstract=3062925 or http://dx.doi.org/10.2139/ssrn.3062925

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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