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Secession and the Prevalence of Militant Constitutionalism Worldwide

46 Pages Posted: 1 Nov 2017  

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. 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.” Constitutions often 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, democracies appear to be using the tools of authoritarian regimes. 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. 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, unconstitutional constitutional amendment, eternity clause, Reference re Secession of Quebec

Suggested Citation

Weill, Rivka, Secession and the Prevalence of Militant Constitutionalism Worldwide (October 31, 2017). Available at SSRN: https://ssrn.com/abstract=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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