Opting Out of 'Global Constitutionalism'

Abstract

Much has been written about the global convergence on constitutional supremacy. Yet, a closer look suggests that while constitutional convergence trends are undoubtedly extensive and readily visible, expressions of constitutional resistance or defiance may in fact be regaining ground worldwide. This may point to a paradox embedded in global constitutionalism: the more expansive constitutional convergence trends are, the greater the likelihood of dissent and resistance are. In this article, I chart the contours of three aversive responses to constitutional convergence: neo-secessionism, nullification, and deference to local authority, and draw on an array of comparative examples to illustrate the distinct logic and characteristics of each of these responses. Taken together, these increasingly common expressions of defiance provide ample evidence that global constitutionalism is not the only game in town. Neo-secessionism, nullification, and other forms of constitutional dissent and “opting out” may thus be viewed as a reaction against the centralization of authority and the decline of the local in an increasingly—constitutionally and otherwise—universalized reality.

Keywords: Global Constitutionalism, Comparative Constitutional Law, Populism, Constitutional Convergence, Secession, Nullification, Margin of Appreciation, Opting Out