Vol. 25 No. 1 (January 2015) pp. 1-5CONSTITUTIONALISING SECESSION by David Haljan. Oxford, UK: Hart Publishing. 2014. 448 pp. Hardcover $130.00. ISBN: 9781849464376.
Reviewed by Sanford Levinson, W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School, and Professor of Government, University of Texas at Austin. Email: slevinson@law.utexas.edu.
David Haljan’s CONSTITUTIONALISING SECESSION is surprisingly timely as well as intellectually engaging. The September 18, 2014 referendum in Scotland, in which 45% of the relevant electorate—about which more will be said below—voted to undo the 307-year-old Treaty of Union establishing the United Kingdom in favor of Scotland’s becoming an independent country, simply underscored the extent to which secession, an issue of great theoretical interest, is also of equally great practical importance throughout the world. The NEW YORK TIMES put it in a headline “From Kurdistan to Texas, Scots Spur Separationists” (Behnold 2014).
Crimea has now been absorbed into Russia after a formal referendum, whatever one thinks of its provenance, demonstrated overwhelming support to withdraw from Ukraine (to which the peninsula had been “given” by Nikita Khrushchev only in 1954) and return to its historic linkage with Russia. Perhaps more ominously, eastern Ukranians who also seem to identify more with Russia than with Ukraine, may continue to pose a threat to the maintenance of what remains of Ukraine after Crimean withdrawal. Quite obviously, if one looks westward to other parts of Eastern Europe, one sees two separate countries that had once been united in Czechoslovakia prior to a peaceful separation, not to mention the far bloodier dissolution of Yugoslavia, including, of course, the seemingly successful establishment of an independent Kosovo out of what had been Serbia. Not at all coincidentally, Spain, unlike, say, the United States, has resolutely refused to recognize the legitimacy of Kosovo, just as one might suspect that Spain would have been more resistant to welcoming an independent Scotland into the European Union even than the remaining truncated United Kingdom would have been. The reason, of course, is Catalonian nationalism, whose proponents had demanded an opportunity to vote in an independence referendum. They ultimately backed down, but the issue certainly is not going to go away. What is going on in the Middle East represents the dissolution of the World War I “settlement,” including the Picot-Sykes agreement establishing Iraq. It is hard to believe that an independent Kurdistan is not in our future, even if the borders of that country are obviously uncertain given the adamant opposition of Turkey and Iran to any Kurdish country that would threaten their own territorial integrity. (Syria might have similar objections, but it’s not clear if those objections would actually be operative in a way that those of Turkey and Iran would almost undoubtedly be.)
Moving far closer to home in North America, although the secession of Quebec seems now to be relatively unlikely, it would be foolhardy to express any strong predictions about Canada’s future, especially given the existence of a decision by the Canadian Supreme Court suggesting that Canada would be duty-bound to negotiate very seriously with a Quebec that had clearly expressed its desire to leave the country. Not surprisingly, Haljan spends many pages assessing the Canadian situation and, more particularly, what he clearly views as the dubious decision by the Court that can indeed be read as “constitutionalizing secession.” And one might even note that Reuters reported, just after the Scottish referendum, that almost a quarter of persons it polled within the United States expressed sympathy for the prospect of their state withdrawing from the Union established in 1787 (or 1776) and maintained, of course, only [*1] after the deaths of 750,000 persons between 1861-1865 (Reuters 2014). Interestingly enough, Haljan, whose range of references is certainly impressive, basically ignores the United States, perhaps because he accepts the scholarly consensus that secession is simply not permissible under the United States Constitution, even if the TIMES headline suggested the presence in Texas of would-be secessionists.
Haljan well describes his book as “address[ing] whether constitutions, and their constitutional law more generally, can make provisions for secession” (p. 25). Although he states that “it is my position that secession is indeed a matter appropriate for constitutional law” (p. 26), the principal thrust of the book is to criticize secessionism in terms of its fundamental threat to ongoing polities and their projects. Haljan certainly does not scant the importance of structures and institutions. I particularly welcome his reminder that “a constitution is in the first place a structural blueprint,” given my own view that too many “constitutional lawyers,” especially those within the legal academy, almost willfully ignore “hard-wired” structures that in fact are not the subjects of litigation in favor of those aspects of the Constitution that are litigated and thus open to endless debates about how properly to “interpret” them. (See Levinson 2012). Still, Haljan seems even more to emphasize the extent to which polities are defined by more than simply a set of procedures setting out how decisions shall be made, however important they may be. Thus the first long chapter of the book, following an introductory chapter setting out basic terms and arguments, is on “Associative Constitutionalism.” One must also address the ends for which persons come together in polities. For Haljan, it is “critical” to realize “that a constitution is that institution by which we identify, articulate and apply the commitments representative of our common-holding, as an association” (p. 81).
One can imagine treaties being negotiated between parties who share no real commitments other than the perception that their interests can be served by a necessarily limited agreement. But, if one is tempted by analogizing social orders to marriages (and, therefore, secession to divorce), it is impossible to imagine defining the practice of marriage, or of constitutionalism, without paying significant attention to the presence of common commitments, even if one recognizes, perhaps ruefully, that many marriages will in fact dissolve as the partners move apart from one another. In any event, Haljan perhaps echoes James Madison’s critique of “parchment barriers” when he states that a functioning society must adopt “as their own . . . a set of commonly held norms.” In their absence, “no amount of paper and ink will see an effective exercise and enforcement of those rights and freedoms in that society” (p. 83). From Haljan’s perspective, it would be anomalous indeed if the constitution of that society included procedures by which unhappy members could withdraw. Like Cass Sunstein (1991, 2001), and unlike Wayne Norman (2006), Haljan has little regard for those relatively few constitutions that explicitly authorize secession.
But Haljan obviously recognizes that secession is a real phenomenon over at least the past two centuries. Consider in this context one of the foundational documents of secessionism, the American Declaration of Independence submitted to for assessment by the world at large in July 1776. Two principal claims underlie the claims to legitimate secession from the British Empire and the domain of the King in Parliament. The first can be summarized as the sheer importance of self-determination, that is the “consent of the governed” to the necessarily coercive aspects of government. The second involves the ostensible “long train of abuses” visited upon the colonists by Great Britain. If one emphasizes this second theme, then secession serves as a “remedy” against unacceptable levels of oppression; the first, however, requires no proof of real oppression at [*2] all. It is enough that one simply feel a sufficient measure of alienation from governing authorities, even if, by stipulation, they are relatively benevolent. Thus neither Scottish nor Quebecois demands for secession rest on plausible accounts of oppression by the English or Anglophone majorities who constitute the United Kingdom or Canada, respectively. But so what? If one takes seriously a certain reading of Woodrow Wilson’s emphasis, at the conclusion of World War I, on the inherent legitimacy of “self-determination” by all peoples, oppression is simply not a condition precedent. “National aspirations,” Wilson told Congress, “must be respected; peoples may now be dominated and governed only by their own consent. ‘Self-determination’ is not a mere phrase. It is an imperative principle of actions which statesmen will henceforth ignore at their peril.” (Wilson 1918). Wilson’s own Secretary of State, privately commented that this commitment was “loaded with dynamite,” capable of generating endless conflict and warfare in a world in which there were too many nations and not enough territory to provide genuine “self-determination.” (Meyer 1991). Karl Mayer has suggested that Wilson has proved to be a more important world-historical figure than Lenin. Communism is effectively a spent ideological force, but we live every day with the implications of taking “self-determination” (and its linked concept of “popular sovereignty”) seriously.
Chapters three and four go on to examine what Haljan terms the “primary rights” and “remedial” theories of secession. For proponents of the first, the claim that a present order just does not provide enough “self-government,” however benevolent it might otherwise be, is enough to justify secession. The “remedial” approach requires instead the demonstration of a sufficient “train of abuses” (whether or not “long” in duration) that require for rectification the dissolution of the existing political order. As one might infer from Haljan’s emphasis on shared commitments, he is not sympathetic to “primary rights” approaches, which he considers at length with consummate fairness (as is true of all of his analyses in the book). For him “any properly grounded right to secession will be a just-cause version” (p. 112), requiring demonstration that the extraordinary remedy of secession is really necessary. And, he emphasizes, “it is important not to generalise or translate the concept of oppression . . . into terms of the denial of self-determination” (p. 131). “Secession is not a right, but rather a remedy” for the violation of rights (p. 133). It is justified only when necessary to “bring to fruition the core commitments” ostensibly defining the initial associative enterprise (p. 146).
Subsequent chapters examine various tensions between a relatively limited “remedial” theory and a more expansive theory linked to embracing the claims of nationalism-based self-determination. Readers should perhaps be cautioned that the book is largely analytic in approach. There are almost no extended references to concrete examples (such as those set out in the first paragraphs of this review). For some readers, this will undoubtedly be discouraging, but for anyone interested in the theoretical issues attached to secession, CONSTITIONALISING SECESSION provides an excellent overview of practically every theoretical issue present in secessionist disputes. It amply repays a close reading.
Return to Scotland for an important blend of theory and practice. One might think that the basis of the call for secession lay in a certain kind of nationalism and resentment by the 8% of Scots within the United Kingdom that, even with devolution, they are too much under the thumb of the 84% of the English who consequently dominate the Westminster Parliament. It was, after all, the Scottish National Party that promoted withdrawal from the United Kingdom. Yet the voters were scarcely limited to “Scots,” unless we define that term simply by reference to those permitted to vote in Scottish elections. The suffrage is extended to nationals of other [*3] European Union countries who find themselves living in Scotland for whatever reasons. A Portuguese laborer—or an iconic “Polish plumber” taking advantage of the mobility promised by the European Union—living in Glasgow was entitled to cast a vote. But someone born and raised in Scotland, whatever the degree of self-identification with the Scottish nation, could not vote if he (or she) had moved to Birmingham, across the border in northern England. But of even greater concern to Haljan, at least in terms of his theoretical positions, is the fact that only those living in Scotland could vote, and his concern is not based on a belief that the Birmingham Scots were not allowed an absentee ballot. Rather, if one does analogize secession to divorce, it is important to realize that only one partner in the marriage instantiated in the United Kingdom—composed of England, Wales, Northern Ireland, and Scotland—got to participate in the decision. Thus he concludes chapter Seven, on “Nationalism and Association,” by stating that the “decision to secede is not for one section of a constituency to make; it is for all to consider and deliberate upon” (p. 247, emphasis added). And Chapter Eight, on “Constitutional Text and Context,” elaborates the argument that “any resolution to secede, to dissolve, must be made within” the “encompassing framework” that constitutes the association in the first place (p. 249). Quite obviously, this concern is most plausible with regard to “non-remedial” secession movements that are not founded on the oppressive conduct of a dominant political majority. One might well believe that it is simply futile to tell victims of such situations that they must remain within an “encompassing framework” that has proved unjust (in terms going beyond frustrating certain aspects of “self-determination”). But, in the case of Scotland, one can well debate whether the rest of the United Kingdom should have been allowed any voice in whether the centuries-long political marriage should come to an end. Haljan rejects any notion that an existing political union is “indissoluble or eternal,” but he does strongly believe that the rejection of indissolubility requires “the participation of all constituent parties, as equal players of equal voice” (p. 296).
Perhaps not surprisingly, the final chapters turn to an extended consideration of the Quebec Secession Reference decision of the Canadian Supreme Court (1998) that at once rejected any “unilateral” right to secede on the part of Quebec, but suggested also that the rest of Canada would be under a duty to respectfully negotiate with Quebec should a significant-enough majority of that province indicate with sufficient “clarity” a desire to leave. Haljan suggests that by failing to give due regard “to the democratic will of the rest of Canada,” the Court’s opinion offers a significantly deficient conception of “constitutional secession” (p. 377). Moreover, the so-called “Clarity Act,” passed in the wake of the decision, which bases a duty of negotiation on a “clear” statement of a desire to secede by Quebec, is “defeatist legislation that offers no prospect for engaging unionist ideals and for opening bridges between” those discontented enough to want secession and the remaining wider Canadian population. He concludes Chapter 10, the final substantive chapter before a short (and helpful) concluding summary chapter, by laconically noting, “even the breakdown of a marriage usually invites some marriage counselling and reconciliation before a divorce” (p. 380).
It is truly unfortunate that this excellent book retails for $130. That will inevitably limit the number of individual scholars who will purchase it and make it part of their own libraries. But anyone interested in secession and affiliated with an educational institution should entreat his or her librarian to order a copy (and to borrow it as soon as it arrives). There can be no doubt that Haljan has made an enduring contribution to the literature on secession, and no future discussion can afford to ignore his well-constructed, sometimes even eloquent, arguments even if one continues to be sympathetic to unvarnished claims for “self-determination” even in the absence of tyrannical hegemons. [*4]
REFERENCES
Levinson, Sanford. 2012. FRAMED: AMERICA’S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE. Oxford: Oxford University Press.
Meyer, Karl E., “Editorial Comment: Woodrow Wilson’s Dynamite,” NEW YORK TIMES, August 14, 1991, available at http://www.nytimes.com/1991/08/14/opinion/editorial-notebook-woodrow-wilson-s-dynamite.html
Behnold, Kattrin. NEW YORK TIMES “From Kurdistan to Texas, Scots Spur Separationists,” September 11, 2014, available at http://www.nytimes.com/2014/09/11/world/europe/separatists-around-the-world-draw-inspiration-from-scotland.html?module=Search&mabReward=relbias%3As%2C{%221%22%3A%22RI%3A8%22}&module=Search&mabReward=relbias%3As%2C{%221%22%3A%22RI%3A8%22}
Reference re Secession of Quebec [1998] 2 SCR 217
Reuters, Scott Malone, Exclusive: Angry with Washington, 1 in 4 Americans open to secession, available at http://www.reuters.com/article/2014/09/19/us-usa-secession-exclusive-idUSKBN0HE19U20140919
Sunstein, Cass, “Constitutions and Secession,” 58 UNIVERSITY OF CHICAGO LAW REVIEW 633 1991), reprinted in DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO (Oxford U. Press, 2001).
Woodrow Wilson, Address to Congress, on February 11, 1918, available at http://wwi.lib.byu.edu/index.php/President_Wilson%27s_Address_to_Congress,_Analyzing_German_and_Austrian_Peace_Utterances
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© Copyright by the author, Sanford Levinson.
