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Posts Tagged ‘constitutionalism’

In this three-part series of posts, I will be blogging my new SSRN working paper, “Designing a Constitutional Right of Secession: Applying Normative Principles and Empirical Findings.” The paper defends a right of unilateral secession for any country in which the possibility of secessionist violence is non-negligible, or where central governments are already unwilling to suppress secession militarily.

In this post, I will explain the basic argument in favor of a right of unilateral secession, that is, a justiciable right of a region to secede by plebiscite without a right of veto for other parts of the country or for the central government. I argue for a moral duty on a government to implement a constitutional or legal right to secede, not for a fundamental, abstract, moral right to secede. The difference is important because real-world politics often makes it impossible to satisfy everyone’s moral rights. The case presented in the paper is for legally recognizing a right to secede even when secession would violate some individuals’ rights. Moreover, the argument is about domestic legal guarantees for secession, not international institutions. It may be desirable for a government to recognize a unilateral right of secession even when it is undesirable for international institutions to intervene to enforce such a right.

In the next post, I will address arguments against a legal right of unilateral secession that fail. In the final post, I will explain how a right of unilateral secession should be qualified and structured in a country’s constitution.

To make the argument, I start with a set of normative assumptions and a set of empirical findings. The normative assumptions are intended to be general enough that they can be widely endorsed by people of widely differing moral and political perspectives, who nevertheless share some basic commitments. I then consider how different “secession regimes” — that is, legal approaches regulating secession — can satisfy these principles, bearing empirical findings in mind.

Here are the normative assumptions, ordered lexically so that higher principles take precedence over lower ones:

  1. Maximize physical integrity rights for all. The range of potentially permissible secession regimes is limited to those that can plausibly satisfy this principle. Physical integrity rights include individual rights against extrajudicial killing and physical assault, torture, and illegal detention.
  2. Maximize other basic liberties for all. Among those regimes that can satisfy the first principle, only those that also satisfy the second principle are potentially permissible. Political philosophers disagree on what counts as “basic liberties” that any minimally just regime must satisfy. At the very least, these liberties include wide guarantees for freedom of speech, thought, conscience, association, and equality before the law. John Rawls (1999, pp. 197-9) argues that the “fair value of equal political liberty,” a right to security of personal property, and the right to free choice of an occupation or profession count as fundamental liberties. “Free-market fairness” advocate John Tomasi (2012) also includes the right to security of productive property and the right to own a business. And so on. To the extent that there is disagreement about what counts as a basic liberty, there may be disagreement about the range of potentially permissible secession regimes.
  3. Follow the principle of Pareto optimality. For any two regimes A and B and any two sets of citizens X and Y, if the consequences of the two regimes are such that X prefer one regime to the other, while Y are at least indifferent between the two regimes, then select the regime that X prefer. This principle rules out secession regimes that make some people worse off without making anyone better off, relative to some alternative regime.
  4. Satisfy all other moral principles. Differing moral foundations yield different moral principles. I avoid making claims about moral foundations, but these foundational views may yield further principles limiting the range of permissible secession regimes. Differing views on the nature and importance of distributive justice and economic growth can justify marginally different views on the appropriate secession regime.

I consider the principle of “no forced association” under this last heading. Libertarians, for example, often claim that governments may rule only with the literal consent of each individual under their rule. (Nozick famously disagrees.) Real-world politics always requires some individuals to be coerced. Prohibiting secession coerces some people into supporting a government to which they do not consent. But allowing secession also allows secessionists to coerce the anti-secessionists in their midst. It may be ideal for governments to rule only on the basis of unanimous consent — a question outside the scope of this paper — but in practice, they do coerce nonconsenters. So we have to figure out legal rules for secession in the world as it exists. I argue that the consent principle yields only a weak presumption in favor of allowing secession whenever a majority in the seceding region votes for it. Presumably allowing secession under such conditions will reduce the number of nonconsenters. But it won’t necessarily minimize the number of non-consenters or the number and severity of rights violations, as we shall see.

The generalizable empirical findings about secessionism are as follows: (more…)

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The New York Constitution prohibits pork-barrel spending and corporate welfare: government money for private projects. Here’s what the clause says:

[T]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.

Couldn’t be clearer, right?

Wrong. The state supreme court today ruled – in a split decision – that this constitutional provision is unenforceable. The state can give money to whomever it wants so long as it is not “patently illegal” to do so.

In dissent, Judge Robert Smith wrote:

I have defended before, and will no doubt defend again, the right of elected legislators to commit folly if they choose. But when our Legislature commits the precise folly that a provision of our Constitution was written to prevent, and this court responds by judicially repealing the constitutional provision, I think I am entitled to be annoyed.

Indeed.

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Just a few short years ago, Thailand seemed to be in enviable shape compared to the rest of southeast Asia. It had bounced back strongly from the 1997-98 financial crisis and was posting very robust GDP growth, topping 8% on an annual basis in 2003 and 2006. It had seemingly made a successful transition from a traditional monarchy to a constitutional monarchy in which the king’s powers were limited and legislators were chosen in free and fair elections.

Then it all began to unravel with the military coup against Thaksin Shinawatra. Yes, Shinawatra was populist and corrupt, and there may have been a bit of fraud in his 2005 re-election victory. But the protests against him were significantly protectionist and nationalist in origin, having to do with the sale of a family business to a Singapore corporation. And what well-established democracy has been immune to populism, corruption, and election fraud?

At any rate, the military coup and Shinawatra’s ouster merely ushered in an age of extreme political instability. Today BBC News has been reporting on running street battles in Bangkok, as the army and Shinawatra-supporting red-shirts face off. By choosing coercion over constitutionalism, the conservatives associated with the monarchy, military hierarchy, and the mostly urbanite “yellow shirts” shot themselves in the foot. They said they wanted political stability, but they got extreme instability. The back-and-forth tug-of-war between the red-shirts and the conservatives has no end in sight, now that the rule of the gun has replaced the rule of law. Can this genie be stuffed back into his bottle?

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