ABSTRACT
This chapter challenges us to rethink our most basic understanding of constitutionalism. In reality, just like authoritarian regimes, the majority of democracies worldwide adopt a militant approach to combat the threat of secession. In this struggle, militant democracies deploy the most potent, unconventional constitutional weapons. Their arsenals include both bans on political parties and constitutional eternity clauses. To understand states’ motivation for this all-out war against secession, we must reconceptualize popular sovereignty as a territorial concept – composed of citizens plus territory. Secession redefines the identity of the constitution-making body – “We the Territorial People”. Thus, it can’t be legitimized from within the constitutional system. This, in turn, explains why secession typically requires a revolutionary constitutional beginning, and may not be achieved via a constitutional amendment. This chapter thus argues that the American post–Civil War Texas v. White decision is more representative of comparative constitutional law on the subject, than Canada’s Reference re Secession of Quebec decision. The chapter discusses the following questions: (1) What is secession for constitutional law purposes? (2) How is the secessionist struggle affected by and framed within a global discourse of rights? (3) How do constitutions treat secession? (4) Why did the literature miss the prevalence of anti-secession constitutionalism? (5) Why do constitutions include a total ban on secession? (6) What processes may legitimize secession? (7) How does international law cooperate with constitutional law to discourage secession? And, finally, (8) what are the lessons for comparative constitutional law?
