CLASSICAL constitutionalism is a liberal but not necessarily democratic governing philosophy. The modern idea of the constitution puts “the people” in a pivotal position, with the type of formulation adopted in the preamble to the US Constitution—“We the people of the United States … do ordain and establish this Constitution”—now being almost universally adopted.1 The claim of “government by the people” was the banner under which American colonists sought freedom from British rule, the French third estate demanded the abolition of hereditary privileges, and that has since inspired all movements for constitutional modernization. But it was never so simple. The claim that power had been traded for right and force replaced by a narrative of a people who have agreed about the terms by which they are to be governed remains highly ambiguous.
Erected on a distinction between public and private, classical constitutionalism assumed that only active citizens, those men whose wealth gave them the freedom to deliberate on public matters, were fit to participate in the public business of governing. The rest—the great majority of “dependent” persons (women, domestic servants, laborers)—might be given basic civil rights, but they could not form part of the political nation. Indeed, those countries in the vanguard of promoting modern freedoms invariably perpetuated regimes of slavery or other forms of indentured servitude.2 Only active citizens could be entrusted with the task of attending to “the rule of law”; the rest could expect, at best, only to be “ruled by law.”
The great political struggle ever since has been against the institutionalized conviction that gender, race, and economic dependence render people unfit for active citizenship. Governing in accordance with the precepts of classical constitutionalism not only enforced a regime of hierarchy and inequality; through its stories of “peoplehood,” it also legitimated it.3 The critical question today is whether this political struggle to overthrow these classical assumptions by democratization brings about major changes in the values of constitutionalism or whether the ideological power of constitutionalism has been able to tame democracy and bring it into alignment with constitutionalism’s founding ideals.
In most liberal regimes, political struggles for enfranchisement led to legislative reforms that incrementally brought the vote to the laboring classes and women. These were invariably long drawn-out processes, with Britain achieving universal suffrage in 1928, France in 1945, and Switzerland finally realizing it only in 1991. But emancipation from slavery raised more acute issues.
Since slavery had been institutionalized through the US Constitution, the struggle to overcome it inevitably had a constitutional aspect. By 1860, emancipation seemed a remote prospect: the institution was deeply entrenched, with eleven of the republic’s fifteen presidents and seventeen of the twenty-eight Supreme Court justices slave owners.4 Only a few years earlier the Supreme Court had struck down an Act of Congress authorizing the outlawing of slavery in certain states on the ground that it infringed the Fifth Amendment’s prohibition on the deprivation of property without due process of law.5 Tensions over this issue reached a head during the 1860s but were completely resistant to political resolution. A bloody civil war followed.
The Unionist victory resulted in a sustained attempt to reunite the nation on the foundations of liberty and equality. Reconstruction included a rewriting of the Constitution through the Thirteenth, Fourteenth, and Fifteenth Amendments, which provided for the abolition of slavery, the equal protection of the laws, and protected the right to vote against discrimination by race. Congressional legislation advanced these constitutional principles, notably in the Civil Rights Act of 1875, which provided for equal treatment in access to public facilities.
However, enforcement of this new settlement, not being actively taken up by the political branches, was left to the Supreme Court. In a series of rulings over the following three decades, the Court delivered consistently restrictive interpretations of the Fourteenth and Fifteenth Amendments and the Civil Rights Act.6 In 1896 the Court then delivered the coup de grâce. Plessy v. Ferguson upheld the constitutionality of a Louisiana statute that required railway companies to “provide equal but separate accommodations for the white, and colored, races,” stating that the Fourteenth Amendment “could not have been intended to abolish distinction based on color, or to enforce social, as distinguished from political equality.” Adding insult to injury, Justice Brown stated that if, as the plaintiff argued, enforced separation stamped people of color with “a badge of inferiority,” it could only be “because the colored race chooses to put that construction upon it.”7
By the end of the nineteenth century, these rulings had effectively marginalized the significance of Reconstruction Amendments and legislation. Giving wide latitude to the states had deprived African Americans of any real protection from federal provisions. Throughout the south, states passed legislation prohibiting freedom of association and mandating strict segregation on the grounds of race. Covering the entire range of public facilities—transportation, parks, libraries, municipal housing, courtrooms and, above all, schools—these Jim Crow laws gave official sanction to the inferior status of African Americans and also legitimated their discriminatory treatment in private facilities. Slavery had been officially abolished in the 1860s, but as the twentieth century opened it had been converted into a caste system.8
From the outset, the notion of “separate-but-equal” facilities was a sham.9 Yet the constitutional struggle to overcome this failed to achieve much success until the latter half of the twentieth century. Only in the landmark cases known as Brown v. Board of Education of Topeka in 1954 did the Supreme Court begin to reconsider the constitutional principle, finding that in public education, “the very foundation of good citizenship,” the doctrine of “separate but equal” had no place and concluding that separate education facilities “are inherently unequal.”10 There is no doubt that the Court had grasped the significance of this ruling. It had held its first hearings in 1952 but, unable to reach a decision, it rescheduled hearings for the following year. In 1954 it then made a unanimous ruling but issued no decree. Only a year later did the Court determine how to implement desegregation; holding that it required local solutions, they remanded the process to local courts with no date for the end of segregation fixed.11
The Brown ruling related only to public schools, but it was the catalyst for a civil rights movement that eventually brought about the desegregation of all public facilities.12 To give them real force, however, the school rulings needed to be backed by determined governmental action, and neither the president nor Congress took the initiative.13 It was not until the Kennedy-Johnson era of the 1960s that the pace of desegregation gained momentum, reinforced by the Civil Rights Act of 1964. Later still, in the 1970s, it extended to the North where, because races largely lived apart and neighborhood schools were racially unmixed, comprehensive desegregation involved the pairing of schools and the contentious issue of mandatory bussing policies.
Given the lack of legislative action to address discriminatory practices, these issues had to be addressed by constitutional litigation. This gave courts significant new responsibilities that could neither be classified as dispute adjudication nor as legislation. And yet the task could hardly be called constitutional interpretation: the Fourteenth Amendment was so abstract as to defy precise interpretation and, in any event, its drafters were unlikely to have had such a matter in mind since during the 1860s there was no such thing as a public school system in the South. What the Court in fact did in Brown was to presume to exercise constituent power. In its role as guardian of the Constitution, it spoke “in the name of the people” to determine the contemporary meaning of the values of the regime. The Court held that it “must consider public education in the light of its full development and its present place in American life throughout the Nation.”14 This was not an interpretation of the law of the Constitution so much as a political judgment about the significance of social, economic, and cultural change on the constitution of the state.15
Can the allocation to the judiciary of the task of determining society’s fundamental political values of liberty, equality, and solidarity be justified? The Constitution, as we have seen, has both instrumental and symbolic functions. And although lawyers are well equipped to attend to the former task of interpreting the rules concerning the allocation of decision-making responsibilities, there is little in their education, training, and professional experience to suggest that they are suited to the latter. Why, for example, should Justice Brown, who delivered the majority judgment in Plessy and whose professional expertise lay primarily in maritime law, be trusted with such questions? One answer is that judges are bound to act according to principles. But are not these principles of such formality and abstraction that they only acquire determinate meaning once imbued with (contestable) values? Placing this onerous responsibility on the judiciary can be justified, Alexander Bickel famously suggested, only when judges are prepared to “immerse themselves in the tradition of our society” and “in the thought and the vision of the philosophers and the poets” so that they might “extract ‘fundamental presuppositions’ from their best selves.”16
Bickel’s answer suggests that the judiciary now assumes the key role of acting as a legitimating force. But at what cost? This process reinforces the false narrative that since the United States was established on a universal principle of equal dignity, the constitutional task of the courts is essentially one of redeeming that promise. Treating slavery as a moral flaw rather than a vital component of a socioeconomic regime leads to an identitarian politics of formal equality that masks substantive inequality.17 But it also absolves the political branches from having to face up to intractable political questions. It is certainly not accurate to suggest that judges are simply usurping the powers of the legislature and executive. The point, rather, is that constitutionalism establishes a scheme that offers incentives to democratic representatives to evade their most basic civic responsibilities. Diverting these issues to a forum that is relatively remote, unaccountable, costly, and operates on the principle of individual complaint, constitutionalism pushes ever more political issues into an institution that is insulated from the cut and thrust of ordinary life. Elsewhere, as the issue of enfranchisement illustrates, the political struggle is often long, intense, incremental, and the product of accommodation and compromise, but its consequences have at least been thrashed out in accountable institutions. By signaling that the people should turn to the forum of principle to deliver social change, aspirational constitutionalism carries the danger of draining the lifeblood from democracy, not just as a system of collective decision-making but, perhaps more importantly, as a way of life.
Constitutionalism is presented as a regime that marks the emergence of humanity from what Kant called “self-incurred immaturity.”18 It propagates a story of progress, one that eventually leads in 1917 to the US entry into the First World War, not from self-regarding interests but to free the world of imperialism and make it safe for democracy.19 But this narrative has its detractors. Erected on the principle of equal liberty, constitutionalism, they contend, is advanced to justify inegalitarian institutions and practices. It is a historically specific European experience masquerading as a universal that has been purposely employed by European powers to legitimate imperial conquests.
When European powers established settled colonies across the world, they did not base their claims purely on conquest. Force might be sufficient to acquire colonies, but a discourse of legitimation was necessary to retain them; power had to be tempered by right. The doctrine of discovery provided one such justification. This was the claim, contrary to the plain facts, that colonized lands were unoccupied. Its real purpose evidently was to assert a claim against other European powers.20 Sir Edward Coke, the “great” English common lawyer, was more blunt. In 1608, he simply ruled that “all infidels are in law … perpetual enemies” and could therefore be subjugated to the prerogative authority of a Christian king.21 Conquest was justified as the spread of Christianity to people who “as yet live in Darkness and miserable Ignorance” and that “may in time bring the Infidels and Savages … to human Civility.”22
The canonical text for North American colonists was Locke’s Second Treatise, which proclaimed, “In the beginning, all the world was America.” Without nationhood or territorial jurisdiction, Native Americans were in a “state of nature,” whereas European societies had advanced to the “civilized” stage and established modern governing institutions. Since the indigenous population had neither the concept of sovereignty nor that of property, Locke concluded that Europeans were free to establish settled colonies and to appropriate uncultivated land without their consent provided enough was left in common for others.23 The basic elements of his thesis were incorporated into US constitutional law in Johnson v. M’Intosh, in which the Supreme Court held that discovery by European powers conferred sovereignty by conquest, including the right to nullify any occupancy rights of the indigenous population.24
James Tully argues that Locke’s account masks the real history: “The invasion of America, usurpation of Aboriginal nations, theft of the continent, imposition of European economic and political systems, and the steadfast resistance of the Aboriginal peoples are replaced with the captivating picture of the inevitable and benign progress of modern constitutionalism.”25 Dispossessed through wars and treaties, indigenous populations had no rights in the new constitutional order. Such practices, argues Robert Williams, “provided a vital legacy for those English-Americans to whom, by virtue of their rebellion against the English Crown, devolved the mandate to civilize the Indian’s wild country.” The history of the American Indian in Western legal thought, he concludes, reveals that “a will to empire proceeds most effectively under a rule of law,” since it permitted “the West to accomplish by law and in good conscience what it accomplished by the sword in earlier eras.”26
The adoption of a uniform language of constitutionalism throughout settled colonies first excluded and then assimilated indigenous peoples. Later, constitutional democracies promoted accommodation, which required indigenous people seeking recognition of their status to present their case in that language. They were obliged to “seek recognition as ‘peoples’ and ‘nations,’ with ‘sovereignty’ or a ‘right of self-determination,’ even though these terms distort or misdescribe the claim they would wish to make if it were expressed in their own languages.” The struggle for recognition of their own way of collective being, Tully argues, presents “as fundamental a challenge to modern constitutionalism as Paine’s theory was to the vision of the ancient constitution.”27
The treatment of indigenous peoples during colonization is an extreme illustration of the way that modern nation-building suppresses linguistic, cultural, ethnic, or religious differences to construct a homogeneous national identity. The multitude is represented as the “sovereign people” who are presumed to have consented to the constitution that rules their lives. This is the “civilizing mission” by which peoples are to be led out of savagery and barbarism into a civilized state. As they evolve out of hunting and pastoralism into agriculture and commerce, their forms of government must similarly evolve from tribal leadership, despotism, and monarchy toward constitutional government.
Tully argues that constitutionalism goes further than just legitimating the historic practices of European imperialism. Instituting a uniform system of constitutional thought over a diverse range of cultures within contemporary states, it is a generalized cultural imperialism that now prevents us from thinking creatively about contemporary political challenges. As a plea to restore the traditional idea of a constitution as a general framework within which conventional practices gradually acquire authority through mutual recognition and accommodation, his argument extends far beyond the treatment of indigenous populations and the need for dialogue between peoples who do not share universal principles,28 to embrace differing conceptions of justice arising from race and gender differences.29 It can even be read as an argument in support of the variable practices of constitutional democracy and against the universal philosophy of constitutionalism.
Constitutionalism, Tully argues, imposes an inappropriate set of universal principles on culturally differentiated populations. But far from leading to the restoration of the traditional idea of a constitution, the solution most often advocated is aspirational constitutionalism. Sometimes labeled “transformative constitutionalism,” aspirational constitutionalism acknowledges these differences but uses the constitution to bring about social change by promoting inclusivity.
Consider two recent illustrations: South Africa and Ecuador. Charged with drafting a post-apartheid constitution of South Africa, the Constitutional Assembly undertook an elaborate participatory exercise of involving people in the constitution-making process with the purpose of ensuring that the constitution could express the views of a nation “united in diversity.”30 In addition to adopting a wide-ranging charter of civil, political, and social rights, its 1996 Constitution recognizes eleven official languages, protects customary and tribal law, promotes regional diversity, and institutionalizes multiculturalism.31 But Ecuador went even further. Their 2008 Constitution promulgated a vast array of social rights (food, water, health, social security, education, housing, work, and cultural identity) as well as recognizing extensive antidiscrimination rights (covering ethnicity, age, sex, culture, civil status, language, religion, politics, sexual orientation, and disability). Declaring all these rights equally important, the Constitution imposed a duty on the government to “adopt affirmative action measures that promote real equality for the benefit of the rights-bearers who are in a situation of inequality.”32
Subsequent experience has revealed that drafting ambitious principles is much easier than making them a practical reality.33 By making the constitution the pivot for delivering social revolution, however, such experiments reinforce the belief that the practical task of bringing about these momentous changes must fall to lawyers and courts.
Using the constitution as a vehicle for social change exposes a dilemma commonly faced in postcolonial contexts between promoting a modernizing universalism and embracing local particularism. Should the constitution project an idealized homogeneity of a newly liberated people or acknowledge the actual heterogeneity—racial, religious, linguistic, and cultural—of its peoples? This question was first played out on the great stage of India, a land of communities and caste, of racial, religious, and linguistic minorities.
After partition in 1945, when Muslim leaders declared their intention of forming the separate state of Pakistan, the Indian Constituent Assembly had a great many issues to resolve. Gandhi advocated a decentralized, village community–based system of government, but this traditionally rooted conception of constitution was rejected in favor of a modern centralized parliamentary system based on universal adult suffrage.34 Many of the remaining dilemmas were embodied in the person of Bhimrao Ambedkar, chair of the drafting committee of the Constituent Assembly. An “unalloyed modernist” who believed in “the modern state as the site for the actualization of human reason,” he was also, as a Dalit, aware that independence could easily lead to rule by the upper castes.35 Since provision had been made for separate representation of Muslims, Ambedkar argued that reserved seats must also be given to the so-called depressed castes. Facing opposition from Gandhi, who objected to the notion that upper castes could not represent all Hindus, Ambedkar prevailed. Constitutional provision was made not only for the legislative representation of “scheduled castes” but also for a program of positive action to ensure a proportionate representation in public employment.36 Social equality, the drafters recognized, required more than the establishment of formal legal and political equality.
Ever since 1947 there has been debate on whether India’s independence Constitution simply marked a transfer of power or signaled real social transformation. A strong case can be made that the Constitution did establish a framework for social transformation and that considerable progress has been made.37 But this is counteracted by studies indicating that public interest litigation, which was developed to overcome structural barriers to constitutional change, has singularly failed to deliver on its transformative ambitions.38 And once the inquiry shifts from constitutional litigation strategy to governmental practices, continuity with colonial rule becomes more apparent. Here, the citizens of constitutional theory become the subjects of administrative practice. From a governmental perspective, in which the population is counted, classified, and made the objects of policies, practices adopted under colonial rule have seamlessly continued in the postcolonial regime.
This continuity claim, a variant of the dual state thesis, is given a radical twist by scholars of the subaltern school. Partha Chatterjee presents the argument not just with respect to India but also to “most of the world,” by which he means the three-quarters of humanity who “were not direct participants in the history of the evolution of the institutions of modern capitalist democracy.” He argues that “civil society” is in practice confined to a small section of “culturally equipped” Indian citizens, and it is this select group who are “the people” of the constitutional imagination. The great majority of the population, by contrast, are “only tenuously, and even then ambiguously and contextually, rights-bearing citizens in the sense imagined by the constitution.”39 This majority must be attended to by governmental agencies, but this is as a matter of administrative policy rather than any expression of constitutional right. Many operate on the borders of legality, living in illegal squatter settlements, working in the informal sector, and interacting with public authorities only as a matter of necessity. To the extent that their claims are addressed at all, it is not through the medium of constitutional rights but on the different terrain of prudential political negotiation.
The great play made of the role of the Constitution as a vehicle of inclusion and transformation, we conclude, too readily absorbs the rhetoric of constitutionalism. In underestimating the depth of the class cleavage Chatterjee highlights, the Constitution’s capacity to achieve its integrative ambitions is grossly overestimated. The distinction between active and passive citizens remains, with the former governed by constitutional processes and the latter governed through administrative processes that are negotiated politically. But that is not all. By taking on political tasks well beyond its competence, the Court is in danger of losing legitimacy among certain sectors of the population. Once it is seen as a partisan institution that promotes liberal or aspirational values, its efficacy in performing more mundane constitutional tasks is diminished.40
Although in early phases of development, the state must often bolster its authority by drawing on traditional sources of commonality, constitutionalism rejects such primitive sources of nationalism. If all are to be included in an imagined political community, it is not possible to found unity on ethnicity, religion, language, or even common history. Constitutional recognition requires that the “community of fate” be transcended, and the people adhere to the principles of equal liberty inscribed in the constitution.41 This raises troubling questions for states in which it is difficult to build collective unity even on ostensibly universal principles. But can constitutional authority be maintained if regimes adopt exclusionary practices? In such “divided societies,” the practical challenges of institutional design are intense. Solutions commonly touted include power-sharing arrangements, special protection for minorities, or practices that avoid having to confront the lack of unity.42 Can this type of state persist in the age of constitutionalism?
Nepal is an instructive case. Its 1990 Constitution signaled major regime change, from authoritarianism to constitutional monarchy, but it sought to build the new order on a homogenizing idea of the nation. Despite Nepal comprising around one hundred ethnic groups or castes with a similar number of languages and at least ten religions, the Constitution privileged the country’s Hindu religion, Aryan culture, and Nepali language, thereby discriminating against millions on the basis of religion, caste, gender, language, and ethnicity. This attempt to institute exclusionary rule failed to garner popular acceptance. The new Constitution simply fueled mounting unrest that then erupted into civil war. The conflict was only finally resolved with the promulgation in 2007 of an interim Constitution establishing Nepal as a federal, democratic republic on inclusionary principles—a constitutional settlement made permanent in 2015.43 As this experience suggests, across many regions of the world, the symbolic power of inclusion is now so great that regimes seeking to build constitutional authority on exclusionary grounds simply cannot establish their legitimacy.
The most contentious case of exclusionary constitutionalism is that of Israel. Established in 1948 after the end of British colonial rule over mandatory Palestine, Israel had committed to adopting a constitution. But this was postponed, initially because of the 1948 war and subsequently because of lack of agreement.44 In its place, the Knesset passed a series of nine Basic Laws, three of which referred to Israel as a “Jewish and democratic state.” Formally adopted only in 1985, in reality this formula had been used from the beginning when Arab inhabitants were invited “to participate in the upbuilding of the State on the basis of full and equal citizenship.”45 Ambivalence was therefore built into the foundation. Although pledging to respect the citizenship rights of the indigenous population, it would appear that “the people” are constituted exclusively by its Jewish members.
This inclusionary-exclusionary tension has driven constitutional development. Israel’s symbols of national identity are exclusively Jewish, and so too are its processes of nation-building, especially the 1950 Law of Return, which gives every Jew in the world the right to settle in Israel. What, then, is the status of Palestinians who comprise around 20 percent of the population? Possessing civil and political rights, formally they have equal status, but the manner of Israel’s founding and development suggests that sovereignty and constituent power vest in its Jewish citizens, implying that “the people” does not include all the people of the territory.46 In a variant of Chatterjee’s claim that the majority of Indians are part of the population but without full citizenship rights, Mazen Masri argues that Israeli-Palestinians may be citizens but are not part of the constituent “people.” Israel’s regime, he argues, is founded on “exclusionary constitutionalism.”47
Masri’s argument has been contested by Israeli jurists who draw a distinction between Israel’s national identity (Jewish) and its civic and political identity (democratic). They argue that Israel is no different than many constitutional democracies that contain national or ethnic minorities but whose public character is determined by the majority.48 That may have been the liberal aspiration, but it seems beyond question that this is not the present reality, not least because the “Jewish and democratic” formula is no longer purely symbolic or cultural; it has become a structural—and exclusionary—characteristic of the state.
This structural characteristic was built into its foundation when it was assumed that two states—Israel and Palestine—would be established. It is the continuing failure to realize this objective that now makes this exclusion so contentious. Confronted with an existential threat it has faced since its founding, and seeking to establish a constitutional democracy mainly comprising immigrants without any experience of democracy and in a territory without strong democratic traditions, Israel has faced grave challenges. Recent political developments, including a 2018 nationality Basic Law that reduces the position of Arabic to “a language with a special status” and declares Israel the nation-state of the Jewish people,49 strengthen the argument that Israel is being transformed “from one based on constructive legal ambiguity into one rooted in exclusive ethno-theological values.”50 In the case of India, exclusion is attributable to social facts rather than to the constitution. In Israel, by contrast, exclusion exists at the normative core of its constitution.
In an age in which the constitution is no longer just an instrument for regulating government but has become a key symbol of social and political unity, “the people” in whose name that constitution is adopted is an intensely contested subject. Invented as a device to wrest power from the aristocracy and protect the liberties of the emerging bourgeoisie, the adoption of a written constitution signifies progress. Yet the original people of the constitution were invariably “men of property” who, in justifying this new regime, differentiated the people into active and passive citizens. Thereafter, the constitutional struggle has been to extend its benefits of protection and participation to the multitude. This, too, has been a progressive development.
Nevertheless, many radicals were suspicious of the entire constitutional project. Seeing the constitution as a device to protect the interests of the wealthy, and therefore as a barrier to be overcome, they sought social change either by elected majorities and legislative reforms or, in extremis, revolutionary overthrow of the entire regime. These are the political strategies that advocates of constitutionalism have tried to displace. Having established the authority of the constitution as a permanent but flexible framework, they aimed to constrain the powers of legislative majorities, to entrust the protection of its values to the judiciary, and to define “the people” through the prism of that constitution. All changes must be negotiated through the process of constitutional review. This in outline is the American story, most graphically illustrated in the treatment of indigenous populations, in the struggle of African Americans to realize citizenship rights, and latterly in such struggles as the rights of women to reproductive freedom or of homosexuals to equal treatment.
It is an innovation that has been widely embraced and greatly extended. Contemporary constitutions do not simply institute the negative rights regime of limited government; they incorporate aspirational values and ambitious schedules of civil, political, and social rights. Across the world, the constitution is now seen as the only medium through which to realize the promise of an inclusive regime of equal rights. The multitude is now vested with citizenship rights. Constitutionalism has come of age.
And yet, for all its progressive rhetoric, there is scant evidence that aspirational constitutionalism has been able to deliver the fundamental social change it promises. This is not so surprising: social reform still depends on political movements imposing their will on political parties that must then win control of the government to redistribute resources. But constitutionalization shifts the action away from legislatures and governments into courts and away from collective will-formation toward individualized rights-based claims. That constitutionalization has extended furthest in regimes where economic inequality is rising most rapidly offers corroboration.51 But what must surely occur when the total constitution finally reigns is a blurring of the distinction between government and society. State sovereignty is discredited in the name of advancing status rights.
As political movements are replaced by legal strategies and collective will-formation made subservient to rights arguments, regimes become depoliticized by the individuation of claims. The concept of “the people” is disaggregated into a multiplicity. It is unclear how, under such conditions, a state maintains the loyalty of its citizens. The question, most acute in divided societies where loyalties are already strained, is whether constitutionalization now makes exit a legitimate option. Can the concept of “the people” be disaggregated so that different peoples comprising a nation can claim a right to independence? In other words, is there a constitutional right to secede from the state?
The orthodox position was that concisely stated by Lincoln in 1861 when he stated that perpetuity “is implied, if not expressed, in the fundamental law of all national governments” and “no government proper ever had a provision in its organic law for its own termination.”52 But can this view persist in an age of constitutionalism? Permanence, it is argued, is a precondition of order and stability, and it provides the basis on which democratic deliberation can evolve, whereas a constitutional right to secede would promote factionalism and reduce the chances of achieving political compromise in the face of religious, ethnic, or linguistic differences. On the other hand, the right to secede offers a guarantee to minority groups that the majority will not adopt discriminatory practices. Nevertheless, there is an important difference between claiming that a group has good reason to secede from the state and claiming that it has the constitutional right to do so. But once the constitution is felt to express the collective values of society, this distinction between prudential political concession and constitutional right is blurred.53 Political negotiation of group differences is replaced with constitutional adjudication of an asserted right.
This has been a quandary mainly in multinational states with territorially concentrated national minorities that already have a degree of self-government, such as Catalans, Québécois, Corsicans, and Scots. In these circumstances, David Haljan argues that the state should be conceived as founded on the principles of “associative constitutionalism,” in which the constitutional right of secession is implied in the original consensus that founded the state.54 Haljan draws support from the Canadian Supreme Court’s ruling in its Quebec secession reference of 1998. This determined, first, that the principles of Canada’s invisible constitution are those of federalism, democracy, constitutionalism, the rule of law, and respect for minorities and, second, that these principles indicate that “the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes.”55
Some constitutional scholars have suggested that in this case the Court performed the valuable service of channeling into legal form a dispute that might otherwise lead to the breakup of the state by more violent means.56 But it also strengthens the claim that the constitution’s values are not just in the text but implicit in the structure of society, and that there are no limits to the judiciary’s competence to identify basic values and determine the rights that derive from them. This trajectory has led to some recently adopted constitutions expressly including rights of secession.57 The struggle for the constitutional right of minority groups to secede from the state is a stark illustration of the ways in which political bonds of allegiance are stretched and how principles forged in the crucible of the nation-state are, under the extending influence of constitutionalism, evolving as self-standing principles of legitimate collective ordering. This evolving constitutional discourse is reinforced by developments in the arena of international law, an issue to which we now turn.