Secession

In one line

No constitution on this syllabus permits a unit to leave unilaterally, and Canada alone has held that a clear expression of a clear majority creates a duty to negotiate.

In the wording a student can write in an exam: secession is the withdrawal of a unit from a federation; no federation on this syllabus confers a right of unilateral secession, and the constitutional questions are whether the union is legally indissoluble, whether a unit's expressed wish creates any obligation, and who decides.

The American answer: indissoluble

Texas v. White, 74 U.S. (7 Wall.) 700 (1869), settled it after a civil war. Texas sued to recover United States bonds sold by its Confederate-era government, and the suit could be maintained only if Texas had remained a State throughout.

Chase CJ held that it had. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. Admission was not a compact that could be dissolved but the incorporation of a new member into the political body, and it was final. The ordinance of secession and the acts of the Confederate government were void.

Two things follow. The Union is legally perpetual. And the States are equally indestructible, which is why Article IV section 3 forbids the formation of a new State within the jurisdiction of another, or the junction of two, without the consent of the legislatures concerned.

The Canadian answer: no right, but a duty to negotiate

Reference re Secession of Quebec, [1998] 2 SCR 217, decided on 20 August 1998, answered three questions referred by the Governor in Council after the 1995 Quebec referendum.

The Court held unanimously that Quebec has no right to secede unilaterally under the Constitution of Canada or under international law. Then it went further than the American answer.

It reasoned from four unwritten constitutional principles: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Democracy required that a clear expression by a clear majority of Quebecers of a will to secede be given effect; constitutionalism and the rule of law required that it be given effect through the constitutional amending procedure and not unilaterally; federalism and respect for minorities required that the interests of the other participants and of minorities be considered.

The synthesis was a constitutional duty to negotiate. A clear expression of a clear majority on a clear question would give rise to an obligation on all parties to Confederation to negotiate constitutional changes to respond to it, with no party entitled to insist on its own position.

And the Court left the operative terms to the political branches: it would be for the political actors to determine what constitutes a clear majority on a clear question in the circumstances of any future referendum.