A More Perfect Union: Secession, Federalism, and Democracy in the Words and Actions of Lincoln

Authored by: William Mathie

The Ashgate Research Companion to Federalism

Print publication date:  August  2009
Online publication date:  April  2016

Print ISBN: 9780754671312
eBook ISBN: 9781315612966
Adobe ISBN: 9781317043454

10.4324/9781315612966.ch15

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Abstract

Does federalism entail the right of secession? Might it not even define federal systems of government that their members have a qualified – or unqualified – right to secede? In 1996 the Government of Canada asked Canada’s Supreme Court whether the Province of Quebec – its “National Assembly, legislature or government” – could unilaterally effect the secession of Quebec from Canada by virtue of the Canadian Constitution or international law, and if this might be justified in one but not the other of these ways, which would govern the case. The Court replied (in 1998) that even if a clear majority of those voting in a referendum on a clearly stated question approved secession, this would not in itself authorize the province to secede unilaterally (Reference re Secession of Quebec, 2 S.C.R. 217). On the other hand, the Court also held that this would authorize the province to proceed towards that goal through “principled” negotiations with the government and other provinces of Canada and that the other provinces and federal government “would [in this situation] have no basis to deny the right of Quebec to pursue secession … so long as in doing so, Quebec respect[ed] the right of others.” In the course of delivering its opinion, the Court added that it must be left to the political actors involved, and not the Court, to decide what was or was not a clear question and what would constitute a clear majority, and that the Court would play no role in supervising the negotiations through which secession might be effected. If the secession of Quebec cannot be effected by the unilateral action of its government, it may be brought about through negotiations that reconcile “the various rights and obligations” of “two legitimate majorities, namely the majority of the Province of Quebec and that of Canada as a whole.” The Court has in this way identified a process to which Quebec and the federal and other provincial governments would become obligated by a clear vote for secession in Quebec, what it calls “principled” negotiations. Or we might say that the Court has identified what it deems a necessary condition of secession by Quebec. But is that condition also sufficient? As the Court acknowledges, there can be no guarantee in advance that those negotiations would be successful, but the Court does not tell us what “successful” means in this case. Does it mean agreement by all of the parties engaged in those negotiations to secession and to the terms on which it is to occur? Or what one or other party to the negotiations may plausibly describe to members of their own constituency as a serious effort to negotiate? The Court does not say. It does indicate that it will not answer this question even if it should later be asked of the Court. The Court, we may add, did not find its response to the questions the government had posed it within the text of the Canadian Constitution but within its own wider understanding of the several principles implicit in the Canadian Constitution including democracy, federalism, the rule of law, and the rights of minorities.

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