Prof. Levinson correctly points out the problem of secession with federalist forms of government when a state believes that either another state or the federal government itself has violated the constitution. However, the legal (and often practical) answer is either to explicitly provide for unilateral secession in the constitution or to provide for a supreme court to settle interstate or state-federal government conflicts. In the case of Iraq, a supreme court would be the preferable option because of Turkish concerns over and independent Kurdistan.
Turning to the U.S. . . . . Although the U.S. Constitution may be -- strictly speaking -- silent on the issue of secession (as Prof. Levinson correctly points out in his FINDLAW artticle), the southern states did violate the Constitution by seceding because they were parties to the Constitution (a treaty). Pacta sunt servanda. Any disagreements with the federal government (or any northern states) were to be resolved by the U.S. Supreme Court because the Supreme Court (like the federal courts under the Articles of Confederation) was the customary mechanism for resolving conflicts between states-parties to treaties. Arguable breaches of the Constitution by the federal government -- an otherwise lawful cause for secession -- were to be remedied by using a Supreme Court to decide whether there had indeed been a breach and to order the appropriate remedy. The southern states could not lawfully secede without violating their customary international legal obligation to comply with their treaty (i.e., constitutional) obligations that included appeals to the Supreme Court to remedy arguable constitutional violations by the federal government (or the northern states). Customary international law required that states seek peaceful means (specifically, arbitration) to resolving their conflicts.
Of course, the southern states did not understand this. When they did secede and ratify their own constitution (remarkably similar to the U.S. Constitution) that provided for the establishment of a Confederate Supreme Court, they never implemented this provision because they subsequently recognized that a Supreme Court could erode states' rights. As a result, there was never any final authority to determine whether the Confederate Constitution was being violated by Jefferson Davis or other southern states, and there were calls for state secession from the Confederacy.
Francisco Forrest Martin
----- Original Message -----From: Sanford LevinsonSent: 10/1/2003 12:13:47 PMSubject: Re: The Iraqi constitutional conventionI'm delighted to include federalism, but the question raised by federalism is its limits, i.e., is the possibility of secession addressed. I take the liberty of including a link to a Findlaw essay discussing this question in the context of Iraq.
“SECESSION AND THE FUTURE OF IRAQ: Should the Kurds, and Others, Be Able to Withdraw to Create Their Own Nations? April 17, 2003 http://writ.news.findlaw.com/commentary/20030417_levinson.html
sandy
At 08:11 PM 9/30/2003, you wrote:
absent from the list is
9) federalism
Sanford Levinson wrote:
A news story today indicates that some Iraqis are suggesting that it will
take up to a year to negotiate a new constitution, whereas the
Administration seems to suggest that six months will be enough. For
all of
our ostensible expertise on constitutional issues, do we, as American
constitutional lawyers (who probably, as an empirical matter, have not
engaged in the close study of any non-American constitutional system),
have
anything relevant to say about the optimal amount of time a remarkably
divided, dysfunctional society like Iraq should be expected to take to
draft a new constitution? And, of course, the more volatile question is
whether we, as American constitutional lawyers, have anything relevant to
say about what the new constitution should say. Riding several of my own
hobbyhorses, I'd be interested in knowing how many people on the list
would
advise (or even insist that) the Iraqis adopt the following features
of our
constitution:
1) Article V
2) life tenure for judges (who will be presumed to have the power of
judicial review)
3) the electoral college
4) bicameralism plus a presidential veto
5) a right to bear arms
6) capital punishment as a constitutionally legitimate punishment (see
Amendments V, XIV)
7) the prohibition of an established religion
8) toleration of seditious and/or religious/ethnic "hate speech"
sandy
