I think that this discussion of secession and self-rule raises more questions than it answers:
1. How do we tell the difference between a "people" (which, if we agree with Prof. Martin, has at least a presumptive right to self-rule), and a mere collection of individuals without a distinct national identity (which doesn't). Are the Basques of Spain a "people", the Quebecois? In the case of the US, does this mean that states with ethnically distinctive populations (e.g. - Hawaii) have greater rights to secede than those whose populations are more similar to the national average (leaving aside the possibility that the constitution is legally indissoluble)? 2. I'm not sure that it's so clear that states have no legal right to secede under the COnstitution, even if the federal govt. violates it? Several of the Founding Fathers, including Jefferson and Madison in the Kentucky Resolution came close to endorsing a right of secession. So did some of their Federalist political opponents who threatened to secede at the 1814 Hartford Convention. Historian Kenneth Stampp argues that an anti-secession interpretation of the Constitution was not even invented until sometime in the 1830s or 40s. As a matter of strict logic, setting history aside, Prof. Martin's approach seems to leave dissenting states no recourse even in the face of very grave constitutional violations by the federal government (True, they could use the political process, but if they had sufficient political power to do that, it is unlikely that the the feds would have overrode their preferences in the first place). To clarify, I am NOT suggesting that the southern states were justified in seceding (I think that they weren't), or even that states have a right to secede today (though I do think such a right may exist in extreme circumstances), but I would argue that the absence of such a right hasn't been proven. Ilya Somin On Sun, 8 Jun 2003, Francisco Martin wrote: > Prof. Maule asks: > > >[A]re other nations permitted, under > > international law, to stop the Iraqi people (or some specific "people" > > of Iraq (e.g., Kurds)) from splitting off into a separate nation? > > If there were no pre-exisiting legal obligation holding that the Kurds > could not, I do not think that there is any international law preventing > the Kurds from establishing a separate independent state. Indeed, the > right to self-determination under international law allows this. In the > case of the U.S., the southern states legally were not allowed to secede > because they (and their respective peoples) had agreed under the > Constitution to be part of the Union. The secession of the southern states > violated their treaty/Constitutional obligations -- also a violation of the > law of nations. It did not matter if the federal government had violated > the Constitution (an argument made by some states' right advocates) because > the Constitution was a federal treaty in the sense of a foedus from which > no state can withdraw. Only by the terms of the Constitution -- viz., an > amendment allowing states to withdraw from the Union -- could the states > have withdrawn. > > Francisco Forrest Martin >
