Constitutionalism and democracy go together like chocolate and peanut butter, right? Wrong ― as events proved this week in Crimea.
Ukraine’s constitution doesn’t allow for the secession of Crimea and its incorporation into Russia. Yet 96 percent of voting Crimeans chose secession, raising the question of why the constitution should even be followed. Does anyone seriously doubt that the overwhelming majority of Crimeans welcome integration into Russia? The democratic impulse contradicts the constitution.
The contradiction between constitutional demands and democratic impulses in Crimea is particularly extreme, but the phenomenon isn’t all that uncommon. Citizens of the Confederate States of America ― that is, white people ― strongly favored secession from the Union in 1860-61. They got together in secession conventions that were the mirror image of the state ratification conventions of 1787-88, and were the epitome of democratic action in that pre-referendum era. Of course, the Southern states claimed their secession was consistent with the U.S. Constitution ― as Crimea similarly asserts that the Ukrainian constitution allows secession. In neither case was the constitutional argument terribly strong. But the will of the people cut against it both times.
The nature of the contradiction is especially important and complicated because a modern constitution is in fact supposed to express the will of the people in the same way that a referendum does. Indeed, the act of making a constitution is supposed to have special democratic resonance, as the people bind themselves to an agreement that they themselves pledge not to violate. Rights embedded in the constitution are supposed to be rights that the democratically elected legislature and executive cannot break.
According to staunch constitutionalists, therefore, when the democratic will comes into contradiction with a democratically enacted constitution, the constitution is supposed to win. The Crimean vote, on this theory, should be ignored as a matter of law, because the Ukrainian constitution trumps it.
Similarly, a committed constitutionalist would believe that the movement that gave the Egyptian army cover to remove President Mohamed Mursi in July wrongfully violated the Egyptian constitution. It shouldn’t matter that the constitution was poorly constructed, so long as it had been approved by democratically legitimate process, as it arguably was. It shouldn’t even matter if the majority of Egyptian public wanted Mursi out or supported the military coup: The people should have followed the constitutional process.
The trouble with these kinds of constitutionalist arguments is that they pretend it is easy to define who counts as “the people.” Ask a pro-Russian Crimean and she’ll tell you that her voice didn’t count in creating the Ukrainian constitution, because the majority of Ukrainians didn’t share her views. More bluntly, the Crimeans in their referendum were saying that they didn’t want to belong to the Ukrainian “people” in the first place.
Students of democratic constitutionalism sometimes call this the “denominator problem.” Suppose you want a national referendum. The people voting yes add up to the numerator. But who counts in the denominator that defines national membership? Depending on how you compute national membership, the results will be different. Most Ukrainians would not vote for Crimea to be independent, but by changing the denominator to Crimeans alone, an outcome favoring secession was assured. This is the situation of many ethnic minorities who seek autonomy or independence, such as Iraqi Kurdistan or Catalonia.
There is no easy constitutional answer to the denominator problem ― which is why such disputes generally get resolved in the realm of politics and force, not constitutional theory. Without the Russian troops, Crimea would not be able to define its population as the relevant denominator for a vote of independence. The Kurdish leadership in Iraq could potentially use force to accomplish independence, but has judged (wisely) that it can gain more by maintaining quasi-autonomy within the Iraqi constitutional structure. Catalonia is an uncertain case, but no one doubts that the government of Spain will have the final say on allowing independence ― because it has the guns and the troops.
The reality that force and politics, not law, resolve such problems is an embarrassment for democracy and constitutionalism alike. There can be no lasting democracy without at least some commitment to an orderly constitutional process. And there can be no legitimate constitutionalism in the contemporary world without democracy. Yet when the two come into conflict, neither has the capacity to resolve the contradiction. Enter the militias, the gunmen and the generals.
By Noah Feldman
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently “Cool War: The Future of Global Competition.” ― Ed.