2 Rights of the state citizens
Section 2.1 grants confederate citizenship to state citizens.
This section is the equivalent of the Swiss constitution's Art. 43, first subsection.
The U.S. fourteenth amendment grants state citizenship to U.S. citizens, but strictly speaking, not vice versa. In the U.S. naturalization is also strictly federal (I.8.4), while in Switzerland it is partially federal and partially cantonal (Art. 44).
With the adoption of the Maastricht agreement similar Europe-wide rules will apply to the European Community.
2.2 Democratic government
The purpose of section 2.2 is to ensure that state government rests on the consent of those governed.
This section is the equivalent of the Swiss' Art. 6, which among other things, guarantees that cantonal constitutions are adopted by the people, and may be amended by the people.
The Treaty of Rome does not ensure popular sovereignty in member countries, and most member countries do in fact leave ultimate power in their legislatures.
The U.S. Constitution guarantees only republican, as opposed to monarchical, state governments. Republican in this context, also means representative as opposed to direct democracy:
"....in a democracy, the people meet and exercise the government in person: in a republic, they assemble and administer it by their representatives and agents."
James Madison, (The Federalist Papers, No 14 An Objection Drawn from the Extent of Country Answered ("Representative Republics and Direct Democracies"))
2.3 Freedom of movement
Section 2.3 protects the free exit of citizens and property of any kind from any state and thus also from the Confederation as a whole. It protects both peaceful trade and the rights of minorities by allaying fears of confiscation of property upon emigration or other obstacles to emigration.
It does not restrain the individual state's powers to tax or disallow imports on the grounds of health, safety or any other consideration.
Unlike the U.S. interstate commerce clause (I.8.3) or the European Community treaties it protects the interests of the citizens both in their individual capacity, as when they want to emigrate, and in their group capacity, as when a state wants to keep higher health and safety standards than the usual norm. (My proposal does give individual states the right to restrain imports.)
As for safety and inconvenience concerns related to transit, these will primarily be determined by confederate authorities in their capacity as impartial umpires.
Subsection 2.3.3 provides a procedure that allows individuals the right to take with them real estate.
This mechanism allows for peaceful resolution of minor border adjustments and enhances competition among the states. If a state consistently fails to give its citizens what they want, it will start losing population and territory along the perimeter as people decide to become part of neighboring states. Competition will be most intense where language and cultural barriers are few, i.e. where current state borders do not coincide with ethnic borders.
2.4 Privileges and immunities
Section 2.4 extends the previous section by prohibiting the discrimination against citizens from other states within the Confederation. The first sentence is equal to the U.S. subsection IV.2.1.
If one state has more lenient immigration policies than other states, the rights of naturalized citizens to settle in all parts of the Confederation may be restricted.
Section 2.5 gives the people themselves the right to determine which state they want to be part of, or whether they want to erect a new state. It serves the dual purpose of protecting minorities by enabling them to erect their own states, and enhances competition among state governments by allowing for the peaceful erection of new competitors (lowering barriers to entry).
A delimitation initiative has three important characteristics:
The proposed model, rests on the principle of devolved popular sovereignty. The local population, rather than a central authority, has the right to initiate the erection of a new state. No authority, whether state or confederate legally may prevent a vote from taking place. The Confederation even have an express duty to make sure that the Constitutional right to self-determination is upheld. The voting region is also defined by the initiative itself. This prevents gerrymandering (manipulation of borders) to achieve a specific result. Also since the initiative is self-defining it is likely to result in borders that coincides with the geographical distribution of minorities or ethnic groups.
The proposed model ensures that all borders and governments have a genuine popular mandate.
Establishing new borders in detail
Subsection 2.5.2 specifies that the borders of the proposed new state is to be set directly by the initiative itself. This provides a limited self-adjusting mechanism. If the sponsors are too ambitious and include a very large area and significant minority populations, they will not be able to get enough votes to have the new state erected. On the other hand if the territory of the proposed new state is too small, significant populations that want to be part of the new state may not be included.
Subsection 2.5.7 complements the previous subsection by providing a mechanism for more accurate delineation. Citizens/Owners that have been included in the new state against their will, may retain their previous affiliations. Those citizens that have not been incorporated into the new state, but would like to become part of the new state may employ 2.3.3 to switch the other way.
Subsection 2.5.7 also prevents the use of state erection as a mechanism for confiscating property. In the absence of an individual's right to retain his previous citizen and territorial affiliation, any two neighbors would be able to team up to erect a new state that included a third neighbor, and then upon erection, confiscate his property and divide the loot between them.
In the special case of residential property where the residents are not owners, the constitution would allow the expropriation of such property by the new state. However, in this case the owner's compensation would be determined by a confederate court, as the owner would be an out of state citizen.
The clause on self-determination as well as the freedom of movement clause, does, however, allow for the erection of enclaves and non-contiguous states. This inconvenience is a price one has to pay for a just mechanism.
However, the problems with cost shouldn't be exaggerated. It falls primarily on the citizens of the newly erected state (the beneficiaries of the whole arrangement), and it is a function of their own free choice. If a proposal for erecting a new state contains a non-contiguous arrangement, the voters may take these possible added costs and inconveniences into account in their decision. Similarly, the clause on "freedom of movement" gives the "receiving" state the right to refuse a particular territory.
Self-determination and expropriation
Clearly in some cases, self-determination, may also be seen as a means of avoiding expropriation. Again there is a dynamic equilibrium at work. The property owner will have to weigh the relative merits of each state's compensation laws, the risk of having his property expropriated and the inconveniences and costs related to living in an enclave or having his property become part of a neighboring state. When the state has already decided to expropriate, it is too late. The real estate owner will have to accept whatever the (state) law gives him, unless he is an out of state citizen, and the compensation is determined by confederate law or by state treaty. (See also Confederate powers, the right to enforce and defend the constitution section 3.5)
Secession and representative bodies
Even in democracies, secession has generally been treated with suspicion and hostility. When the borough of Staten Island, by an 82% vote of its citizens, wants to secede from New York City the Mayor's first comment is that he "firmly opposes the secession and doesn't intend to sit by and watch the process passively". (Source: "New York's Staten Island Studies Seceding From City", Wall Street Journal (Europe), November 9. 1990)
The Mayor's reactions are precisely the same as, and in principle equally foreign to the well-being of the people as those encountered by the Turkish and Russian speaking minorities in Moldavia, by the Moldavians themselves with respect to the central government in Moscow, by the peoples of Estonia, Latvia and Lithuania, by the people of the Kosovo region of Yugoslavia etc. etc. etc.
The primary reason for "the establishment's"
opposition to self-determination is presumably that it threatens the very basis
of that established authority's raison d'etre and power. Even in a
representative democracy like New York City, secession undermines the powers of
the Mayor's office and of the city legislature. The right to secede involves a
very significant transfer of authority from the establishment back to
ordinary people. It reduces local
authorities to competitive units instead of local monopolies. This is also why
secession should never be a decision of a representative body. It should be
decided directly by the people that want to secede.
2.6 General comments on the constitution's chapter 2
All the rights of the citizens as enumerated in chapter 2 are procedural rights. Procedural rights are rights that say something about by whom or how an issue is to be decided. Ideally they don't say anything about the decisions themselves.
The reasons for concentrating on these rights are twofold. First, by limiting the number of, and simplifying the rights, we also limit the opportunities for the Confederation to muscle into state affairs by using these rights as a pretext. Secondly, even if there is a general agreement on many human rights, particular interpretations may differ, and this may cause rather than reduce conflicts between states.
The U.S. Constitution, for instance, has a clause prohibiting cruel and unusual punishment. But what constitutes cruel and unusual punishment? Does it or doesn't it include capital punishment? This is a typical issue where cultural factors can make it hard for even sensible people to agree. The citizens of some countries may believe that capital punishment should be completely abolished, while others may feel there is a place for capital punishment when the country is at war, or as a punishment for particularly hideous crimes.
The issue of abortion may be another typical example of a legal field where centralized decisions may cause rather than alleviate conflicts. In Roe v. Wade (Smith, E.C., page 141) the United States Supreme Court voided state laws that made abortions criminal offenses. The interpretation rested on the "due process clause" of the American Constitution (14th Amendment) which is assumed to protect the right to privacy which again is assumed to include the right to abortion. There is still considerable disagreement as to whether the protection of privacy and the fourteenth amendment which dates from 1866 properly has anything to do with permitting abortion. These arguments carries even more weight in the context of the specific requirements that the Court has laid down for abortion legislation.
These issues are important also in a European context, - surely, abortion views differ greatly between let's say secular Sweden and catholic Poland. If the European family is to expand to include islamic Turkey or islamic parts of the former Soviet Union, further potential for conflict exists. Within such an expanded Europe, fundamental islamic or other national or religious groups cannot be ruled out. In fact, any sensible model has to rule them in and find a method of accommodation. The lesson to be learned from a European point of view, is that extending the scope of the exclusive central judicial powers tends to increase the number and severity of these kind of conflicts and encourages creative judicial interpretation at the center. Perhaps the U.S. Supreme Court would have done the country a service by leaving these kind of issues to the political authorities of the individual states, so that they could have been resolved according to local preferences.
By delegating these decisions to the individual states, conflicts may not disappear, but at least they will be ameliorated by differing interpretations related to local norms.
Copyright © 1991-2003 John F. Knutsen
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