Secession, Right to Decide and the Constitutional Model of Militant Democracy

Abstract

Advocating democracy and the right to decide over forceful union in the Spanish and European contexts, this paper makes modest theoretical proposals to protect the right to decide and to self-government of sub-state nations or peoples. The peaceful solution of conflicts involving contested claims over territory and national sovereignty calls for a pluralist concept of democracy, recovering the centrality of self-determination as the self-assertion of a people, a political community that has been systematically denied the freedom to decide on its own political status and aspiration. Constitutional law based on popular sovereignty often neglects the question of the definition of the demos as the prefigured and axiomatic constituency. If the Constitution is further interpreted as precluding any claim to self-determination by a constituency, and any debate about that claim then an undemocratic model of militant constitutionalism ensues. That militant scheme is not so much about protecting democracy as it is about imposing a national model, a pre-defined demos. This contribution seeks to revisit the claim of sovereignty of the Catalan process and the constitutional doctrine of the Spanish judiciary precluding the Catalan Parliament from engaging in political debates on the right to decide, in relation to the issue of the militant democracy model