Right to a Referendum, or Duty to Deliberate? Rethinking Normative Entitlements to Secession

When should groups within a state be owed a process, such as a referendum, that can enable their secession or greater internal autonomy? Much of the prior normative literature has overlooked the constitutional theory context of this question. Autonomy movements raise a “constitutional legitimacy crisis” in which the core question is what a constitution’s normative foundations are or should be. Firm answers remain elusive. The parties tend to make selective and circular (“normative bootstrapping”) claims, which are neither sound nor practically persuasive to the other parties to a dispute. Thus this article, firstly, relies on the constitutional legitimacy crisis lens to explain why disputes over autonomy movements are largely intractable under existing approaches; and, secondly, identifies a promising species of solution to the problem. Departing from both “primary right” and “remedial right only” theories, the article endorses a duty to deliberate. This duty relies on deliberative democratic procedures (e.g., “mini-publics,” “deliberative referendums,” and “deliberative negotiation”), applied to autonomy movements’ various phases, to decide how and whether autonomy movements should progress. Such an approach may offer a sounder and more practically effective approach to resolving autonomy-related constitutional legitimacy crises.