Ukraine

Crimean Secession and the Irrelevance of Ukraine's Constitution

Obama says voting to secede is unconstitutional. So what?

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Next Sunday the people of Crimea are scheduled to vote on whether to secede from Ukraine and become part of Russia. President Obama says the referendum is illegitimate because it violates the Ukrainian Constitution. But the president's respect for the Ukrainian constitution is highly selective, and that document's relevance is dubious in any case.

It is true that Ukraine's constitution does not allow Crimea's regional parliament to unilaterally hold a plebiscite on secession (even leaving aside the question of whether a free and fair vote can take place while Russian forces control the peninsula). But neither does the constitution allow the national parliament to peremptorily remove the president from office, as legislators purported to do with Viktor Yanukovych last month.

The constitution specifies an impeachment procedure, including appointment of an investigative commission, a two-thirds parliamentary vote to bring charges, a three-quarters vote to convict, and review by the Constitutional Court. Legislators did not follow that procedure. Instead they declared Yanukovych unable to perform his duties, a move authorized only if the incapacity is due to "health reasons."

Obama nevertheless recognizes the current regime as "the legitimate government of Ukraine" and declares, "We are well beyond the days when borders can be redrawn over the heads of democratic leaders." Yanukovych may be a corrupt thug, but he was democratically elected, and his removal was unconstitutional.

Does that matter? Maybe not. The Ukrainian Constitution, which replaced the Soviet-era version, was itself approved by legislators in 1996. What gave them the authority to do that?

If legitimacy is based on the consent of the governed, there is an obvious problem with any constitution approved by a less-than-unanimous vote of elected representatives. Even if we assume that each legislator inerrantly represents the will of his constituents, all of whom are of one mind, a minority clearly has not agreed to abide by what will henceforth be treated as the supreme law.

Imagine a club that includes only people who voluntarily join. If the members all agree to basic rules for the club's operation (including rules for changing the rules), no member can reasonably call a decision by the club illegitimate, as long as the rules are followed.

Not so with constitutions approved by a mere majority. The legislators who voted against the current Ukrainian Constitution did not approve it, and no doubt many citizens, including ethnic Russians in Crimea who would prefer to be part of Russia, would have voted no as well.

If Crimea's Russian majority approves secession, of course, they will also be overriding the will of a minority, including dissenting Russians as well as Tatars and ethnic Ukrainians. But when Obama says a vote cannot decide the region's fate because the Ukrainian Constitution forbids it, why should his argument carry any weight with people who never consented to that constitution?

Don't get me wrong. All constitutions—including our own, as Lysander Spooner pointed out—have similar legitimacy problems. They can nevertheless be useful as restraints on government power and protections against the tyranny of the majority. But it makes no sense to cite one of these documents as a reason to accept a particular government's dominion over a particular territory.

Obama also claims to be "standing up for the principle of state sovereignty." But that principle is little more than deference to the status quo, including the territorial claims of the most brutal and oppressive regimes on earth. And although such deference may help maintain order and discourage war, it tends to fall by the wayside when it proves inconvenient (in Serbia, Iraq, Libya, Afghanistan, Pakistan, and Yemen, for example).

In this case, Russia, which controlled Crimea from 1783 until Nikita Khrushchev arbitrarily assigned it to the Ukrainian Soviet Socialist Republic in 1954, could argue that reversing the transfer upholds the principle of state sovereignty, even as it respects democracy and the right to self-determination. We like all of those things, right?

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  1. If a constitution with over two centuries of acceptance can be willfully ignored, what hope does one not even old enough to drink have?

    1. I don’t know about ‘over two centuries’ of acceptance – there was that little incident about 150 years ago where some people disagreed about the rules.

      Imagine a club that includes only people who voluntarily join. If the members all agree to basic rules for the club’s operation (including rules for changing the rules), no member can reasonably call a decision by the club illegitimate, as long as the rules are followed.

      What if you decide you want to withdraw from the club and start your own club and the rest of the club tells you that there’s an unwritten rule that once you join the club you can never leave?

      1. Like I said, over centuries of acceptance. You quibble over a five year discongruity.

        1. The Five-Year Discongruity. Ah, yes, didn’t Ken Burns do a documentary on that?

          But some of us would argue that that five-year discongruity fundamentally changed the nature of the Constitution and the nature of the United States, that we no longer had a federal government with a divided sovereignty – we had a national government and a singular sovereign. And that we are rapidly approaching the point of having that sovereignty invested in a single office rather than 3 co-equal branches of government.

          1. You could argue that. But it doesn’t change the acceptance, nor the accumulated time thereof.

            1. Addendum – your commentary about the excesses of the executive actually backs up my initial thesis.

          2. Yeah maybe the South shouldn’t have started a war over keeping the privilege of owning human beings as chattel.

            1. Care to let me know when in history this ever happened?
              If you are referencing the unlawful Union invasion and overthrow of the Confederacy after a peaceful and 100% legal constitutionally protected secession from said Union, then you need to go back to the books again and re-read that part about who attacked whom first, then re-read the correspondence of Jefferson Davis and his opinions on slavery then you can come back here and apologize for pulling strawmen and allowing your ignorance to flow out of your fingertips

            2. Except Delaware, Kentucky and Maryland never seceded.

              1. Maryland didn’t secede because of a little issue with most of the state being garrisoned by Union troops due to the location of DC. Despite our current Northern aspirations (linked to our governor’s ambitions and an influx of New Yorkers, we were truly a “border” state in culture as well as geography. People forget that there were anti-Union riots in Baltimore early in the war (Wikipedia entry) and there are three monuments to the Confederacy in the city, the latest of which–the Lee and Jackson Monument–built in 1948.

                That’s why I always think it’s funny when people refer to Maryland as a northern state, or Marylanders as “Yankees”. These are clearly people who’ve never been to St. Mary’s County or aren’t familiar with the history of the state.

            3. If the Northerners hadn’t asserted State’s Rights over Federal law mandated return of runaway slaves, it wouldn’t have been a problem.

          3. The US Civil War is a sticky trap. It’s a done deal, there is no reason to discuss it. But proggies very much want to lure us into discussions of that because they can easily spin principled stances into TEH RACISM!!1!

          4. I would agree. I think the period surrounding the war between the USA and the CSA was, in the words of the great Greg Allman, where it all began.

      2. Thats called a gang

      3. The mafia?

  2. International agreements seem pretty irrelevant now too, such as the Budapest Memorandum on Security Assurances.

    Lesson to other emerging nations – nukes are better than a worthless piece of paper.

    http://en.wikipedia.org/wiki/B…..Assurances

    1. The Ukrainians forgot about the secret “FYTW” clause that is embedded in all constitutions.

    2. Knowing the US opted out of its treaty obligations to South Vietnam in 1975, I don’t think any serious person can claim the Budapest Memorandum is in any way more compelling.

    3. You and I remember Budapest very differently

  3. Obama citing constitutional law is laughable.

    1. It is consistent for him – ie, whatever advances his agenda.

    2. in the new Obama action figure, self-awareness will be sold separately.

      1. Ah i get it hes really an evil statist construct whom could not be made self aware because the original units kept exploding due to paradoxes

  4. Would the Crimean Tatars vote to be part of Russia, Ukraine, or neither?

    (By the same token, I can’t wait for the shitstorm when the Cree vote again to secede from Quebec.)

    1. How about all of Canada vote to secede from Quebec, leaving the Francophones with the Canadian national debt.

      1. The English would gladly vote to secede from Scotland. I think most of the U.S. would vote to secede from New York and California.

        We have been going at this succession thing all backwards.

        1. this succession thing

          Do you mean elections? I had been wondering if we were doing it wrong.

        2. I think most of NY would vote to secede from the trash hole city island and greater Albany area.
          Don’t lump the woodbillies in with those citiots Liberty is alive and well in Oswego county

        3. The Scots have a secession referendum on the ballot in the next election. Should be interesting.

          1. If I didn’t think they’d go even further left than the UK I’d be tempted to call up my extended family and emigrate. It’d be nice to not be the palest, hairiest person in a crowd at the beach for once.

  5. I think The President (PBUH) is saying, Let me be clear: this constitution is NOT 100 years old or something, was NOT created by old, white slaveholders (so far as we know), and abiding by it furthers my wants. Therefore, it should be followed.

    If you believe otherwise you’re a do-nothing, obstructionist “opponent” of Progresss?.

  6. They can nevertheless be useful as restraints on government power and protections against the tyranny of the majority.

    That really is the only reason to have a constitution.

    1. “That really is the only reason to have a constitution.”

      Yeah, and it worked so well.

      1. Is your handle an An-Cap reference?

  7. OT: Republican Jolly wins Fla. congressional race

    I’ll be unable to participate in the AM festivities today, but I trust the regulars will pummel PB mercilessly about its prediction.

    1. A Jolly Republican? Unpossible, we’re a dour lot.

      1. LIBBBBBERTARIAN SPOILERZ!!!

        Oh, wait…

  8. Ukraine actually has two Constitutions, the 1996 strong president constitution and the 2004 weak president constitution and they have gone back and forth several times

    1. Ukraine actually has two Constitutions

      Our robed overlords can give us a new one any time we need it, so they are lagging

  9. President Obama says the referendum is illegitimate because it violates the Ukrainian Constitution.

    I was wondering which constitution he is a scholar of, because he obviously doesn’t know dick about the one he swore to uphold.

  10. There’s no sugarcoating it – some people have different opinions from President Obama about this and other matters.

    1. Only because they are racist!

      /prog derp

  11. You wouldn’t trade your cow for magic beans, but you’d trade your liberty for a magic piece of paper.

    1. I never signed no stinkin’ paper!

    2. Are they Magic GMO beans that grow cows?

    3. The social contract is written down?

      1. ….and it has your baby footprints on it, so YOU’RE IN.

        1. Did I consented?

          1. Live up to your end of the deal that you agreed to, hundreds of years before your existence!

    4. Paper is magic, whether it has “Constitution,” “Treaty,” or “Marriage License” written across the top.

      1. But your paper is just blank? how does it work?

    5. Probably one of the best pieces of paper written. Unfortunately, it’s only magic so long as it is enforced, in entirety, as written. That pretty much ended after about 70 years, and was out the door after a shy 150.

      Divorce is always an option, and so should succession be.

  12. I for one am happy to see that Obama’s “pushing the reset button” with Russia is working out just about as well as the Obamacare rollout.

    1. It was reset to 1965.

  13. “Russians invaded my country and all I got is this lousy OSCE resolution.”

  14. But neither does the constitution allow the national parliament to peremptorily remove the president from office, as legislators purported to do with Viktor Yanukovych last month.

    If Viktor hadn’t basically went AWOL this probably would have developed a lot differently.

  15. Crimea belongs to Russia. There is nothing the West will (or can do) to change that.

    1. I don’t think nation-states own a damn thing

      1. Truest statement of the day

      2. They are slavers, so you can say they own people to the same extent to which thieves can own something they stole.

  16. (even leaving aside the question of whether a free and fair vote can take place while Russian forces control the peninsula)

    Worked for Hawaii.

    1. zing!

  17. Social contract? I didn’t sign shit!

    1. Agreed, If I have ever consented to being governed I’m pretty sure I’d remember it

  18. they declared Yanukovych unable to perform his duties, a move authorized only if the incapacity is due to “health reasons.”

    Impending lead poisoning, perhaps?

  19. But the president’s respect for the Ukrainian constitution is highly selective,

    Why should 0bama be any different with Ukraine’s constitution than he is with ours?

  20. So = the US has no justifiable reason to start pretending to adjudicate Ukrainian internal political issues. I think that would be obvious.

    Is there a broader point about “and this is why Non-Intervention”? Or is that just to be assumed? isn’t Obama just doing so much “Jawboning” for the sake of TV cameras, and to maintain some kind of visible role here? Words aside, its pretty clear he’s not doing diddly squat.

    Ukrainian Constitution aside… the piece of paper that seems most relevant to this whole issue is the Budapest Memo thing.

    http://www.cfr.org/arms-contro…..994/p32484

    It would provide US & UK some ‘international law’-cover if they chose to take action.

    I think the fact that this thing – in my knowledge – has never been mentioned once by Obama admin figures in public gives an indication of the unlikeliness of that ever happening. I’ve also noted that proggies seem pretty desperate to play down any mention of the thing as “ITS NOT A TREATY!” because they are aware that it could be potentially used by ‘interventionists’ to demand Obama ‘take action!’

    Which isn’t happening either, AFAIK. Seems like Jawboning all around.

  21. If legitimacy is based on the consent of the governed, there is an obvious problem with any constitution approved by a less-than-unanimous vote of elected representatives

    That’s the fallacy of democracy and government in general. “Consent of the governed” can only accurately describe the extent to which the peasants don’t storm the manor with pitchforks. You cannot argue that the term discusses actual consent unless you’re redefining the word. Sugar coated euphemisms are the basis of statism.

    1. My favorite is the “social contract”. Where is a copy of that with my signature on it? And what exactly does it say?

      1. (sorry, i was reading the posts from the bottom up and missed all the previous social contract comment 🙁

  22. If Crimea’s Russian majority approves secession, of course, they will also be overriding the will of a minority, including dissenting Russians as well as Tatars and ethnic Ukrainians.

    Of course, with Russian troops all over the ground, it’s impossible to tell what Crimea’s Russian majority actually thinks. Those opposed to joining Russia aren’t likely to tempt fate (or the FSB) by openly campaigning against it.

    There need to be international election monitors in place, otherwise there is absolutely no reason for anyone to believe that the referendum results weren’t fixed.

    If Russia annexes Crimea based on a rigged referendum held under Russian occupation, then doing so will have zero international legitimacy.

    1. “If Russia annexes Crimea based on a rigged referendum held under Russian occupation, then doing so will have zero international legitimacy.”

      Yet the current Ukrainian regime has inernational legitimacy.

      international legitimacy is an oxymoron.

  23. President Obama says the referendum is illegitimate because it violates the Ukrainian Constitution.

    The Constitution is not a suicide pact.

  24. Crimea will be run by whover has the guts to run it, in this case, Russia.
    A new Ukranian gov’t installed by violent coup is instatly recognized as legit by Obama, the EU and the UN.
    These facts alone are a strong indicator that Russia is doing the right thing.

    1. The notion of “right” is bullcrap. It’s just words. Exercise of power is what matter in nature and humans aren’t all that removed from nature.

  25. Obama’s foreign policy mantra is “I’m full of shit. But idiots love my shit.”

    People will always exercise power and Obama flapping his gums accomplishes nothing. We need to decide if we’re gonna be a power in the future. If we are, we’ll need a government-free economy and the willingness and ability to kick ass when necessary.

  26. Thats amazing..Start working at home with Google! Just work for few hours and have more time with friends and family. I earn up to $500 per week. It’s a great work at home opportunity. I can’t believe how easy it was once I tried it out. http://www.CapitalPosts.com

  27. President Obama says the referendum is illegitimate because it violates the Ukrainian Constitution.

    Irrelevant. Succession is always governed by the “Winners make the rules” law.

    The U.S. is independent of Britain because Cornwallis surrendered to Washington. The Confederacy is still part of the U.S. because Lee surrendered to Grant. All else is quibbling.

  28. “Obama also claims to be “standing up for the principle of state sovereignty.”. But that principle is little more than deference to the status quo, including the territorial claims of the most brutal and oppressive regimes on earth. ”
    And in that he is highly selective. How much has he stood up for the sovereignty of Iran?

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