Democracy and Constitutional Legitimacy in Canada/Québec and Spain/Catalonia

In the 1998 Secession Reference, the Supreme Court of Canada opined that while a majority vote in favour of the independence of Québec would give rise to a duty to negotiate eventual separation, only the outcome of a negotiation, not the vote itself, could legitimate secession. Similar questions regarding the legitimacy of a unilateral declaration of independence in the aftermath of a vote in favour of secession surrounded last year’s independence referendum in Catalonia. There too, the vote alone seems to have been found insufficient to justify the creation of a new constitutional order, although it arguably undermined the legitimacy of the old one. These examples show that democracy―or at least majoritarianism―may well be a force with greater destructive than constructive potential, when it comes to constitutional legitimacy. It can call the legitimacy of an existing constitution into question, but something more is necessary for a new constitution to be legitimated.