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Catalonia: Secession, Constitution, and Liberty

Catalonia has entered a critical phase in its attempt to secede from Spain, a process initiated by the regional government and parliament back in 2013. Secession in a Western European country in the 21st century necessarily draws attention. People all over the world feel that type of sympathy often induced by revolutionary movements in distant countries. But this is not a repetition of what we saw in the 18th, 19th, or 20th centuries. This is more complex.

This is about freedom—specifically, the freedom of individuals, which is protected by the rule of law, the maximum expression of which is the Constitution. Hence, we have to ask ourselves three questions:

  • Are the freedoms and individual rights of the people of Catalonia currently being oppressed?
  • As a general rule, do all secessions advance the cause of individual freedom?
  • In the specific case of Catalonia, would secession bring more freedom to its people?

First, as to whether the regional government is defending the people of Catalonia against a despotic assault on their individual freedoms, we would want to know if there any semblance here of a revolutionary movement or a colony struggling against an external power. The answer: No, Catalonia has been a part of Spain since its inception many centuries ago. Spain never invaded or annexed Catalonia by force.

Spain’s most recent constitution (1978) is relevant here. It put an end to Francisco Franco’s authoritarian regime; recognized and guaranteed the rights and freedoms of individual citizens; organized public power on the basis of consent expressed via free elections; and divided state powers by means of checks and balances. In addition to all this, it created a system of autonomous regions, chief among them Catalonia.

Thus, the modern geopolitical entity known as Catalonia emanated from the Constitution of 1978. Since 1979, it has had its own autonomous government, known as the Generalitat, as well as its own parliament and other attributes established by the Constitution and the Statute of Autonomy of Catalonia. These all make for a more powerful regime than those of many federal states in other countries. Say what you will about Franco, he has been dead for over 40 years and nothing remains of his dictatorship. To use Franco as a means of explaining current events or as an excuse for destroying the Constitution is deeply disingenuous.

There are numerous confusions about Catalonia. The Spanish government has not been adept at clarifying the situation, although a few think tanks have published explanatory pieces.

For example, Catalans routinely display their flag and practice their local customs. The Catalan language, which has co-official status with Spanish, is in normal use everywhere. The exception, as a matter of fact, is anything controlled or influenced by the regional government, in which case only Catalan can be used. By contrast, Spanish sees limited use in official, educational, and cultural institutions.

In the last 37 years, the Catalans have held 11 free elections to choose their regional parliament. They have always elected Catalan nationalist parties, which have either ruled by absolute majority or in coalition with socialist parties. The ever-expanding regional claim to power has been constant, climaxing in a formal request for secession in 2013. Catalan rulers characterized the last election (in 2015) as a plebiscite on secession. Nevertheless, parties favoring secession received the support of only 35 percent of citizens entitled to vote.

The Generalitat has a lot of power when it comes to taxation and public spending. It receives 50 percent of the personal income taxes paid by residents of Catalonia, 50 percent of the value added tax revenues, 100 percent of the inheritance tax revenues, all on top of substantial percentages of the revenues from various excise taxes. In sum, the regional government of Catalonia draws from its citizens more than $23 billion per year, which it spends on whatever the Generalitat decides.

But that is not enough to pay for the deficit spending of the Catalan government. In recent years, Spaniards of other autonomous regions have subsidized the Catalan government to the tune of more than $75 billion. The rest of Spain does not live at the expense of Catalonia; it is the Catalan government that siphons off the money of the rest of Spain.

For the past 37 years, the Catalan government has had nearly absolute control over education, public and private. Successive Catalan nationalist governments have used this control to create future Catalan nationalists. Two generations of Catalans have now been educated in a school system in which it is forbidden to teach in Spanish. Private and public schools offer Spanish only as a subject, on a par with the study of English or French. It remains strictly forbidden to use Spanish as the primary means of instruction in all other classrooms. On this point, the Catalan government has always been unyielding.

Seven public television channels and four public radio stations in Catalonia receive roughly $300 million a year from the Catalan government. They are basically tools for promoting the secessionist movement. Many smaller media outlets with Catalan nationalist agendas also receive subsidies, thereby amplifying their influence.

Indeed, many have been saying for years that freedom of expression in Catalonia is limited. A regional law imposes fines on businesses that advertise in Spanish (68 companies were fined in 2016), and many people feel discouraged from stating non-nationalist opinions.

Nor does the Catalan government lack effective power. The police have been under its command since 2000. This means 16,654 police officers in Catalonia apply force according to the instructions of the Generalitat. A few months ago, the government dismissed Albert Batlle, the head of the police force, because he was not committed to the secessionist cause.

Movements for independence or emancipation typically have a culminating historical moment in which the oppressive ruler or his representative is expelled from his palace by those seeking to liberate their country from foreign or tyrannical rule. This simply cannot happen with Catalan secession because the one who lives in the palace is actually the president of the Generalitat, Carles Puigdemont, who is at the same time the head of the regional government and also the supreme representative of the Spanish state in Catalonia.

On to the question of whether secession advances freedom. Should secession always be celebrated as the triumph of individual liberty? We find ambivalence among classical liberals owing to differences of circumstance and experience. As F.A. Hayek wisely observed in The Constitution of Liberty (1960): “Though the concept of national freedom is analogous to that of individual freedom, it is not the same; and striving for the first has not always enhanced the second.”

James Buchanan famously fixed unanimity as the ideal for passing constitutional legislation. By the way, in Catalonia 91 percent voted in favor of the Spanish Constitution of 1978, about as unanimous as it gets in modern politics.

Secession is not provided for in that document. Not that it would be impossible, but the Constitution would have to be amended for it to happen. That is precisely what the Catalan government has avoided here. The Generalitat did not want to make a reform proposal, which it legitimately could have done. For the past four years, it has preferred to telegraph its intention to violate the Constitution, this in spite of the Constitutional Court’s decisions and warnings against going down that path. Put simply, the Generalitat has opted to break the Constitution in order to fulfill its political objectives.

We are now at the heart of the problem. Who granted anyone the right to decide which part of the law applies and which part does not? Allowing the Constitution to be violated by a governmental body that itself emanates from said Constitution subjects all of us to the arbitrary application of public power. If we short-circuit the limits that the Constitution places on governmental power, then there is no limit on those who rule us, and freedom, property, and life are all at risk.

Some say, “Let them vote, let them decide.” Are all votes everywhere always just? Should we, for example, allow referenda to decide whether or not the Constitution stays in effect?

Majority rule has never justified the sacrifice of individual freedom. Besides, what majority is this? Are those who attend the Generalitat’s North Korea-style demonstrations the majority? Or are those simply large gatherings? Either way, we should recognize the almost one million people who demonstrated the other day in downtown Barcelona in order to simply say that no one has the right to deprive them of their country, their Constitution, or  their personal freedom.

There exists no right to act against the law, most especially when this imposes on others obligations or costs to which they have not agreed or consented. Individual freedom cannot be made contingent on just when and where a government wishes to stop in its transgressions of the Constitution.

This brings us to our third question: Would secession mean more freedom in the specific case of Catalonia?

An anti-freedom tendency on the part of the Catalan nationalists is a final factor to consider. Market dynamics often express a certain realism. Now that the Generalitat has taken the last steps toward secession, hundreds of large, medium, and small companies have moved their headquarters out of Catalonia. We are talking about companies that one thinks of as Catalan, such as CaixaBank, Banco de Sabadell, Aguas de Barcelona, ​​Seguros Catalana Occidente, among others. In less than a week, companies whose stocks are worth more than 50 percent of Catalonia’s annual GDP have chosen to leave.

The economic consequences of the secession of Catalonia would be devastating for Catalonia itself. This is not only because it would damage commercial and business networks, but because the Catalan government and its parliamentary allies will have shown very little respect for private property and the free market. As mentioned above, Catalonia is already one of the most heavily taxed regions of Spain, while also being one of the most indebted and most heavily subsidized.

As one indication of how things might go, the members of the Candidatura d’Unitat Popular (CUP), who are strategic allies in the coalition that sustains the current Catalan government, have already signaled that they plan to solve secessionist Catalonia’s fiscal problems by imposing controls on the withdrawals of money in the region’s banks.

CUP’s members are radical leftists whose support for Catalan secession is fanatical. The party’s platform is anti-capitalist. In August, when Islamist terrorists committed a horrific attack on the famous Las Ramblas promenade of central Barcelona, CUP laid the ultimate blame for the attack on “all those forms of fascist terrorism that are the fruit of the international logic of capitalism.”

For some parties, secession is not even the ultimate goal. The goal is radical revolution. This is evident in the so-called “Law of Transitional Jurisprudence” announced in August. This law, which the Constitutional Court immediately annulled, articulates a provisional constitution for secessionist Catalonia. This law creates a Social Constituent Forum to be populated by representatives from civil society and political parties.

The key word here is “creates,” in other words, the forum would not be elected. Moreover, this Social Constituent Forum would be entrusted with debating and articulating the principles and issues to be addressed by the future Catalan Constitution; this same forum would constitute “a mandate that will be politically binding on the Constitutional Assembly.”

This is the familiar trait of so many populist regimes: An unelected de facto power writes e a constitution that is to be imposed on Catalan citizens. Thus, the answer to our third question is also negative. In the specific case of Catalonia, secession will not make its people freer.

The only question now—and perhaps the most difficult to answer—is what does the future hold? What is already happening is ominous: Catalonia is experiencing a revolutionary coup.

Meanwhile, King Philip VI has done something unusual for a Spanish monarch. His recent speech succeeded in strengthening the resolve of millions of Spaniards. But the King, although the constitutional symbol of Spain’s unity and continuity, does not wield any governmental power nor should he in a parliamentary democracy.

Rather, it is the Spanish government that has executive power, although in recent years it has employed every conceivable means of tossing the hot potato of executive measures against the Catalan government to judges. But the judiciary is not the executive branch, nor should it be. It has enough trouble issuing rulings on what is left of the Constitution.

One thing is certain: The secession of Catalonia from Spain will not be in defense of freedom but against it.

Leonard P. Liggio once wrote: “Self-determination makes sense not as a collective concept, but as an individualist concept.” Freedom is for individuals, not for groups, even if we break the latter into their smallest possible components. Is freedom only possible in the smallest of states or only in those states that can be broken into smaller states? How then does freedom persist in places like the United States? Is it not by way of that nation’s Constitution? This is the issue that is being played out right now in Catalonia.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 24, 2017 at 15:21:04 pm

Thanks, that was informative. Hard to find any useful information in the US media.

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gabe
on October 24, 2017 at 17:12:13 pm

"Well, l've never been to Spain, but l kinda like the music. They say the ladies are insane there...."

With all apologies to Three Dog Night, l don't know the first thing about this controversy. l thought the Basques were the ones who wanted to secede. And l make it a point to STFU when l don't know enough to offer informed comment.

The only image l've seen regarding this controversy was that of a Spanish cop in riot gear beating the sh** out of an old woman for the unspeakable crime of trying to vote.

l don't know why anyone would want to leave Spain. l would trade COTUS for theirs in a heartbeat. But if everything the author says is true, it begs an obvious question: Why in the hell did 90% of Catalans vote to secede?

Brexit was close. So was the Scottish referendum. But the only things in America with a lower approval rating are HlV, bedbugs, and Congress. :)

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Trevor Chase
on October 24, 2017 at 18:22:20 pm

" But the only things in America with a lower approval rating are HlV, bedbugs, and Congress."

Well, I guess that with Tricky dick having gone to the Great Beyond, it was not unreasonable to expect the approval rating of used car salesman to go up (or maybe it was CarFax - who knows).

It is a good question - "Why did 90% vote for secession. The link the author provides hints of some irregularities and Googling this matter, I found that voter turnout was only 43% - that sort of coincides with the essayist's figure of pro-secession parties able to garner only 35% support.

Funny thing is, I could envision a 90% rate if the Catalans were voting to secede from the stinkin' "Imperial" EU - but SPAIN!

Then again, we only provide a slightly higher turnout - SOME times.

seeya

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gabe
on October 24, 2017 at 20:59:22 pm

There was a 43% turnout, despite intense voter suppression by the national government. As average turnout in national elections is 58%, even if you gave opponents 100% of the difference (~800,000 votes), the referendum would have passed by more than 2-1. Those numbers don't add up.

l really don't get this one.

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Trevor Chase
on October 25, 2017 at 01:38:59 am

Trevor, the so-called referendum was deemed by the courts unconstitutional because Spain's constitution doesn't allow for secession, on top of that the law enabling it was passed by the local parliament violating their own statutory law as well as normal parliamentary procedures in order to steamrolled the opposition. Needless to say that everything related to the voting itself was irregular and the opposition boycotted it. Only committed separatists which are about 40% of the population show up to vote and there were many instances of double voting.
In regularly held elections the separatists parties have always gotten less than 50% of the vote and given that the turn out as is usual in free countries is seldom over 70% of the voters the actual percentage of secessionists voters is less than 40%. They have the government and the huge patronage and media machine that comes with it because proportional representation and gerrymandering in favor of rural areas gives them a slight majority of representatives in the regional parliament.
A decision so consequential as to break away from Spain, of which Catalonia has always been a part since its inception (it has never been a separate country as say Bavaria or Lombardy) I would argue could not be taken by a simple majority, much less by a minority. That is why in the U.S. we require supermajorities of both the elected representatives and the states to amend the constitution.
But the final test as Mr. Fernandez-Lasquetty put it is what is the effect of secession on individual freedom. What do you think a movement that it is equal part xenophobic and radical-left that is attempting to reach its objective by mob rule will bring?
BTW, I am not a Spaniard, I am an American born in Cuba. My great-grandparents were from Asturias (another autonomous region of Spain) and sympathized with the republican faction in the latest Spanish Civil War that ended up with Franco's dictatorship although they were in Cuba back then. I follow Spanish politics out of curiosity and I had the opportunity to experience the suffocating atmosphere created by the nationalists last year when I visited Barcelona among other places in Spain. I am also well versed in Spanish history from sources well removed from Spain and its modern controversies (like Prescott) which makes me immune to partisan, sectarian and nationalistic distortions and propaganda.

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Juan Carlos de Cardenas
on October 25, 2017 at 12:39:15 pm

The Spanish constitutional court broke the pact established between the Catalan autonomous community and the Spanish state when it annulled the statute of autonomy of Catalunya voted by the Catalan citizens with a very representative participation. From this fact the Catalan citizens have been legally unprotected by the Constitutional Court. Now, in addition, our fundamental rights are being violated. The descriptions of the facts that you do remotely can confuse individuals. The Catalan people want to choose freely but the authoritarian Spanish does not allow it. regards

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Regina Josefina
on October 26, 2017 at 00:35:59 am

Juan, l'm not passing judgment; l am merely pointing out that if you had the traditional ~60% turnout, the separatists would have won 2-1. What l don't grasp is the "why." l can't wrap my mind around why so many of them would vote to secede from a country as sane as Spain. (As for voting irregularities, l'm not sold.) From The Guardian:

“We’ve always felt we’ve had a raw deal – ever since 1714,” says Florensa, who was born and bred in Terrassa, a city half an hour’s drive from Barcelona.

“I suppose that makes it an old fight. As far as the top people in Madrid are concerned, Catalonia is a possession; we still feel like we’re the spoils of war.”

What are the actual grievances? That you oppose it on ideological grounds is obvious, but l am curious as to why those who favor it do.

And then, there is the math. You claim that everyone who did not vote agrees with you, which does not seem at all tenable (polls appear to be at least 50-50).

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Trevor Chase
on October 26, 2017 at 00:37:44 am

Thank you, Regina. That makes a lot more sense. People don't revolt without a reason.

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Trevor Chase
on October 26, 2017 at 08:16:10 am

Thanks to you. if you have opportunity I recommend you travel to Barcelona and Catalunya because it is a very peculiar country because it adds the best of the old continent and the best of the new continent.
regards

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Regina Josefina
on October 26, 2017 at 18:38:57 pm

Regina,

I don’t know how you have concluded that the Spanish constitutional court broke any kind of pact. Catalonia is a part of Spain from very long ago and the last forty years Spain has been ruling under the law and the constitution approved by all the Spaniards. The Catalans approved also the same constitution with 90% of affirmative answers.

The second autonomous statut mentioned is an organic law. As that, it has a lower range than the constitution. It doesn't matter that it was approved by referendum and passed the parliament. If the law is contradictory with the constitution, it must be corrected by the constitutional court. You cannot have two laws saying different things on the same matter. Under the rule of the law, the higher range must prevail always. There is no exception for that in any serious country.

No fundamental rights are being violated in Catalonia. Saying the opposite is not fair play. No fundamental right exists for secession in Spain without modifying the constitution, as happen in the majority of the countries. To do this kind of modification is possible, but not with a weak minority. Big modifications of the master rule need big majorities all over Spain, not only regional interest.

To vote is a right when you are called to in the frame of the law. You cannot hide that the 10/01 poll was illegal. Its purpose was to declare independence under a law approved without parliamentary discussion, violating the parliamentary procedures, clearly illegal and annulled by de constitutional court. Do you think it is a fundamental right to vote illegally? Really?

You say that Spanish government is authoritarian. Well, compared with what? This referendum was not authorised by Spanish government, that is right, but exactly the same would have happened if the secession movement outlaw had happened in Germany, UK, France, Italy, Sweden etc. The readers must be informed of that to avoid misunderstandings and the transmission of an image of Spain far from the truth.

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Ramon
on October 27, 2017 at 10:57:41 am

Ramon:

l am a neutral here, openly conceding my lack of knowledge of the (real or merely alleged) grievances triggering this dispute. But as l do the math (above), about 2/3 of Catalans want independence from Spain, and something must have triggered this. Exactly what are they upset about?

Regrettably, l am old enough to remember the Generalissimo. To say that Catalunya was part of Spain during his regime is like saying that Ukraine was part of Russia. When the new Republic was formed, did Catalunya have an opportunity to become independent? The Basque region? l'm not certain that that question was ever litigated by the people (l also recall a Basque separatist movement of some vintage); perhaps you can enlighten me.

From what l am gathering from Regina, part of the deal keeping Catalunya under the Spanish umbrella was that it was given a statutory grant of limited autonomy, not unlike that of an American state. lt sounds as though that arrangement was recently altered, and the Catalans are not pleased.

l won't take a position on whether the vote was "legal." "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the rights of the law,' because law is often but the tyrant's will, and always so when it violates the rights of the individual." Thomas Jefferson, Letter (to Isaac Tiffany) (Apr. 4, 1791) at 1. All l will conclude is that if 60-70% of the people want independence, the problem is going to have to be dealt with.

l don't pretend to be able to advise the parties, but l would like to understand the dispute.

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Trevor Chase
on October 27, 2017 at 12:24:32 pm

Yes, can someone please be SPECIFIC as to how the "arrangement" was altered. I cannot seem to find a clear exposition of these "alterations" in our media.

Also, Dawg: So what happened to your concern for adhering to the Constitution. spain has one, and I presume it is a legitimate sensible one. Or does adherence to constitutional strictures apply only to the ones that you like.

I have no idea as to the propriety of the Catalan's position - I would just like to gain some minimal understanding of what the issues are, especially the precipitating issues.

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gabe
on October 27, 2017 at 16:32:08 pm

So here is thebest I could come up with:

http://www.euronews.com/2017/10/05/catalonia-why-do-some-want-independence-from-spain

From this link, it is made to appear that the Catalans have an economic grievance, at least primarily.

The Spanish court apparently ruled that some provisions of the autonomy law were illegal.

I would ask one of our Spanish and / or Catalan readers to a) supplement this, b) confirm it, or c) contradict it.
I am NOW curious.

Tried BBC, Brookings, etc but not much information was available.

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gabe
on October 27, 2017 at 18:41:49 pm

Unlike the EU, COESP does not have a provision governing secession. There has to be some way to do it, and ours didn't turn out all that well.

Catalunya has been quasi-independent since COESP's adoption. And they just got around to striking down a major portion of that agreement? Did the Court act in bad faith?

So much of this makes no sense on its face; l won't pass judgment without knowing more.

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Trevor Chase
on November 01, 2017 at 07:50:47 am

We could be talking about possible and real grievances forever, so I won´t go there, but you could do much better than taking what Regina Josefina says as gospel. She is as partisan as they come, and probably, so am I, on the other extreme, only I don´t lie about it.

What I will go into, however, is your electoral maths: instead of taking data from a mock referendum and then projecting said data using extremely questionable assumptions, Why don´t you just take your numbers from the last elections, real numbers from real elections?

Most analysts agree in that many voters of pro-secession parties would not vote for secession in a legal and binding referendum, and they also agree that most people who currently abstain in regional elections would vote against secession in such a referendum, but let´s leave all that aside, I said "real", so let´s stick to numbers.

Secessionists would want you to concentrate on the regional parliament, because representation is heavily skewed to favor the two rural provinces of Lerida and Gerona, where secessionist vote is higher, it was set up that way in 1978 to mollify the nationalists and it´s never been challenged. Have a look at numbers of votes, not the seats these earn, and the fact is that, in the last election, secessionist parties received 47% of the voting.

That´s your absolute ceiling. How did you figure out your 2 to 1 for secession?

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ManBearPig666
on December 29, 2017 at 12:09:48 pm

Constitutions and the undoubted benevolence of the Kingdom of Spain notwithstanding, self-government is the natural right of any group that considers itself culturally, politically and/or linguistically distinct from another group.

The Dutch asserted this 1581, the Pilgrims and Puritans asserted it in the 1620s and 30s, Jefferson asserted it in 1776 and it has been a recurring theme ever since. Roosevelt and Churchill asserted the same thing in the Atlantic Charter.

Gandhi said something the effect that people will always prefer bad self-government to good government imposed and enforced by foreigners. He also said "Just as a man would not cherish living in a body other than his own, so do nations not like to live under other nations, however noble and great the latter may be."

So, if the Catalonians think of themselves as culturally, linguistically and politically distinct from the Spanish (and they have for 500 years and more) why must they tolerate Spanish occupation and rule? Why shouldn't they be as independent as the Portuguese, Irish and Luxembourgers, if that is what they chose?

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EK
on December 29, 2017 at 18:07:16 pm

Very well said EK. You captured my thoughts exactly. It comes down to borders, language, and culture. But like anything else, it really comes down to money. I'm not an expert on Spain, but when I read accounts from Catalonians, they truly believe they would be better off keeping their own money. Who can fault them for that?

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Mike Peterman
on December 31, 2017 at 07:38:49 am

Very interesting and informative!

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Paul Binotto

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