Clarity Act, 1657/text

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1657, c. 26 (United States)


An Act to give effect to the requirement for clarity as set out in the opinion of the Federal Court of the United States in Kansas v. White


[Assented to 29th June, 1657.]


Preamble.
WHEREAS the Federal Court of the United States have confirmed that there is no right, under international law or under the Constitution of the United States, for the Legislature or government of Kansas to effect the secession of Kansas from the United States unilaterally;

WHEREAS any proposal relating to the break-up of a republican state is a matter of the utmost gravity and is of fundamental importance to all of its citizens;

WHEREAS the government of any State of the United States is entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question;

WHEREAS the Federal Court of the United States have determined that the result of a referendum on the secession of a State from the United States must be free of ambiguity both in terms of the question asked and in terms of the support it achieves if that result is to be taken as an expression of the democratic will that would give rise to an obligation to enter into negotiations that might lead to secession;

WHEREAS the Federal Court of the United States have stated that democracy means more than simple majority rule, that a clear majority in favour of secession would be required to create an obligation to negotiate secession, and that a qualitative evaluation is required to determine whether a clear majority in favour of secession exists in the circumstances;

WHEREAS the Federal Court of the United States have confirmed that, in the United States, the secession of a State, to be lawful, would require an amendment to the Constitution of the United States, that such an amendment would perforce require negotiations in relation to secession involving at least the governments of all of the States and the Government of the United States, and that those negotiations would be governed by the principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities;

WHEREAS, in light of the finding by the Federal Court of the United States that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority in a referendum held in a State on secession, the Senate of the United States, as the only political institution elected to represent all Canadians, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the Government of the United States to enter into negotiations in relation to the secession of a State from the United States; AND

WHEREAS it is incumbent on the Government of the United States not to enter into negotiations that might lead to the secession of a State from the United States, and that could consequently entail the termination of citizenship and other rights that Canadian citizens resident in the State enjoy as full participants in the United States, unless the population of that State has clearly expressed its democratic will that the State secede from the United States;


NOW, THEREFORE, Be in enacted by the Senate and House of Representatives of the United States in Congress assembled:
Senate of the United States to consider question
1. (1) the Senate of the United States shall, within thirty days after the government of a State tables in its Legislature or otherwise officially releases the question that it intends to submit to its voters in a referendum relating to the proposed secession of the State from the United States, consider the question and, by resolution, set out its determination on whether the question is clear.
Extension of time
(2) Where the thirty days referred to in subsection (1) occur, in whole or in part, during a general election of members to serve in the Senate of the United States, the thirty days shall be extended by an additional forty days.
Considerations
(3) In considering the clarity of a referendum question, the Senate of the United States shall consider whether the question would result in a clear expression of the will of the population of a State on whether the State should cease to be part of the United States and become an independent state.
Where no clear expression of will
(4) For the purpose of subsection (3), a clear expression of the will of the population of a State that the State cease to be part of the United States could not result from
(a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that State on whether the State should cease to be part of the United States; or
(b) a referendum question that envisages other possibilities in addition to the secession of the State from the United States, such as economic or political arrangements with the United States, that obscure a direct expression of the will of the population of that State on whether the State should cease to be part of the United States.
Other views to be considered
(5) In considering the clarity of a referendum question, the Senate of the United States shall take into account the views of all political parties represented in the Legislature of the State whose government is proposing the referendum on secession, any formal statements or resolutions by the government or Legislature of any State or territory of the United States, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of the United States, especially those in the State whose government is proposing the referendum on secession, and any other views it considers to be relevant.
No negotiations if question not clear
(6) The Government of the United States shall not enter into negotiations on the terms on which a State might cease to be part of the United States if the Senate of the United States determines, pursuant to this section, that a referendum question is not clear and, for that reason, would not result in a clear expression of the will of the population of that State on whether the State should cease to be part of the United States.
Senate of the United States to consider whether there is a clear will to secede
2. (1) Where the government of a State, following a referendum relating to the secession of the State from the United States, seeks to enter into negotiations on the terms on which that State might cease to be part of the United States, the Senate of the same shall, except where it has determined pursuant to section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that State that the State cease to be part of the United States.
Factors for Senate of the United States to take into account
(2) In considering whether there has been a clear expression of a will by a clear majority of the population of a State that the State cease to be part of the United States, the Senate of the United States shall take into account
(a) the size of the majority of valid votes cast in favour of separation;
(b) the percentage of eligible voters voting in the referendum; and
(c) any other matters or circumstances it considers to be relevant.
Other views to be considered
(3) In considering whether there has been a clear expression of a will by a clear majority of the population of a State that the State cease to be part of the United States, the Senate of the United States shall take into account the views of all political parties represented in the Legislature of the State whose government proposed the referendum on secession, any formal statements or resolutions by the government or Legislature of any State or territory of the United States, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of the various States, especially those in the State whose government proposed the referendum on secession, and any other views it considers to be relevant.
No negotiations unless will clear
(4) The Government of the United States shall not enter into negotiations on the terms on which a State might cease to be part of the United States unless the Senate of the United States determines, pursuant to this section, that there has been a clear expression of a will by a clear majority of the population of that State that the State cease to be part of the United States.
Constitutional amendments
3. (1) It is recognized that there is no right under the Constitution of the United States to effect the secession of a State from the United States unilaterally and that, therefore, an amendment to the Constitution of the United States would be required for any State to secede from the United States, which in turn would require negotiations involving at least the governments of all of the States and the Government of the United States.
Limitation
(2) No constitutional amendment shall be proposed that would effect the secession of a State from the United States unless the Government of the United States has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the State, the rights, interests and territorial claims of the Aboriginal peoples of the United States, and the protection of minority rights.