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Revoking Independence

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. dht says:

    Wasn’t this essentially the question in the California Prop 8 case, that a freedom (to marry) was revoked? The Supreme Court has now answered that question.

  2. Joe says:

    The “principle” sounds like realism especially if the colonies (looking around) have a lot of guns.

  3. PrometheeFeu says:

    Well, they could pass an act of parliament annexing any country. So I think it’s sort of a moot point.

  4. Josh Chafetz says:

    Two quick thoughts:

    (1) I would think that, as a matter of U.K. law, Parliament can repeal these independence acts (although doing so might, as you suggest, violate a constitutional convention). But since the effect on the ground in the former colony itself of the independence act is to make that former colony no longer subject to U.K. law, I can’t think of any reason why the former colony would be legally bound to care about the repeal. So you’d simply have a situation in which the U.K. and some (former) colony disagreed as to whether that (former) colony was still a colony. From the perspective of the U.K., it would be a colony. From the perspective of the former colony, it would not. And from the perspective of everyone else, it would present, I assume, the same issue of international law as any other situation of disputed sovereignty (say, Taiwan vs. PRC).

    (2) Given the large number of different meanings that the concept of “freedom” can take, I’d be skeptical of importing a British constitutional convention of postcolonial relations into American law of domestic liberties. Consider the example that dht raises above — you could argue that the (individual) freedom to marry, once given by the California Supreme Court, cannot be taken away by Prop. 8. But you could also argue that the (collective) freedom of the California political community to determine its own laws dealing with marriage, once given, cannot be taken away by the federal courts. Which of these would be the more authentic application of the borrowed principle? One’s answer, I suspect, will depend on one’s political and constitutional priors, which might suggest that borrowing the principle from the U.K. constitutional context doesn’t actually do much for us.

  5. brad says:

    Josh Chafetz Re: 1 above, what about the situation where the British Parliamentary act is the legal basis for the country and it’s organization going forward?

    I’m thinking in particular of Canada. As far as a remember the Canada Act doesn’t say that Canada is independent per se, but instead has an entrenchment provision that purports to remove all further legislative authority over Canada from the British Parliament.

  6. Brett Bellmore says:

    I believe it would have roughly the same status if they just up an passed a law annexing some random country, which had never been a colony of their’s: Absolutely no force, unless they could enforce it militarily.

    Does seem like a dandy way to piss off people who usually have a good opinion of them, but I suppose Hong Kong stands for the principle that they’re willing to do that.

  7. Spencer Waller says:

    I am not sure how this directly affects the question you posed but unless and until Britain leaves the EU, it is bound by the Treaty on the Functioning of the European Union. So there is de facto a written constitution supreme by its terms over Acts of Parliament, albeit in treaty form.

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