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.