Constitutional Referendums: A Theoretical Enquiry
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00749.x |
| Date | 01 May 2009 |
| Published date | 01 May 2009 |
| Author | Stephen Tierney |
Constitutional Referendums: ATheoretical Enquiry
Stephen Tierney
n
In recent decades the use of referendums to settle major constitutional questions has increased
dramatically.Addressing this phenomenon as a case study i n the relationship between democracy
and constitutional sovereignty, this article has two aims.The ¢rst is to argue that these constitu-
tional referendums are categoricallydi¡erent from ordinary, legislativereferendums, and that this
has important implications for theories of constitutional sovereignty. Secondly, the article sug-
gests that the powerof these constitutional referendums to re-order sovereign relationsraises s ig-
ni¢cant normative questions surrounding the appropriateness of their use. The article engages
with these normative questions, enquiring whether the recent turn in republican political theory
towards deliberative democracy may o¡er a model through which su⁄ciently democratic refer-
endum processes can be constructed.
INTRODUCTION
The use of referendums aroundthe world has grown remarkably in the pastthirty
years
1
and in some places, such as California and Switzerland, they act almost as
adjuncts to the legislature. Aparticularly notable development in recent decades,
however, is that referendums have been used notsimply in the ordinarylegislative
process, but increasingly in the settlement of fundamental constitutional ques-
tions, and often in countries with no tradition of direct democracy.
2
There are
four ways in which referendums are used today at the constitutional level: to
found new states;
3
to create or radically change constitutions;
4
to establish com-
plex new models of sub-state autonomy;
5
and to transfer sovereign powers from
the state to international institutions.
6
What connects these four types of referen-
dum is that they each address the location or distribution of ultimate lawful
n
Professor of Constitutional Theory, University of Edi nburgh.The research for this article was facili-
tated by a British Academy Senior Research Fellowship, 2008^2009. I am alsograteful to anonymous
referees, mycolleague Neil Walker and to participants ats eminars in Edinburgh,Warwick,On
ati and
Montre
Łal for helpful comments on an earlier draft.
1 Lawrence LeDuc estimates that of the 58 fu nctioning electoral democracies in the world with a
populationof more than three million, 39 had conducted atle asto ne nationalreferendum between
1975 and 2000. L. Leduc,The Politicsof D irectDemocracy: Referendums in Global Perspective (NewYork:
Broadview Press,2003) 29.
2 In 2005 the Netherlands conducted its ¢rst ever referendum on the draft European Union Consti-
tutional Treaty.
3 East Timor in 1999 and Montenegro in 2006.
4 Fairly recent, albeit unsuccessful, attempts include the referendum over the draft Charlottetown
agreement in Canada in 1992 and that concerning the head of state in Australia in1999.
5 The UK is an interesting case with referendums following the Belfast Agreement 1998and others
on Scottish and Welsh devolution in 1979 and 1997. Spain has also seen referendums on sub-state
autonomys ince1978 and moreare anticipated in the Basque Country and Cataloniaby 2014.
6 France as well as the Netherlands famously held a referendum on theTreatye stablishing a Consti-
tution for Europe in 2005 and in 2008 the Irish referendum on theTreaty of Lisbon caused con-
troversy.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(3) 360^383
authority within the polity and in doing so, implicate the sovereign relations
between people and government.
7
It seems, therefore, that referendums o¡er a
novel perspective on how these relationships are encapsulated in constitutional
momentsacross a range of settings. Constitutional momentsdi¡er from ordinary
politics both in terms of their signi¢cance
8
but also in the way they change how
ordinary politics is thereafter conducted.
9
It will be argued in this article that, in
similar ways, constitutional referendums can be said to di¡er from ordinary or
legislative referendums.
The starting point for this argument is to explore what is particularly signi¢-
cant about constitutional referendums in the context of sovereignty theory.
Despite their growing prominence in processes of constitutional creation and
change,it is surprising that constitutional referendums have rarely been subjected
to systematic classi¢cation or critical analysis byconstitutional theorists.
10
Insofar
as referendums have been studied,the focus has usuallycome fromempirical poli-
tical scientists who are generallyconcerned more with the detail of the electoral
process than with the constitutional implications of referendums.
11
More note-
worthy is a general failure on the part of constitutional lawyers and theorists to
address referendums at all, far less to distinguish the particular legal implications
of ‘constitutional referendums’ from those of ‘ordinary referendums’.
12
Therefore,
we will seek to develop this ¢eld of enquiry by asking what implications consti-
tutional referendums have for therelational dimension ^ people to government ^
of constitutional sovereignty today. The principal argument is that constitutional
referendums can serve to unsettle the traditional balance between constituent
power and constitutional form in the contemporary polity, substituting the peo-
ple directly for the representational role traditionally played by the democratic
constitution. This supplanting of representative constitutionalism is a very di¡er-
ent function from that performed by ordinary referendums which, in merely
replacing the legislature in ordinary law-making, carry no real implications for
constitutional supremacy.
7 Following Loughlin, who has de¢ned sovereignty as ‘an expression of a political relationship
between the people and the state’. M. Loughlin,The Ideaof Public Law (Oxford: OxfordUniversity
Press, 2003)95.
8 B.Ackerman,Wethe People:Foundations (Cambridge:Harvard University Press,1991).
9 B.Ackerman,Wethe People:Transformations (Cambridge:Har vardUniversity Press,1998).
10 Notable contributions include: I. Budge,The New Challengeof DirectDemocracy (Cambridge:Polity
Press,1996) and M. Seta
ºla
º,Referendums and Democratic Government (NewYork:St Martin’s,1999).
11 D. Butler and A. Ranney (eds), Referendums Around theWorld:The GrowingUse of Direct Democracy
(Hampshire: Macmillan,1994); M. Gallagher and P. Uler i (eds),The ReferendumExperiencein Europe
(London: Palgrave/MacMillan,1996); M. Mendelsohn and A. Park in, ReferendumDemocracy:Citi-
zens, Elite and Deliberation in Referendum Campaigns (Basingstoke: Palgrave, 2001); M. Qvortrup, A
Comparative Study of Referendums: Government by the People (Manchester: Manchester University
Press, 2005).
12 Certai n political scientists are at least alive to the categoryof constitutional referendums.LeDuc, n
1 above, introduces the species although understandably, given his focus, he makes little of it in
fundamental distinction with ordinary referendums. See also A. Auer and M.Bˇtzer (eds), Direct
Democracy:the Eastern and Central EuropeanExperience(Aldershot: Ashgate, 2001),introductory chap-
ter. Recently there has been a recognition of the importance of constitutional referendums at the
EU level: M.Shu, ‘Referendums and the Political Constitutionalisation of the EU’ (2008) 14 Eur-
opean LawJournal423, but broader theoretical work remains lacking.
StephenTierney
361
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(3) 360^383
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