Whose Political Constitution? Citizens and Referendums

Abstract

One notable feature about the debate between ‘liberal’ and ‘political’ constitutionalism has been its elite focus. The courts and the legislature are discussed in efforts to determine the appropriate role of each in processes of constitution-framing and changing. But this task is often set up implicitly as a zero-sum game. Although it might be claimed that citizens are tangentially relevant to this power struggle, a detailed account of whether citizens should, and how they might, play a direct role in constitutional authorship is seldom if ever placed on the table. This paper considers the elite orientation of this debate questioning whether this is in normative terms acceptable, and in empirical terms credible, particularly as we consider how, over the past three decades, the referendum has emerged as an important vehicle for constitutional change in so many states.

Keywords: law, constitutional law, constitutional theory, direct democracy, referendums, constitutionalism, political constitutionalism, republicanism, civic republicanism