Majority Rules in Constitutional Referendums

70.3 Kyklos 402

27 Pages Posted: 22 Mar 2015 Last revised: 7 Aug 2018

See all articles by Ignacio Cofone

Ignacio Cofone

McGill University Faculty of Law

Stephan Michel

University of Hamburg - Institute of Law and Economics

Date Written: March 19, 2015

Abstract

The paper addresses the divergence in majority rules at the moment of creating or reforming constitutions. While constitutions require, in most cases, qualified majorities in order to be approved at the constitutional assembly, they normally require only simple majorities to be ratified at the referendum. We analyze the set of conditions under which each majority rule is preferable for constitutional referendums. We argue that the simple majority requirement for referendums in constitution-making, which is nearly universally used, lacks a clear theoretical justification. Qualified majority rules increase legitimacy and provide additional checks on the drafters. We further highlight when simple majority rules have advantages: when decision-making costs in the referendum are high. Thereafter, we present an evaluation mechanism to identify the cases in which each majority rule should be used to increase stability and legitimacy. We then apply this evaluation mechanism to the constitution-making processes in Poland, Bolivia and Egypt, which are three examples of diverging majority rules.

Keywords: Constitution-making, Referendum, Popular Participation, Unanimity, Majority Rules, Qualified Majority

JEL Classification: D71, K10

Suggested Citation

Cofone, Ignacio and Michel, Stephan, Majority Rules in Constitutional Referendums (March 19, 2015). 70.3 Kyklos 402. Available at SSRN: https://ssrn.com/abstract=2580849 or http://dx.doi.org/10.2139/ssrn.2580849

Ignacio Cofone

McGill University Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://www.ignaciocofone.com

Stephan Michel (Contact Author)

University of Hamburg - Institute of Law and Economics ( email )

Johnsallee 35
Hamburg, 20148
Germany

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