The Deliberative Case for Constitutional Referenda
Ron Levy, "The Deliberative Case for Constitutional Referenda" (2017) 16(2) Election Law Journal 213.
14 Pages Posted: 15 Nov 2017
Date Written: June 21, 2017
In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.
Keywords: referendum, plebiscite, constitutional reform, deliberative democracy, same-sex marriage
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