Constituent Power and the Constitutional Referendum: A Critical Appraisal

Referendum is increasingly used in constitutional change for the purpose of securing democratic legitimacy. This trend in constitutional politics is arguably connected to the growing interest in the ideals of popular sovereignty and the constituent powers of the people; that is, the idea of the state as “constitutionally willed by the people” (Alexe, 2015; Thornhill, 2012). Recent commentary takes it that the constitutional referendum derives support from the notion of the constituent powers of the people (Colon-Riós, 2010). In order for the people to be “sovereign” participatory forms of democratic legitimation for public institutions are required “all the way down” (Arato and Cohen, 2009, 312). This paper examines the meaning of “the constitution” in arguments for increasing popular participation in constitutional change. Arguments grounded in the significance of constituent power are premised on the constitution being of paramount significance though the basis for this belief, more precisely, is rarely spelled out. In the paper, we propose and evaluate three distinct ways of identifying the constitution that is the object of the constituent powers of the people; by reference either to its legal status, legal functions or its normative significance. Each view is illustrated by examples from referendums that have recently taken place in democratic nations in relation to amendments of constitutions. The argument entertained is that none of the proposed accounts of the constitution fit the argument that amendments to the constitution must be approved by the people in referendum in order to be legitimate by democratic standards. The paper concludes that “the constitution” in theories of constituent power is a misnomer as it does not refer to any plausible account of the constitution of the state.