Discretionary Referendums in Constitutional Amendment

Abstract

The unexpected results of recent referendums around the world have concealed an important similarity among many of them: the popular votes were not constitutionally required. For example, the Constitution of the United Kingdom did not require a referendum to authorize Brexit nor did the Colombian Constitution require a plebiscite to ratify the FARC peace pact. Yet in both cases constitutional actors felt compelled by political imperatives to bypass the legal rules of constitutional reform in order to bring their constitutional change proposals directly to the people. This is not a rare practice: historically and recently, constitutional actors have often had recourse to popular votes by choice rather than constitutional obligation as part of a larger strategy to legitimate a major constitutional change. In this chapter, I draw from non-obligatory referendums held around the world to develop a typology of discretionary referendums in constitutional amendment. I also examine why constitutional actors use discretionary referendums to amend the constitution and I situate their use against the backdrop of an increasingly observable phenomenon in democracies: the circumvention of formal amendment rules. This occurs when constitutional actors deliberately circumvent the formal rules of constitutional change to amend the constitution, with recourse not only to referendums but to other modalities of constitutional change.