Fixing Popular Participation in Constitution-Making

Abstract

This article addresses the double-standard of popular participation 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. The article shows that the normative reasons to use either qualified majorities or simple majorities are applicable to both cases. It then argues that in order to fix popular participation, thereby increasing the legitimacy and stability of constitutions, the same majority rule should be used at the assembly stage and the referendum stage unless specific circumstances of the case dictate otherwise. In order to identify those, it presents a two-stage evaluation mechanism to identify the cases in which each majority rule should be used in order to increase the stability and the legitimacy of the constitutional draft.