The Unnecessary Referendum

Abstract

Abstract Why are new constitutions increasingly submitted to referendum? This chapter describes how, in moments of ‘constitutional interregnum’ where the previous constitutional system has been abrogated and there are no longer any institutional mechanisms in place for the expression of popular will, a referendum is viewed as the only way that a new constitution can claim a sovereign people’s approval. Further, a constitution’s approval at referendum is often taken to be sufficient for this claim to the authority of popular sovereignty. This chapter challenges this orthodoxy, arguing that a referendum is neither necessary nor sufficient for a constitution’s claim to the authority of popular sovereignty. By drawing a distinction between constituent power and popular sovereignty in the first place, and between popular sovereignty and sociological legitimacy in the second place, the chapter argues that the claim to popular sovereignty brings with it a substantive commitment to moral autonomy and political equality. No referendum can purport to express the sovereignty of a people without first recognising that every individual who constitutes that people must be free to contribute to formulating the people’s sovereign will. The referendum is unnecessary: all that is necessary is the commitment to the substantive conditions that make the referendum itself possible. Referendal approval delivers sociological legitimacy to a constitution but does not by itself imbue that constitution with the authority of popular sovereignty. Indeed, a veneer of legitimacy may obscure constitutional arrangements that are antithetical to the very concept of popular sovereignty.