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Whose Political Constitution? Citizens and Referendums

Published online by Cambridge University Press:  06 March 2019

Stephen Tierney

Abstract

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One notable feature about the debate between “liberal” and “political” constitutionalism has been its elite focus. The courts and the legislature are discussed in efforts to determine the appropriate role of each in processes of constitution-framing and changing. But this task is often set up implicitly as a zero-sum game. Although it might be claimed that citizens are tangentially relevant to this power struggle, a detailed account of whether citizens should, and how they might, play a direct role in constitutional authorship is seldom, if ever, placed on the table. This paper considers the elite orientation of this debate, questioning whether this is in normative terms acceptable, and in empirical terms credible, particularly as we consider how, over the past three decades, the referendum has emerged as an important vehicle for constitutional change in so many states.

Type
Part I: The Boundaries of the Conception and Practice of Politics within Political Constitutionalism
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2185 - 2196
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

Professor of Constitutional Theory, University of Edinburgh, [email protected].

References

1 There are, I think, interesting and important distinctions to be found in the English tradition of the common law, and its complex relationship with the democratic imperative that undergirds the legitimacy of the UK Parliament, that can distinguish it in positive ways from the didactic zeal of liberal legalism's methodological individualism, but space forbids such a discussion here. See Alison Young, Sovereignty: Demise, Afterlife or Partial Resurrection?, 9 Int'l J. Const. L. 163 (2011).Google Scholar

2 See Loughlin, Martin, Constitutional Theory: A 25th Anniversary Essay, 25 O.J.L.S. 183 (2005); see also Martin Loughlin, The Idea of Public Law (2004); Martin Loughlin, Foundations of Public Law (2010). This body of work is exempt, of course, from the criticism of narrowness of scope which we find in some work on political constitutionalism.Google Scholar

3 This is particularly so in the UK. See, e.g., Adam Tomkins, Our Republican Constitution (2005).Google Scholar

4 I make an exception here for Adam Tomkins and one or two others within the political constitutionalist tradition who do follow the logic of the argument that any defense of Parliament or parliaments hinges, at least to some extent, upon how well in practice they perform their constitutional functions. See id.Google Scholar

5 For a focus of a number of contemporary constitutional theorists (e.g. Tomkins, Bellamy), see Philip Pettit, Republicanism: A Theory of Freedom and Government (2007); see also Hoi Kong, Towards a Civic Republican Theory of Canadian Constitutional Law, 15 Rev. Const. Stud. 249 (2011).Google Scholar

6 Northern Ireland Act 1998, 1998, c. 47, § 1(1) (U.K.) (“It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll held for the purpose of this section. …”).Google Scholar

7 European Union Act 2011, 2011, c. 12, § 2 (U.K.) (“A treaty which amends or replaces TEU or TFEU is not to be ratified unless … the referendum condition or the exemption condition is met.”).Google Scholar

8 It is difficult to be too precise. As I have noted, the referendum was used as a political tool by rival political actors at this time and the use of unofficial polls by small regions proliferated.Google Scholar

9 See Henry E. Brady & Cynthia S. Kaplan, Eastern Europe and the Former Soviet Union, in Referendums Around the World: The Growing Use of Direct Democracy 174, 180 (David Butler & Austin Ranney eds., 1994).CrossRefGoogle Scholar

10 Id.Google Scholar

11 See White, Stephen & Hill, Ronald J., Russia, the Former Soviet Union and Eastern Europe: The Referendum as a Flexible Political Instrument, in The Referendum Experience in Europe 153, 157–60 (Michael Gallagher & Pier Vincenzo Uleri eds., 1996).CrossRefGoogle Scholar

12 European Commission for Democracy Through Law, Code of Good Practice on Referendums, Study No. 371/2006 (Jan. 20, 2009), available at http://www.venice.coe.int/webforms/documents/CDL-AD%282007%29008rev.aspx.Google Scholar

13 See Russell J. Dalton, Citizen Politics in Western Democracies: Public Opinion and Political Parties in the United States, United Kingdom, Germany, and France (2d ed. 1996).Google Scholar

14 E.g., Neil Nevitte, The Decline of Deference: Canadian Value Change in Cross National Perspective (1996).CrossRefGoogle Scholar

15 See Matthew Mendelsohn & Andrew Parkin, Introduction, in Referendum Democracy: Citizens, Elites, and Deliberation in Referendum Campaigns 1 (Matthew Mendelsohn & Andrew Parkin eds., 2001).CrossRefGoogle Scholar

16 Id. at 6.Google Scholar

17 Anthony Giddens, The Third Way: The Renewal of Social Democracy 75 (1998).Google Scholar

18 See id.Google Scholar

19 Select Committee on the Constitution, Referendums in the United Kingdom, 2009–10, H.L. 99 (U.K.), available at http://www.publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/99.pdf.Google Scholar

20 See generally Anthony Hartley, Gaullism: The Rise and Fall of a Political Movement (1972); Serge Berstein, The Republic of de Gaulle 1958–1969 8–11 (Peter Morris trans., 1993); Guy Carcassone, France (1958): The Fifth Republic After Thirty Years, in Constitutions in Democratic Politics 241 (Vernon Bogdanor ed., 1988).Google Scholar

21 For example, the farcical referendum held in Syria in 2012. See Khaled Yacoub Oweis, Syria Approves New Constitution Amid Bloodshed, Reuters, Feb. 27, 2012, http://www.reuters.com/article/2012/02/27/us-syria-idUSL5E8DB0BH20120227 (noting that, even though “Syrian artillery pounded rebel-held areas[,] … President Bashar al-Assad's government announced that voters had overwhelmingly approved a new constitution in a referendum derided as a sham by his critics at home and abroad”).Google Scholar

22 See Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberation (2012).CrossRefGoogle Scholar

23 See Bruce Ackerman, We the People: Foundations (1991).Google Scholar

24 Rosenfeld discusses how modernist constitutionalism has played the role of constructing a form of collective self that builds upon but is, in its unitary and unifying functions, also different from diverse pre-constitutional cultural and ethnic attachments. See Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture and Community (2010).CrossRefGoogle Scholar

25 See Tierney, supra note 22, at 285–99.CrossRefGoogle Scholar