The Unnecessary Referendum

In emerging and transitioning democracies, a new constitution is often approved by referendum. In a constitutional interregnum, where the previous constitutional system has been abrogated and there are no mechanisms of political expression in place, approval at referendum appears necessary for a new constitution to make a claim to the authority of popular sovereignty. At the same time, the new constitution’s approval at referendum appears sufficient for that claim. This paper challenges both of these views, 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 paper argues that the claim to popular sovereignty brings with it a substantive commitment to every individual’s moral autonomy and political equality.

Challenges and Opportunities of Democracy-enhancing Tools in Constitution-Making in Small States

Expectations around public participation in constitution-making are changing. It is now rarely sufficient for constitutional choices to be crafted by experts and ratified by popular representatives. Nor, often, is it sufficient to endorse constitutional choices through popular referenda or plebiscite processes. Instead, there is an increasing focus on, and arguably an emerging transnational norm around, providing opportunities for active and direct public participation. This paper contributes to that discourse by, first, taking a comparative look at the phenomenon to begin to sketch a typology of participatory mechanisms grounded in their actual usage and second, by analysing the challenges and opportunities associated with such mechanisms using small states (with populations of less than 1.5 million) as the lens, instead of larger states which have been the lens for much existing academic analysis. 15 such small states are found in the Asia-Pacific.

Constitutional Disagreement, Deliberation and Change

Constitutions mediate political disagreement across time: constitutional change mechanisms allow the contemporary generation to alter constitutional commitments, thereby impacting upon future generations. Ireland has recently undergone a significant period of constitutional change, during which the right to life of the unborn and the criminal prohibition on blasphemy were removed and the recognition of same-sex marriage was mandated. These changes were all approved by referendum but the proposals for change were shaped by initial recommendations from a forum of deliberative democracy. In this paper, we present Ireland's Citizens Assembly as a mechanism that: (a) softened the elite power to initiate a referendum; (b) allowed the exploration of contested legal issues that paved the way for the referendum campaign; (c) altered the parameters for the politically-driven constitutional change process, and (d) demonstrated the potential for informed debate on a highly contentious issue.