Discretionary Referenda in Constitutional Amendment

Abstract

The unexpected results of recent referenda around the world have concealed an important similarity among many of them: the referenda were not constitutionally obligatory. For example, the Constitution of the United Kingdom does not require a referendum to authorize Brexit nor does the Colombian Constitution require one to ratify the FARC peace pact. Yet in both cases constitutional actors felt compelled by political imperatives to forego the settled rules of constitutional change 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 referenda by choice rather than constitutional obligation as part of a larger strategy to legitimate a major constitutional change. In this paper, I draw from these kinds of non-obligatory referenda held around the world to develop a typology of discretionary referenda in constitutional amendment. I also examine why constitutional actors use discretionary referenda 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 bypass the formal rules of constitutional change to amend the constitution, with recourse not only to referenda but to other modalities of constitutional change.

Keywords: Constitutional Amendment, Constitutional Referendums, Constitutional Change, Comparative Constitutional Amendment, Comparative Constitutional Law, Referendums, Canadian Constitution, French Constitution, Colombian Constitution, Peace Pact, Brexit, UK Constitution