University of Bristol Law School

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Direct Democracy and Constitutional Change: Do the People have an inalienable right to alter or abolish the Constitution?

Jurgen Goossens, Postdoctoral Research Fellow (FWO) at Ghent University, and Assistant Professor of Constitutional Law at Erasmus University of Rotterdam

I. Introduction: the rise of constitutional referenda

In the past decade, many scholars and policymakers have indicated that there is a ‘crisis of democracy’, as inter alia reflected in mass citizen protests, high abstention rates at elections, distrust towards political representatives, and indifference to political affairs.[1] At the same time, however, a profound debate is going on about revitalising democracy through new forms of citizen participation, such as participatory budgeting[2], and invigorating deliberative democracy[3]. Particularly, there has been a proliferation of direct democracy to pursue constitutional change.[4] 

Increasingly, referendums are held on important questions, such as the upcoming Turkish constitutional referendum on the replacement of the parliamentary system by a presidential system (16 April 2017), the referendum in The Netherlands on the approval act for the Ukraine-EU Association Agreement (6 April 2016), the referendum on the amendment of the Irish Constitution to legalise same-sex-marriage (22 May 2015), the Scottish referendum on independence (18 September 2014), the referendum on Catalonian independence (9 November 2014), or the referendums in 2005 in several EU Member States on the ratification of the Treaty establishing a Constitution for Europe with a positive outcome in Spain and Luxembourg, yet a negative outcome in France and The Netherlands. According to Stephen Tierney, Europe is indeed entering the ‘age of the referendum’.[5] Although referendums can jeopardise democracy if they are not used in a proper manner, he observed that they mainly encounter practical problems that can be addressed in a well-functioning democracy by a proper design.[6] 

The observed increase of constitutional referenda will probably continue given the dissatisfaction of citizens with traditional methods of constitutional law-making, which often only involve legislatures. The rise of referenda might be part of a larger movement towards more informal, non-formalised means of constitutional change with direct participation of citizens.[7] Most probably, this evolution can partly be attributed to the traditional rigidity of formal amendment procedures, whereby constitution-writing is often considered to be a rather elitist and secretive process.[8] Although the Icelandic constitutional crowdsourcing experience (2010-2013) did not (yet) lead to actual constitutional change, it has undeniably challenged the view that constitution-making must be exclusionary and secretive.[9] 

II. Exclusive reading of formal constitutional amendment procedures

If the gates to direct involvement of citizens are closed by the formal constitutional amendment procedure, the important question arises whether it is legitimate to block any involvement of the People and thus suppress the revival of the constituent power. In this regard, there has already been a vigorous debate in the US about the question whether the rigid federal amendment procedure in Article V of the Constitution should be read as the exclusive way to alter the Constitution. 

Article V of the US Constitution maps out four different paths to amendment.[10] Regarding the initiative to propose amendments, a two-thirds vote in the House and the Senate is required, or two-thirds of the state legislatures can call a national proposing convention. Thereafter, Congress has the power to choose the mode of ratification: approval by three-fourths of the state legislatures, or by conventions in three-fourths of the states. Hitherto, not a single constitutional amendment has been adopted via a national proposing convention. A two-thirds vote of both chambers of Congress is actually necessary, because a national proposing convention does not seem to be a preferred or feasible option for the states. Consequently, Congress always has a veto power, which makes it unlikely to pass any amendment limiting the power of Congress or increasing the power of the state level.[11] 

Although Article V of the US Constitution does not provide any form of direct democracy, it remains an open question whether an amendment procedure should be read as the exclusive way to alter a Constitution. A majority of legal scholars seems to support an exclusive reading of the amendment procedure in Article V.[12] According to their view, one can only rely on the formal procedure to alter the Constitution. Nevertheless, one could also opt for a non-exclusive reading of amendment procedures and invoke the principle of popular sovereignty to argue that the People have an inalienable right to alter or abolish their Constitution.

III. Popular sovereignty: non-exclusive reading of constitutional amendment procedures

Excluding the People from constitutional law-making might create a democratic legitimacy problem. In 1787, Founding Father James Wilson argued in the U.S. that “[t]he people may change the Constitution whenever and however they please. This is a right of which no positive institution can ever deprive them”.[13] In the past decades, Akhil Amar, for example, relied on the principle of popular sovereignty to advocate that the People have an inalienable right to alter or abolish the Constitution that they have ordained and established.[14] According to Amar’s non-exclusive reading of the amendment procedure, Article V of the US Constitution supplements the inalienable right of the People to alter the rules governing them via a national referendum.[15] He argues that Article V should be read as the exclusive way for the federal and state legislators to propose and ratify amendments without involvement of the People, which stems from a distrust of the People against 'imperfect representatives”.[16] Relying on a non-exclusive reading of Article V and on the First Amendment’s right of the People to petition the Government, Amar defends that Congress would be obliged, for instance, to call a proposing convention if a simple majority of American voters so petitioned.[17] 

In his book ‘Our Undemocratic Constitution’, Sanford Levinson endorses Amar’s non-exclusive reading of Article V and defends the legality of a ratifying national referendum by simple majority vote.[18] Given the rigidity of Article V, he suggests to organize a national referendum proposing to call a national convention entrusted with the task to draft a new constitution, followed by aratifying referendum by simple majority vote.[19] Bruce Ackerman also endorses a non-exclusive reading of Article V. He acknowledges that successful constitutional transformations or amendments can take place outside the formal amendment process. He believes that this, for instance, happened during the New Deal, when Democrats publicly and self-consciously pursued a new constitutional solution to expand federal regulatory power outside the traditional amendment process of Article V. This took place under the lead of President Roosevelt for which he relied on the appointment of judges in the Supreme Court.[20] 

In the past, it has regularly been proposed in the US to opt for more direct democracy on the federal level through the introduction of popular initiative and a final approval of constitutional amendments via referendums.[21] Ackerman, for instance, suggested to explicitly amend Article V of the U.S. Constitution in order to introduce the option of a national referendum.[22] Although it is recommendable to explicitly provide the option of citizen involvement in the constitutional amendment procedure itself, it seems at odds with the principle of popular sovereignty to exclude the People at all times from constitutional law-making based on a strict and exclusive reading of amendment procedures, especially given the renewed interest in popular constitutional law-making. 

IV. Primary vs. secondary constituent power

Traditionally, a distinction is made between constituent power and constituted power.[23] Yaniv Roznai developed an additional distinction between primary constituent power (constitution-making) and secondary constituent power (constitution-amending).[24] In this regard, he claims that the Constitution cannot restrict an inclusive, deliberative, and time-consuming amendment process that actually re-emerges the primary constituent power, for instance via referendums or constitutional conventions. He distinguishes various levels of secondary constituent powers along a spectrum. The more similar the democratic characteristics of amendment powers are to those of the primary constituent power, which is closely linked to popular sovereignty, the less it should be bound by limitations, as opposed to amendment processes that are more comparable to regular legislative power.[25] 

The principle of popular sovereignty and thus the idea that the People can shape and change their society[26] implies that they cannot be deprived to exercise primary constituent power and alter the constitutional order.[27] In this regard, Carl Friedrich argues that constitutional amendment provisions, no matter how elaborate they may be, never supersede the constituent power.[28] Consequently, constituted powers, such as amendment procedures, do not limit the primary constituent power.[29]The constituent power of the Peoplemay always revive in ‘Ackermanian’ constitutional moments of higher law-making. In these moments citizens deliberately produce higher law-making that better reflects the will of the People than the acts of majoritarian institutions during normal politics.[30] 

Providing and allowing deliberative and direct democracy might be a step in the right direction to tackle the problems our representative democracy is facing such as democratic deficits, distrust towards political representatives and indifference to political affairs. In any case, a proper design and solid procedure with necessary guarantees are an absolute requirement for popular constitutional law-making.

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