Leah Trueblood has written an important book about the relationship between referendums and constitutional change. Referendums as Representative Democracy(Hart 2024) challenges the way in which referendums have been generally conceived by constitutional theorists: rather than mechanisms of direct citizen control, Trueblood argues that referendums should be understood as exercises of representative democracy. Referendums are thus not mechanisms that allow a people to make political decisions but are means for voters to provide direction to their representatives. In developing this argument, Trueblood maintains that referendums should not be seen as a corrective of the problems affecting the quality of contemporary representative democracies (e.g., the lack of citizen interest and involvement in politics, the capture of legislatures by economic elites, the adoption of policies disconnected from the needs of majoritarian but disempowered sectors of society). In fact, it is the other way around: representative democracy should be understood as a corrective to the deficits of referendums (p. 81, 99).
The deficits of referendums, which have not gone unnoticed in the literature, are connected to their very nature: e.g., referendums are not necessarily deliberative processes, their results can be manipulated through the spread of misinformation, and they only give voters a chance to vote ‘yes’ or ‘no’ on complex questions whose content is ultimately determined by elites. In the last few years, these concerns have only been accentuated by the results of referendums in places such as the United Kingdom (Brexit) and Chile (the popular rejection of a progressive constitution), cases which Trueblood discusses in some detail in Chapter 6 of her book. In light of those results, it is perhaps not surprising that scholars strongly committed to the democratic ideal have started to raise doubts about the desirability of referendums in processes of constitutional change. Why, then, are referendums still largely seen, at least in some quarters, as necessary for the democratic legitimacy of fundamental constitutional changes?
For Trueblood, the root of the problem lies in the notion that democracy has two decision making racks: one for the people, one for the politicians. “Two-track democracy” rests on what Trueblood identifies as a “simple and powerful idea”: that fundamental constitutional decisions are not for politicians to make (p. 18). Those fundamental constitutional decisions, instead, must be made by the people directly. For Trueblood, however, it is not possible to develop a clear conceptual distinction between decisions that can be made by representatives and decisions that fall under the jurisdiction of the popular will. The distinction between ‘non-fundamental’ and ‘fundamental’ questions (the latter of which she defines as “questions that amend ‘sovereign relations’ or ‘transfer powers’ and those that do not” p. 22) is inevitably unstable. Questions, for example, about pension regimes, which may at first sight appear to be about ordinary policy, can be understood as raising fundamental questions about the relationship between citizens and the state.
If “it is not possible to define one principled category of questions which implicate the sovereign relations between voters and their government, and another for those that do not”, it is simply “unclear what two-track democracy is meant to track.” (p. 24). This does not mean that Trueblood rejects the idea that voters, and not their representatives, are the ultimate source of authority in a democracy. She does, however, urge us to realise that the notion of the people as the author of a constitution can only be a metaphor. In a way reminiscent of the doctrine of the historical constitution, Trueblood maintains that “[c]onstitutions are not just constituted in moments, and they are not just constituted in texts. They are ongoing processes of constitution and re-constitution” (p. 16). Accordingly, instead of finding new ways of understanding constitutional authorship, what we have to do is to replace this metaphor with “a broader understanding of the role of public participation in constitutions” (p. 33). A referendum, she argues, should thus be conceived as “the beginning rather than the end of voters’ constitutional roles in a democracy” (p. 34).
During a constitution-making process (and through the life of a constitution), voters can let representatives know their views about constitutional issues through opinion polls, letter-writing, running for office. Popular participation in constitutional change should not be limited to exceptional (referendum) moments. Indeed, such an approach tends to weaken, rather than strengthen, a people’s role in democracy. This understanding is presented not only as more democratic but as more realistic: even if one were to accept the concept of a two-track democracy, a referendum does not allow voters to make the kind of collective fundamental political decisions that such a notion requires. A decision, Trueblood argues, is a mechanism to “stop deliberation and act,” so “it makes sense that deliberation would be a pre-requisite for decision-making” (p. 47). Collective deliberation, in turn, cannot take place through a process in which millions of separate individuals (i.e. individuals that are not formally part of a deliberating body) are asked to answer a ‘yes’ or ‘no’ question.
The idea that referendums are exercises of direct popular decision-making is thus a myth. Consequently, the notion that “some decisions must be made by the people rather than representatives is always the wrong kind of reason to hold a referendum.” (p. 14). For Trueblood, this is not necessarily a problem: rather than understanding referendums as unmediated exercises of popular power, we should see them as instances of voters making choices about decisions to be made by representatives, thus as means for citizens to “exercise control over constitutions” (p. 128). While there are other mechanisms or forms of political action that can help achieve those same ends (e.g., citizen assemblies, popular protests), referendums are especially valuable, for example, to justify constitutional entrenchment (p. 85) and, when successful, can provide “members of a political community with reasons to support outcomes they disagree with” (p. 89). This is especially true in contexts of deep disagreement, including situations where there is “a gap between the views or voters and representatives (or between representatives)” (p. 131).
Despite the strength and novelty of Trueblood’s overall argument, I think it reproduces a – in my view – problematic tendency in constitutional theory and comparative constitutional law. This tendency, for lack of a better term, can be described as a status quo bias. In the case of Trueblood’s excellent book, it manifests in two related ways. First, the book takes the traditional institutions of representative democracy as a default background to which any constitutional mechanism needs to accommodate. Second, it subjects any alternative constitutional mechanism to criticisms that are not equally applied to the default background. The first point is perhaps best exemplified in the way Trueblood invites us to think about referenda in Chapter 4 of her book. She argues that instead of simply treating referendums as “bare votes” (p. 64), we should see them as part of “a dialogue with representatives.” (p. 60). Moreover, the reason why there may be resistance to that conception is that it “puts pressure on the whole conceptual framework of distinguishing between constitutive and constituted powers” (p. 60).
To overcome that problem, Trueblood suggests that our thinking about referendums should start with the term instead: “the meaning of the word referendum comes from the word referre, which means ‘to refer back’” (p. 59) and point toward the relational element of these mechanisms (that is, an instance where voters provide direction to representatives). However, behind that original meaning lied a system directly opposed to our notion of representative democracy. Under that system, members of a legislature were legally bound to obey the instructions of their constituents; they could not make decisions about issues that were not part of their (imperative) mandate. If an issue that fell outside a legislator’s mandate was the object of discussion in the legislative assembly, the legislator could only express their views ad referendum, that is, they would have to go back to the primary assemblies that elected them in order for their decisions or vote in the assembly to become official. This was especially the case in the context of discussions about constitutional change (which was one of the reasons why French revolutionaries eventually rejected this view and embraced the idea of the ‘free mandate’).
In such a scenario, referendums were about providing direction to ‘representatives’, but in an institutional context anathema to our conception of representative democracy (an institutional context where the decision-making power of legislators was even more limited than in a ‘two-track democracy’). In that respect, the notion that “[r]eferendums are reliant on, and inextricable from exercises in what is ordinarily called representative democracy” is only true if one accepts the current system as an inescapable default. This can be illustrated by looking further into the kind of arrangement in which the old notion of referenda operated. The initial set of instructions or any subsequent one (e.g. an instruction issued after an ad referendum decision) took place through a referendum, but one that would take place, as suggested above, in a primary assembly. As entities open to members of particular localities, primary assemblies could be a site of public deliberation at a massive scale (that is, imagine thousands of primary assemblies deliberating on a single issue and then voting on the same proposition – a proposition that could itself have originated in a popular initiative).
When operating in such a context, referendums would come accompanied by the possibility of collective deliberation, an element that Trueblood considers a necessary pre-condition for the making of a political decision. In other words, the problem of the lack of collective deliberation only applies to referendums that have already been conceived under the logic of representative democracy. At the same time, and this brings me to the second manifestation of the tendency mentioned above -i.e., the subjection of referendums to criticisms that may equally apply to representative legislatures- some of the key critiques presented by Trueblood against contemporary referendums largely apply to representative legislatures as well. For example, we cannot know the true reasons why voters in a referendum voted in a particular way, but the same is true of legislatures voting in favour or against a bill; voters can be manipulated by economic elites, so do representatives; voters cannot execute the laws they adopt, representatives cannot do so either; referendums (as elections) can be used in despotic ways to consolidate power; the same about the legislative power exercised by representatives.
In Chapter 3, Trueblood considers this possibility, noting that some authors (e.g., María Emilia Barreyro) have argued that the notion “that representatives act together legislatively” (p. 55) is also a myth. Trueblood, nonetheless, writes that even if Barreyro is right, “some types of myth are more useful than others” (p. 55), and the myth that referendums are unmediated acts of popular will is “unhelpful”. The reason is simple: it is a myth that can “undermine representative democracy” (p. 55). That is of course true if representative democracy is a default which we cannot (and should not) try to challenge. For myself, I think an important task of a constitutional theory is precisely to imagine alternative constitutional arrangements, and that will often require us to move into institutionally unfamiliar territory. In a certain way, Trueblood’s superb book has given us the tools to do that. By showing us that voting in referendums should not be conceived as the ultimate or sole form of citizen involvement in constitutional change, her approach points toward the proliferation of other means of popular participation. But what she gives us with one hand, she seems to take away with the other: those other means are, in the end, designed to support (never to supplant) the type of constitutional arrangements we already have.
Posted by Joel I- Colón-Ríos, Professor of Law, University of Essex
British Association of Comparative Law 
1 Comment
Comments are closed.