Introduction
There is a recent global trend towards limiting the scope of constitutional amendment – whether by explicit textual limits or through judicial interventions to protect ‘constitutional identity’, the ‘basic structure’ and so forth.Footnote 1 And while the concept of unamendability is defended with reference to various ideas of human rights, countermajoritarian stability and so on, in this paper I am concerned, rather, with the lesser-explored justification of the opposite, outlier position – the principle of unfettered constitutional amendability. And specifically, I will consider how the political theory of popular sovereignty has been translated (or mistranslated) within judicial doctrines of unfettered constitutional amendability.
The standard rationale for unfettered amendability typically assumes that the constitutional-amendment process is an expression par excellence of sovereignty, and that the constitutional-amendment referendum is an expression par excellence of popular sovereignty. In most instances, the constitutional-amendment referendum is understood as a sovereign – and therefore, as a substantively unfettered mechanism – because it is interpreted as a process through which the people authors or creates constitutional norms, imposing its will over and above the organs of state in the form of fundamental law. That is to say, most doctrines of unfettered amendability rely on some version of the theory of constituent power – ostensibly a repurposed form of popular sovereignty – according to which the people exercises an originative and extralegal power to create and remake a constitution.
However, I argue, on the one hand, that theories of constituent power offer an implausible justification for unfettered constitutional amendability, because they exaggerate the level of popular empowerment that constitutional referendums – or indeed voting exercises of any kind – can offer. In the constitutional-referendum context, the people acts not as a constitutional author and creator – as somehow freestanding and spontaneous – but rather, in a negative or reactive role, as check or control on the powers of representative organs.Footnote 2 The people, in this setting, is better viewed as a constituted component of a ‘mixed constitution’ rather than as an ethereal, extralegal agent.
Nonetheless, I will argue, doctrines of unfettered unamendability find some support in older, lesser-theorised concepts of ‘sovereignty’, which reside in constituted rather than constituent power. In fact, it is only once we understand the ‘people’ more modestly, as a constituted power, that its ‘sovereign’ claims become more plausible. Popular sovereignty, in this sense, refers to decisional finality and unaccountability, rather than the more mythological terms of authorial or originative power. The idea of the ‘sovereign’ people as claiming unlimited power of constitutional amendment makes more sense, then, once we abandon certain distorting mythologies of constituent power.
I will begin, in the first section, by describing how popular sovereignty has been invoked to justify a principle of unfettered constitutional amendability in the jurisprudence of constitutional-amendment referendums, focusing on France and Ireland as examples of jurisdictions where such referendums have been understood as ‘sovereign’ or ‘constituent’ exercises. In the second section, I will argue that theories of constituent power offer an implausible explanation for the ‘sovereign’ character of the constitutional referendum, given how popular power is pre-constituted and constrained within the constitutional-amendment process. In the third section, nonetheless, I will argue that the principle of unamendability can more coherently be understood with reference to an alternative historical understanding of sovereignty as being defined by the finality and the unaccountability of a constituted power – and that, moreover, this can be distinguished from political ‘command’ or supremacy as such. Accordingly, I will argue that the focal point of sovereignty lies not at the inception, but at the end point of constitutional change.
The jurisprudence of unfettered constitutional amendability
In constitutions where the scope of amendability is left unclear – that is to say, where there are no explicit limitations on amendment – the issue is typically left to judicial determination, based usually on various normative and prudential desiderata that are often linked to theoretical questions of sovereignty and constituent power. On the one hand, limits to amendability are often inferred based typically on a concern to protect ‘constitutional identity’, the ‘basic structure’, human rights, or various fundamentals of whatever kind.Footnote 3 Crucially, however, limits on amendability also tend to be justified by denying the amendment power itself any ‘sovereign’ or ‘constituent’ status. Thus the constitutional-amendment power can be limited, in this view, because it is deemed either a form of derived or secondary constituent power, and thus subordinate to the primary or originative constituent power, or alternatively as a form of constituted power – and therefore, similarly, as inferior to the status of the genuine constituent power.Footnote 4 Indeed Maria Cahill argues that for a peculiar strand of French constitutional thought, limits on the scope of amendment power are themselves necessary in order to protect the primacy of the primary or originative constituent power.Footnote 5
Conversely, then, doctrines of unfettered constitutional amendability may be justified by recognising the constitutional-amendment power as itself being either a ‘sovereign’ or ‘constituent’ power,Footnote 6 and thus as being incapable of judicial constraint. In particular, the amendment-process, where effectuated via referendum or plebiscite, may itself be understood as an expression of popular sovereignty.Footnote 7 In this understanding, constitutional amendment, as much as constitutional creation, is an expression of popular sovereignty, and sovereignty implies an absence of oversight or restraint that is inconsistent with any power of judicial review over proposed amendments.Footnote 8 Critically, then, doctrines of unfettered amendability will typically reject any strong normative hierarchy between extra-legal or revolutionary constitutional change on the one hand, and the pre-constituted, procedural power of constitutional amendment on the other.
I will focus here on two European jurisdictions where such doctrines have arisen – France and Ireland. In both jurisdictions, the rejection of limits on amendability implicitly eschews any strong distinction, of the kind noted above, between the normative status of the amendment power and that of the original power of constitutional authorship. Both powers are ‘sovereign’, and by necessity unfettered. Both jurisdictions, then, essentially reject the idea that the creative power of the people can be domesticated or constrained (at least substantively) within the functioning of the Constitution, post-enactment. This is arguably one version of a theory of ‘open’ constituent power. Each jurisdiction implicitly rejects any dualism of ‘original’ versus ‘derived’ constituent power of the kind earlier described,Footnote 9 of the kind which is used to justify limits on amendment power based on the supposedly special status of an originative act of constitutional creation.
France
In France, Article 89 of the 1958 Constitution ostensibly introduces a limit on amendability in affirming that ‘the republican form of Government cannot be the subject of an amendment’. However, the Conseil Constitutionnel has declined to enforce any such limit on amendability, referring specifically to the overarching normative authority of the people within the amendment process.
In 1962, President de Gaulle attempted to amend the Constitution by invoking Article 11 of the Constitution, which permitted referendums on the ‘organisation of public power’, thus bypassing the parliamentary amendment-mechanism specified in Article 89. Most scholars considered this as procedurally invalid given that constitutional amendment appeared to fall outside the remit of Article 11. However, the Conseil ruled a challenge inadmissible.Footnote 10 On a procedural point, the Conseil held it had no competence to rule on constitutional amendments effectuated by the people as distinct from parliamentary legislation. However, it also referred to the ‘sovereign’ status of the popular vote: it described the referendum as ‘a direct expression of national sovereignty’.Footnote 11
This rather terse ruling left unsettled the question of whether the ‘sovereignty’ of the people was to be expressed purely procedurally, through the process of constitutional amendment and indeed of voting in general, or whether alternatively, it was encapsulated in certain substantive constitutional principles which themselves were therefore incapable of revision. In other words, it had yet to consider whether the ‘sovereign’ power of constitutional amendment was by its nature self-limiting.
These weightier questions were addressed in the 1992 ruling of Maastricht II.Footnote 12 The Conseil rejected the argument that the amendment permitting the Maastricht Treaty had undermined the essential conditions for the exercise of sovereignty. Moreover, echoing the 1962 ruling, the Conseil held, tersely: ‘the constituent power is sovereign’ – thus emphasising the procedural rather than substantive constitutional expression of sovereignty. It also conflated the concepts of sovereignty and constituent power, identifying constituent power in the act of constitutional amendment as well as that of constitutional creation. More importantly, however, it went on to reject any understanding of sovereignty as being encapsulated in specific substantive provisions or principles, again identifying sovereign power purely with the process of amendment, which, on this logic, is substantively unfettered. The ‘constituent power’, it said, is free ‘to repeal, amend or amplify provisions of constitutional status in such form it sees fit [and] that there is accordingly no objection to the insertion in the Constitution of new provisions which derogate from a constitutional rule or principle’.Footnote 13 Notably, however, it also said that this was subject to ‘limitations relating to periods during which amendments cannot be engaged or pursued [and] to the requirement of respecting the prescriptions of Article 89 …’.Footnote 14 Ostensibly at least, this seemed to modify the earlier stance which eschewed any restrictions on the form of amendment adopted by the constituent power via referendum, in a sense reconstituting or proceduralising the ‘constituent’ power of amendment.
This stance was elaborated upon in a third ruling concerning a 2003 amendment providing for the decentralised organisation of the Republic.Footnote 15 The Conseil simply reiterated its lack of competence to decide on the validity of constitutional amendments as distinct from parliamentary legislation. In this light, it is worth emphasising that the jurisprudence of the Conseil is, in some senses, not concerned with the idea of unamendability as such – as it effectively recognises the sacrosanct status of the republican principle – rather, its emphasis is primarily on the substantive justiciability of constitutional amendments, based on the technical distinction between amendments and parliamentary laws.
In summary, then, French constitutional doctrine has rejected any concept of constitutional unamendability specifically by referring to the status of the people, within the amendment process, interchangeably as a ‘sovereign’ and ‘constituent’ power.Footnote 16 What is perhaps most significant is that, at least in one ruling, unfettered amendability applies partly to the procedure as well as the substance of amendment, implicitly, perhaps, because of an understanding that the constituent power may act extra-legally.
Ireland
Unusually in European terms, the Constitution of Ireland (1937) declares that ‘any provision’ may be amended through a referendum initiated by parliament.Footnote 17 The question of immutable principles, as distinct from unamendable articles, is left unclear, although there is a good deal of reference to ‘natural rights’ and even to principles that are ‘antecedent and superior to positive law’.Footnote 18 However, despite such apparent textual scope for a theory of unamendability, the Irish Supreme Court has repeatedly invoked the sovereignty of the people in rejecting the existence of any substantive limits on the amendment power.Footnote 19 This is grounded partly on what is ostensibly a rather unremarkable assertion of popular sovereignty in Article 6, which states:
All powers of government egislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
The Supreme Court has consistently understood constitutional-amendment referendums as the expression par excellence of popular sovereignty, and in turn, has understood the sovereignty principle as precluding any substantive constraints on the people’s power of amendment.Footnote 20 The Court invoked popular sovereignty in dismissing diverse arguments as to the supposed immutability of various fundamental principles, particularly precepts of natural law. In Finn v Attorney General,Footnote 21 the Supreme Court held that ‘the people intended to give themselves full power to amend any provision of the Constitution’Footnote 22 (a formulation which, incidentally, leaves open the possibility of a distinction between primary and derived constituent powers, with both substantively unfettered). In Slattery v An Taoiseach, similarly, the court asserted clearly that ‘a proposal to amend the Constitution cannot per se be unconstitutional’.Footnote 23
Some of these judgments pitted the sovereign people against ‘natural law’, which had previously been acknowledged as the philosophical cornerstone of the constitutional order.Footnote 24 In Riordan v An Taoiseach (No. 1),Footnote 25 the Supreme Court rejected the argument that the fifteenth amendment, permitting divorce, had violated implicitly immutable principles relating to the status of the family. Barrington J insisted: ‘there can be no question of a constitutional amendment properly before the people and approved by them being itself unconstitutional’.Footnote 26
While this permissive approach seemed to contradict the previous understanding of natural law as an overarching constraint on political power, this apparent paradox was conclusively addressed in the Abortion Information reference in 1995. The Court definitively rejected the idea that the amendment power could be judicially limited based on principles of natural law. It had been argued that the fourteenth amendment of the Constitution, permitting the dissemination of abortion information, was invalid because inconsistent with the natural right to life of the ‘unborn’. However the Court affirmed that: ‘the Constitution … is the fundamental and supreme law of the State representing … the will of the People’.Footnote 27
There are some important differences in the French and Irish doctrines; most notably, the concept of constituent power, which is historically important in French juristic thought, is effectively absent in the Irish discourse. Equally, the French doctrine hints, at least, at the possibility of extra-legal expressions of the constituent power – as in the 1962 scenario – whereas the Irish judgments strongly emphasise the highly proceduralised, constituted character of the sovereign power.
On the other hand, however, an important commonality is that both essentially reject the authority of a fossilised, ‘past’ people over the present one. The French doctrine is a little more ambivalent in this respect: jurists commonly distinguish primary and derivative constituent power, and the jurisprudence admits to a principle of non-amendability in theory, declining challenges, instead, based on issues of competence and justiciability. Yet is also refers to the ‘sovereign’ character of the constituent power in the process of constitutional amendment as much as constitutional creation, and so, like the Irish doctrine, temporalises the ‘people’ (or ‘nation’) that is assigned the sovereign power.Footnote 28 Effectively, this rejects the theory whereby the constituent power of a past people constraints the amendment powers of the present one. One way of framing this is to understand the original constituent power not as dormant but as continually ‘live’, and that it is free to undertake unlimited constitutional revision both through extralegal or revolutionary acts on the one hand, but also through the ordinary revision process on the other.Footnote 29 On the one hand, the attribution of something akin to constituent power to the people within the constitutional-amendment context seems inconsistent with the extra-legal, originative or extraordinary character of constituent power. Where the people acts in this capacity, its authority is not originative but rather is derived from previously existing legal rules. Yet it is sometimes pointed out that nothing should prevent the constituent power from acting, if it chooses, through already-constituted processes. Through the constituted, formalised amendment process, the people simply becomes a ‘domesticated version’ of the constituent power.Footnote 30 It seems ‘the sovereign moves uneasily inside and outside the Constitution’, assuming a more-or-less institutionalised form depending on circumstance.Footnote 31
In summary, then, both the Irish and French doctrines, then, reject an alternative account, discussed earlier, according to which constituent power is instantiated and embodied in the substantive principles originally enacted at some past point, and whose authority is projected forwards temporally until some unspecified revolutionary juncture. Rather, ‘sovereign’ constituent power lies purely in the power of revision itself, which is conceptually indistinct from the original act of creation (although this is less clear in the French theories).
Sovereignty and constituent power in constitutional referendums
Notwithstanding the anomalies and inconsistencies of the judicial doctrines outlined, a consistent idea is that the people’s amendment power is unfettered because the amendment-process itself is understood as an exercise of sovereignty. But what features of the amendment power – and specifically, of constitutional amendment referendums – serve to realise ‘sovereignty’? This seems difficult in many respects, not least, as already noted, because of the apparently derivative or pre-constituted nature of constitutional-amendment powers that seems inconsistent with an idea of sovereignty as being itself originative or supreme.
Typically, constitutional referendums are understood as realising popular sovereignty because they grant the people a power of authorship or creation with respect to constitutional content. Thus, constitutional referendums are understood as a ‘sovereign’ exercise because they are understood as a mechanism of constituent power. This understanding is ostensibly present in the judicial doctrines outlined; the referendum is a ‘sovereign’ act because it renders constitutional law in accordance with ‘the will of the People’, giving the people an authorial role with respect to constitutional law. And, indeed, this arguably accords with what Tuck identifies as an historical adaptation of the idea of sovereignty to the circumstances of mass society, whereby for Rousseau, in particular, ‘sovereignty’ entails no claim to command, in the Hobbesian sense – or even to govern, as such – but rather to authorise government and constitute the state by the enactment and revision of fundamental laws. The people, in this adjusted Rousseauian sense, is a constitutional legislator, and thus bears a form of constituent power in this capacity.Footnote 32 In Kalyvas’ words, the role of the sovereign as this ‘founding legislator’, is ‘not to exercise power, but to design the higher legal norms and procedural rules that will regulate this exercise of power’. Sovereignty, in this sense, is framed ‘not as the ultimate coercive power of command’, but rather instead as ‘the power to found, to posit, to constitute’.Footnote 33 Thus the domain of sovereignty was pared back to the domain of constitutional inception and change, rather than to governance as such – and while in France this began with the revolution, it was consolidated with the rise of liberalism under various 19th century regimes.Footnote 34 As Laferrière put it in the 19th century, constituent power is a ‘relative and temporary’ form of sovereignty that entails a power to ‘create forms, authorities, institutions’.Footnote 35
However, this idea of the constitutional-amendment referendum as an exercise of ‘constituent’ power – or at least, specifically, that it gives the people authorial or creative power with respect to constitutional law – is implausible in several respects. Most obviously, perhaps, it overlooks the degree to which popular power is constrained or pre-constituted within the constitutional-referendum process;Footnote 36 it elides, in particular, the necessary existence of an antecedent and genuinely ‘constituent’ step in which a prior compact or decision renders the majority of the voting people authoritative with respect to the corporate ‘people’ considered as a whole.
The idea that a singular agent called the ‘people’ creates, authors or enacts a constitution is a consistent theme running through the political theory of constituent power, spanning Schmitt, Arendt, and to some degree, Sièyes.Footnote 37 In turn, this understanding has been absorbed, more or less, by judicial doctrines that frame the people as the ultimate authors or creators of the constitution – a status that is thought to be realised as much in the process of constitutional amendment as in the original act of constitutional creation itself.
Yet this ubiquitous idea has an air of unreality, to say the least. It is empirically and sociologically unfounded. It attributes implausible coherence, intentionality and indeed unity to an entity that is diffuse and uncoordinated by its nature.Footnote 38 In reality, of course, constitutions are authored and created by lawyers, civil servants and politicians, under the influence of diverse factors and contingencies.Footnote 39 Thus for Michelman, an authorial view of constitutional origins is ‘the sheerest banality, a view as simplistic as it is inevitable, a commonplace vernacular notion that cannot withstand critical examination’.Footnote 40 Even Rousseau arguably envisages the people only as approving constitutional laws drafted by others, rather than literally originating or authoring them.Footnote 41 The ‘people’, insofar as it exists as such, may have approved or selected some of these architects or framers, and/or approved the subsequent text by a majority – in an exercise whose deliberative qualities are questionable or variable, to say the least.Footnote 42 But neither of these roles meaningfully amounts to an act of creation or authorship, at least of the kind the people is usually ascribed. While this much seems self-evident, its significance is routinely elided in constitutional thought.
Why, then, is constitutional theory so eager to recognise the existence of such a power – to indulge itself, so to speak, in this particularly egregious fiction? Arguably, the best explanation is that, historically, the idea originates as a technique of legitimation in real politics – as a way, discursively and rhetorically, of rationalising a given kind of political order. Sièyes in particular – a key actor in the French revolution – arguably conceived the concept primarily to tame and limit popular politics, while solving at an abstract level the problem of legitimacy. Thus his theory of constituent power ‘cannot be understood outside the social struggles on the part of the young French bourgeoisie for political primacy’.Footnote 43 The people, in Sièyes’ account, would originate the constituted order by voting and bestowing legitimacy on a constitution, but then disappearing off the political stage, confined to a more or less dormant role. This serves precisely to disempower the people in practical politics, by confining its ‘sovereign’ expressions to a foundational or ratificatory, and thus to a very limited domain. And the great flaw of constitutional theory, arguably, is to have mistaken this political legitimation strategy – essentially, an act of storytelling – as analytically useful. An idea that should be properly historicised and contextualised, approached as a political and rhetorical instrument, is taken, rather too earnestly, as a descriptive theory.Footnote 44 Or as Sagar puts it, terms like sovereignty ‘feature as attempts at legitimation in power struggles, rather than revealing a fundamental site of decisive authority’.Footnote 45
While the legitimation strategy of constituent power is most readily attributable to Sièyes and his intellectual heritage, it is worth noting that Sièyes adopted not an authorial, but rather an authorising or ratificatory view of constituent power. That is, as Rubinelli puts it, he:
maintained that the people, as holders of constituent power, authorise the constitution but do not create it themselves. Rather, they elect extraordinary representatives to write the constitutional text and, once the latter is ready, they ratify it, authorising its entrance into force. Hence, the exercise of constituent power does not coincide with the writing of the constitution, which is delegated to representatives, but with its authorisation and approval by the nation.Footnote 46
Similarly, indeed, Lenowitz has analysed a tradition of constituent power in the 18th century North American colonies which identified the constituent moment in ratification referendums, where the power lies in the approval rather than the drafting of constitutions.Footnote 47 On the one hand, while an authorising view of constituent power seems politically more realistic as an account of the role the people actually plays, it is difficult to understand how a relatively passive power of mere authorisation meets the demanding claims of ‘constituent’ power – a power that ostensibly has no antecedent or superior. This gap is sometimes filled through an unrealistic depiction of the framing process as itself being under popular control, specifically as the idea that ‘the right sort of framers in the right conditions can embody the majority will’.Footnote 48 And it is especially difficult to see this ‘authorisation’ as truly ‘constituent’ in the context of a constitutional-amendment referendum, as distinct from a ratification plebiscite, where typically the framers are ordinary representatives rather than specific constitution-framing delegates.
Regardless, it is the more ambitious authorial account of constituent power that is found in the judicial doctrines considered. And notwithstanding Sièyes’ relatively modest account of popular power, it is the ambitious authorial view that has nonetheless been absorbed and endorsed to a surprising extent in contemporary theoretical literature. Stephen Tierney, for example, argues that constitutional referendums are distinctive because they involve the determination, by the sovereign ‘people’, of both ‘constitutional identity’ and the ‘second-order rules’ for the legal system.Footnote 49 They are, he says, ‘conduits of popular determination’.Footnote 50
These kinds of analysis portray constitutional referendums, in particular, as being – at least potentially – a pure, originative, and especially an unmediated form of popular expression, of a kind that accordingly confers legitimacy on the constituted order that subsequently emerges. However, such analyses ignore the various ways in which referendums are mediated, orchestrated and constrained, the ways in which they are embedded within pre-constituted institutional processes, and particularly the ways in which the processes of referendum initiation undermine any claim for referendums to fulfil the extra-legal or originative claims of constituent power. While referendums might well express popular demands or influence, ultimately the voting ‘people’ cannot express itself independently of prior constraint, of intermediary bodies and initiative powers.
Indeed a critical, often overlooked question is that of the initiative power and its normative significance, of ‘who gets to call the referendum’Footnote 51 and thus of who controls the terms on which the people may speak. It seems that in Rousseau’s thought, for example, that power is itself a necessary facet of sovereignty, such that for popular sovereignty to exist, it must be possible for the people to regularly assemble itself. By contrast, ‘under contemporary political conditions that power rests not with the people at large but with their governments’.Footnote 52 Indeed Tierney acknowledges that under contemporary conditions, at least, ‘the people is too large and diverse a body to manifest itself without the intervention of representational forces’Footnote 53 – while Sièyes understands constituent power as being necessarily exercised by representation rather than directly.Footnote 54 But this makes such referendums difficult to understand as meaningfully being expressions of ‘constituent’ power. While Tierney suggests that at least some kinds of extraordinary plebiscites or constitution-framing votes involve the people transcending the ordinary processes of institutional mediation,Footnote 55 it is difficult to see how the extra-legality of a plebscitary process renders it as an authentically authorial exercise of popular power, given the intractable problems of representation and mediation that nonetheless arise, because of those mediating mechanisms that, far from giving the people direct voice, ‘may actually prevent [them] from expressing themselves clearly’.Footnote 56 The same problem arguably arises even where the initiative process itself is popularised, because the role of the people as such remains reactive rather than creative.Footnote 57 And much the same observations apply, in turn, to any innovations of democratic participation in the constitutional-revision process – such as Ireland’s experiment with Citizen’s AssembliesFootnote 58 – simply because democratic influence in the constitution-making process, no matter how necessary or significant, does not live up to the lofty authorial claims of the kind that are actually found in the judicial doctrines discussed.
While it may be arguable to what extent the people as such may gain an influential or even a co-authorial role with respect to the referendum-amendment process, its power in this context should, in any event, be firmly classified as a constituted one, as being embedded within a mixed constitution, as a highly checked and proceduralised power. It might even be best classified as an ad hoc constitutional legislature with negative legislative powers.Footnote 59 And once we understand the people as a ‘constituted’ authority within the established order of state power, referendums are, then, better understood not as an exercise of originative, authorial or creative power, but more modestly, as a checking mechanism by which the people exercise some measure of influence or control over the powers of intermediary bodies, executive and legislative, in the domain of constitutional change.Footnote 60 But crucially, this power, as benign as it might seem, hardly corresponds with any sense of ‘sovereignty’, whether it be a power to constitute or to command. Therefore, since the people is not meaningfully acting in a creative role in the amendment process, it appears that ‘sovereignty’ – when understood as a constituent power – offers a weak justification for excluding judicial review or other checks on the amendment proposal.Footnote 61
Sovereignty as unaccountability
I have argued that the conceptual grammar of constituent power offers a weak justification for attributing a ‘sovereign’ status to constitutional-amendment referendums, because such accounts exaggerate the degree of creative popular empowerment that constitutional referendums can offer. And conversely, if constitutional referendums are conceived of more modestly as a checking or limiting power – as constituted power within a mixed constitution – it seems this can hardly be understood as ‘sovereignty’ in the sense of supreme power.
Nonetheless, there is an alternative sense in which constitutional-amendment referendums can be understood as a ‘sovereign’ exercise. There is an alternative, lesser-theorised sense of sovereignty as a power which arises, and is exercised within the constitutional order itself, and which is defined by the finality and unaccountability of power. In this understanding, constitutional referendums are a ‘sovereign’ exercise not because they grant the people a ‘constituent’ or authorial power, but simply because their verdict is unaccountable, primarily in the sense that the verdict cannot be overturned by any authority, whether judicial or otherwise. This more modest understanding – of sovereignty as unaccountability – avoids both the awkward mythologies and foundation-myths associated with doctrines of constituent power, as well as the troubling absolutism or omnipotence associated with early-modern doctrines of ‘command’ sovereignty. It also leaves scope to retain some parallel understanding of a primordial or power-generative ‘sovereignty’, of a legitimating power than is antecedent or extra-legal, but that does not necessarily enter or guide juristic analysis.
Since at least the French revolution, popular sovereignty – in the repurposed form of constituent power – has, to a great extent, been typically associated with a creative power of founding a new order, and so, by the same measure, has been dissociated from ordinary processes of constituted government. And from this perspective, it arguably makes little sense, on the one hand, to translate popular sovereignty as a power of unfettered amendability within the established process of constitutional amendment, that is, within the constituted order. From this perspective, the amendment power seems to have little association with ‘sovereignty’, because of the ways in which it is legally proceduralised and constitutionally contained.
Is it possible, nonetheless, to make sense of unfettered amendability based on an older concept of sovereignty which is understood as a supreme or final power within the constituted order, rather than one of founding or creation? On the one hand, it is difficult to understand unfettered amendability based on a Hobbesian concept of sovereignty as supreme authority, given that unfettered amendability applies within a limited jurisdiction of constitutional amendment: it lacks the omnipotence associated with the Hobbesian sovereign. It is difficult to attribute the faculties of Hobbesian sovereignty to an undifferentiated, diffuse ‘people’ (as distinct from a popular assembly), partly because it dissolves the relation of authority between sovereign and subject, and partly for empirical and pragmatic reasons relating to the people’s incapacity to act in an executive sense.Footnote 62 Indeed the ‘sovereign’, in this Hobbesian tradition, is defined partly with reference to its authority over the people, as a response to the problem of order and authority.Footnote 63 Conversely on the other hand, the kind of omnipotence implicit in the Hobbesian sovereign is widely considered unsuited to the diffuse and complex structure of modern states, which lack a single pinnacle of authority. Rubinelli convincingly argues that, rather than viewing constituent power as a repurposed form of popular sovereignty, Sièyes actually understood it as supplanting outright an idea that he saw as archaic and unworkable – as posing a conceptual problem because it ‘implicitly entailed an absolute and unlimited understanding of political authority’.Footnote 64 It is in a not dissimilar spirit that Andrew Arato has tried to dissociate the theory of constituent power in constitution-making processes from the taint of Schmittian theories of legally unconstrained sovereign power.Footnote 65
However, within the history of thought of sovereignty it is worth distinguishing the idea of supremacy or omnipotence as such from a more subtle concept of finality or unaccountability in the exercise of a defined power. Take, for example, the (perhaps idiosyncratic) sense in which the British parliament is ‘sovereign’. It is a constituted authority – and subject, it is increasingly assumed, to the background authority of an inchoate popular sovereignty. And rather than being an omnipotent ruler, its ‘sovereignty’ applies only within a limited, legislative domain.Footnote 66
Arguably it is in a similar sense that the ‘people’, at least in jurisdictions like France and Ireland, is ‘sovereign’ in the constitutional-amendment context. Its power is pre-constituted, and its ‘sovereignty’ applies in a defined, relatively modest domain – in relation to the approval of legislative proposals for constitutional amendment. It is ‘sovereign’ in this sense because it serves as a final authority of constitutional lawmaking, since in the absence of judicial review, it is free of any form of accountability or oversight. The people is sovereign, in this context, due to its role at the end point of constitutional change rather than at its inception, as many theories of constituent power would suggest. Partly because the people enter the frame only at the end point of the constitutional-amendment process, they cannot meaningfully be assigned a power of creation, as opposed to more modest, reactive power of veto. But precisely for the same reason, this renders them sovereign in a different, and much more conceptually useful sense, in that they are designated as a locus of final authority within the constitutional order of the state.
This sense of sovereignty-as-unaccountability is arguably present not only in the formalised constitutional-referendum processes used in jurisdictions like France and Ireland, but also, less obviously, in the contested shape of the UK Constitution following the Brexit referendum. While the referendum outcome is strictly speaking advisory as a matter of law,Footnote 67 some scholars have argued that constitutional conventions have now emerged requiring both that referendums be held on certain matters, and that referendum verdicts be upheld by parliament.Footnote 68 (Although it is arguably parliamentary statute itself, and not constitutional convention, that has stipulated certain referendums as mandatory.Footnote 69) Popular ‘sovereignty’, in this view, is constitutionally – albeit not legally enshrined – because of the recognised unassailability of the referendum outcome. Parliament has been understood as ‘sovereign’ because of empirical patterns of official conduct that uphold the legal unassailability of statutes,Footnote 70 but similar patterns – the internalised obeisance of popular verdicts – may render the people ‘sovereign’ in a separate dimension and jurisdiction.
This idea of the sovereign people as being an arbiter, rather than an instigator, of constitutional change not only finds support in the history of political thought, but also better accords with the dynamics of modern politics, and particularly in the politics of referendum usage. O’Cinneide argues that popular sovereignty – although often used ‘as a purely symbolic signifier’ – is in some instances ‘left with a residual role as the final arbiter of serious constitutional crises’.Footnote 71 He cites, as an example, de Gaulle’s use of the referendum during the French decolonisation crisis. Yet this sense of the people as the final arbiter, rather than the originator of constitutional change is pertinent as much within the ordinary amendment process as it is in such extraordinary political moments. This applies notwithstanding the people’s purely negative legislative power, and its passive role that is activated at the discretion of other state organs. This arbitral, appellant and vetoing role is hinted at, for example, in the designation of the Irish people, in Article 6 of the Constitution, as ‘deciding all matters of national policy … in final appeal’. The same provision affirms that all powers of government ‘derive … from the people’; thus the people might both be a constituent sovereign in this abstract sense – an antecedent, extra-legal and foundational agent – as well as a constituted sovereign in the sense of enjoying an unaccountable ‘final say’ over constitutional amendments. Indeed ‘sovereignty’ might refer simultaneously to quite different legal and political statuses that operate in separate dimensions and domains. While there might be separately constituted popular sovereigns – constituted and constituent – a similar duality arguably operates in the UK Constitution, where traditional Diceyan orthodoxy regards the parliament as a legal, and thus a constituted, sovereign, but the people as sovereign in a separate ‘political’ domain that is not legally cognisable.Footnote 72 Indeed in the aftermath of the Brexit vote, Les Green suggests a distinction between parliamentary ‘sovereignty’ as an ‘institutional device’, on the one hand, and the foundational ‘moral ideal’ that popular sovereignty represents, on the other.Footnote 73 In a recent article, Loughlin and Tierney similarly refer to the ‘power-generative’ dimension of sovereignty that standard theories of parliamentary sovereignty are lacking.Footnote 74 And while parliamentary sovereignty as a procedural-institutional principle is separable from the originative, authorising moral force of popular sovereignty, similarly we might conclude that the ‘constituted’ institutional sovereignty of the people, of the kind I have analysed, is separable from its foundational moral – perhaps even its ‘constituent’ – claim. Thus my argument about constituted popular sovereignty is not inconsistent with Daniel Lee’s argument that popular sovereignty represents an ‘extraordinary or extralegal power’, held ‘in reserve’Footnote 75 – because this different sense of sovereignty may well coexist with the constituted version of sovereignty-as-unaccountability. While Arato argues that the theory of constituent power should be freed of the taint of sovereignty, I am in a sense arguing the reverse – that the theory of popular sovereignty, in the constitutional-amendment process, is better understood without reference to theories of constituent power that may, admittedly, have importance and relevance within other dimensions of, and for other purposes within, constitutional theory.
‘Constituted’ sovereignty without command
While my argument re-emphasises a form of constituted sovereignty as an analytical framework for constitutional theory, this is not to accept Kalyvas’ dichotomy between a ‘constituent’ sovereignty on the one hand, and a ‘constituted’ sovereignty, on the other, that he describes as ‘the traditional notion of sovereignty as the higher and final instance of command’.Footnote 76 My argument is partly that ‘constituted’ sovereignty need not rely on any understanding of the sovereign as having a power of ‘command’; it is even consistent with a certain kind of passivity or reactivity, and with ‘sovereignty’ being exercised as part of a process where other actors exercise initial discretion. Indeed if sovereignty arises or resides in the domain of constitutional change, the people can hardly ‘command’ a process that it does not itself initiate. Sovereignty can be dissociated from ‘command’ because, given the inevitably divided and dispersed nature of the decisional process – rendering impossible any single apex of authority – sovereignty, then, is expressed not in a crude idea of supremacy as such but rather in the finality and unaccountability of the sovereign’s judgement.
Finality, in this sense, refers to the impossibility of further appeal or review – except by the agent itself. In modern constitutions it is likely to be expressed primarily, although not exclusively, in a principle of non-justiciability of constitutional amendments. And this is consistent with the idea that sovereignty is not, crudely speaking, omnipotence or supremacy, but rather, something that emerges at the end-point rather than the inception of a decisional process. The people, in the constitutional-amendment process, is certainly subject to greater procedural constraints than the parliamentary ‘sovereign’ in the UK, since its legislative power is purely negative. However, if sovereignty is dissociated from omnipotence or supremacy per se, we can understand that the commonality between these parliamentary and popular sovereigns lies in their unaccountability albeit within a defined procedural jurisdiction.
Sovereignty, then, might reside simply in the finality of legislative power, notwithstanding its sometimes negative or reactive character. This sidesteps Maistre’s objection that the people ‘are a sovereign that cannot exercise sovereignty’,Footnote 77 as an entity that lacks faculties of intentionality, coherence and so on. If the people is a pre-institutionalised or pre-constituted power, such constraints seem self-evident. This model dissociates sovereignty from any idea of an absence of constraint simpliciter, whether in the constituent or constituted versions. And this also helps to dispel the traditional liberal and conservative objections to popular sovereignty not only as being conceptually incoherent, but as politically dangerous – for example in the Madisonian account – as a potential source of tyranny, despotism and so onFootnote 78 – as ‘spectacles of turbulence’.Footnote 79 Indeed it was this vaguely Hobbesian understanding of sovereignty, as encompassing faculties of command and supreme rule, that led post-revolutionary French theorists to vest sovereignty in the abstract ‘nation’ precisely to deny the real ‘people’ (or indeed any other agent) the kind of supreme political authority that Hobbesian sovereignty had entailed.Footnote 80 As Malberg noted, this stemmed from a concern to prevent ‘sovereign’ authority being located in any definite body or authority, however democratic.Footnote 81 As Schmitt similarly argues, theorists of the bourgeois Rechstaat sometimes located ‘sovereignty’ in the constitution itself, or more precisely in abstract norms of justice, so as to deprive the idea of any real political force.Footnote 82 Indeed, Lee claims that historically, assigning sovereignty even simply to the ‘people’ itself was a strategy of ‘risk avoidance’, of ensuring it was ‘depersonalized’.Footnote 83 As Rubinelli notes, Sièyes argued that the ‘royal superstitions’ of the ancien regime had vested the concept of sovereignty with ‘pompous attributes and absolute powers’ – thus ‘if the sovereignty of the great kings was so powerful and terrible, the sovereignty of a great people should be even more so’.Footnote 84
In another perspective, however, in the 18th century the idea of sovereignty itself had already been adapted, by Rousseau (and arguably much earlier, since Bodin), so as to recognise the impossibility of sovereignty as a crude idea of omnipotent rule. For Rousseau, in particular, sovereignty as a power was limited in that it applied to legislative and not executive matters, as a faculty not of ‘action’ but of ‘will’. While such conceptual evolutions recognise the dispersed decisional processes of modern states – without a single conclusive apex of power – they also explain the plausibility of a modest understanding of sovereignty as a jurisdictionally limited unaccountability, an unaccountability that is limited, in this case, to the domain of constitutional change.
And while this alternative account of constituted sovereignty is, on the one hand, better attuned to the polycentric character of the contemporary state, it also has historical roots dating to antiquity. These have perhaps been obscured by the ‘command’ model of sovereignty, ascendant in the early-modern period, that is associated with Hobbes to an extent, but especially, later, Bentham and John Austin, who both emphasised the sovereign’s capacity to coerce, in particular. By contrast, Hoekstra argues that the modern concept of sovereignty has important antecedents in the ancient Greek idea of tyranny, because both are understood in terms of unaccountability: the sovereign, like the tyrant, is the entity that is answerable to no other earthly or constituted agent.Footnote 85 The continuity between the ancient and modern account lies in the idea that sovereignty ‘must be immune from review, veto or punishment’.Footnote 86 And this is precisely the concept of sovereignty – the unaccountable authority of last resort, against whom no appeal is possible – that helps to make sense of the jurisprudence I have discussed. For Bodin, Hoekstra argues, the sovereign is unaccountable in that it is ‘above all but divine review and punishment’Footnote 87 – an understanding echoed in the ancient idea of tyranny. The faculties of tyranny, she argues, were not repudiated but rather appropriated by the Athenian ‘people’, when they deposed personal tyrants.Footnote 88 Again, in modern constitutional settings, this unaccountability is most likely to be translated as a principle of non-justiciability of popularly effected constitutional amendments, simply because constitutional courts are the most commonplace ‘check’ against popular or majoritarian power. However, it might also have other institutional translations – arguably, for example, in the positive duty of the British government and parliament (by constitutional convention) to effect the referendum decision of the British people.
Unaccountability without arbitrariness
This idea of the constituted popular sovereign as being defined by its unaccountability (or at least, its unaccountability within the state) might seem to contradict our understanding of what it means to be a constituted power. To be constituted usually means to be limited in some way – to draw one’s power from a limited legal mandate – while unaccountability suggests impunity or arbitrariness. And conversely, to be constitutionally limited in some way ostensibly seems inconsistent with the nature of ‘sovereignty’. Thus Eleftheriadis, for example, argues that ‘sovereignty … when taken seriously … is … the unlimited power to be free of any legal restriction, contrary to any doctrine of constitutional government or indeed the rule of law … If we take sovereignty seriously, we cannot have constitutional law’.Footnote 89
But unaccountability has a narrower meaning once we understand it as applying within a defined, restricted domain – say, within a procedurally constrained constitutional-amendment process. This mitigates what Arendt considered as the seemingly arbitrary quality of the constituent popular sovereign – the fact that ‘those who get together to constitute a new government are themselves unconstitutional’.Footnote 90 By contrast, the unaccountability of the constituted sovereign itself has a legal-constitutional mandate, precisely because it is not itself necessarily the expression of an originative, power-generative or ‘constituent’ claim. Therefore, although the sovereign people is unaccountable in the constitutional-amendment context in the sense that its decision cannot be challenged or appealed, this does not amount to arbitrariness in any meaningful way because unlike its constituent relation, the constituted popular sovereign has a procedurally limited jurisdiction – it can only pronounce in the context of a constitutional procedure which inevitably confers the power to initiate referendums on intermediary organs such as parliament. In fact, it is precisely this feature of constituted popular sovereignty that is distorted where the people – say, in the Irish and French jurisprudence – is sometimes depicted as having a freestanding creative role. Indeed where the sovereign people’s role is reactive or resistive in this sense, it defeats Maistre’s paradox – that of popular sovereignty making the people sovereign ‘over themselves’Footnote 91 – because ‘sovereignty’ in this sense is exercised over or against the constituted state organs, rather than the people themselves as subjects. Sovereignty, in this adjusted sense, is no longer a relation of submission between ruler and subject, and so the apparent contradictions of (constituted) popular sovereignty begin to dissolve. Far from entailing arbritrariness, with its images of chaos and disorder, the unaccountability of the people’s verdict provides for a principled locus of decisional finality, and thus potentially for stability, in the matter of constitutional form.
Post-revolutionary French theorists, conscious of Jacobin excesses, reworked or adapted popular sovereignty so as to ‘reconceptualise the people’s supremacy in terms of the popular authorization of government rather than the immediate retention of power in the hands of the multitude’.Footnote 92 Crucially, however, this ‘authorization’ may be understood as having a reactive or resistant character – not dissimilar from the historical sense of resistant sovereignty detailed by Daniel Lee – rather than as having a mythologically ‘constituent’ force.Footnote 93 And while this power is in some ways a contained and highly modest one, it gives the ‘people’ a concrete role in real politics, rather than relegating to the background, ethereal role of ‘constituent’, as essentially an ideological legitimatorFootnote 94 (even though, as I have argued, this ‘constituent’ sense of sovereignty may well have some parallel, separate role). Of course, recourse to constitutional referendums may be discretionary, not just in the ad hoc British constitutional framework that allowed the Brexit vote, but also in a more typical codified system such as France’s, where the parliamentary-amendment route is available as an alternative. And while this discretionary use of the popular constitutional-amendment route may seem inconsistent with its purportedly ‘sovereign’ character, constitutional conventions may have emerged, especially in the UK, requiring that referendums are held on certain kinds of constitutional change – particularly the divestment of governmental powers infranationally or supranationally.Footnote 95
Walker argues that ‘our modern notion of sovereignty derives from the medieval figure of the sovereign – the ruler who holds absolute authority over his subjects and who is under no legal obligation to any higher power’.Footnote 96 Effectively, then, my argument is that a suitably ‘modern’ concept of ‘constituted’ sovereignty can be based on the latter component of unaccountability, while omitting the component of absolutism or omnipotence.
Conclusion
Neil Walker has already argued that ‘much of the contemporary confusion … over sovereignty’ stems from ‘a failure to distinguish between sovereignty as a deep framing device for making sense of the modern legal and political world … and the particular claims which are made on behalf of particular institutions, agencies, rules, or other entities to possess sovereignty’.Footnote 97 Essentially I have sought to develop this claim by applying it to the jurisprudence of constitutional referendums. I do not claim to dismiss outright the value of constituent power, which may have some value as a conceptual device, historical and political, for understanding constitutional creation and legitimacy. Rather, my argument, in one sense, is that we should disaggregate different senses of popular sovereignty that might be applied to constitutional law. Within constitutional jurisprudence, the people must be understood as a constituted authority with a defined, and necessarily limited jurisdiction which is dissociated from the omnipotence and extra-legality implied by constituent power. And it is through this adjusted, more modest concept of sovereignty that we might make sense of a principle of unfettered constitutional amendability. Theories of constituent power, then, have served to obscure the only meaningful sense of popular sovereignty in the constitutional-amendment process. Equally, this suggests that Kalyvas’ dichotomy of ‘constituent’ and ‘command’ sovereignty need not be understood as exhaustive. The people cannot be understood as ‘sovereign’, in the constitutional-amendment process, by virtue of possessing an imagined power of constitutional authorship or creation. However, to meaningfully be understood as sovereign, neither need it possess faculties of omnipotence or command within the constituted order. Rather, its sovereignty lies solely in the unaccountability and finality of its voice.
