'Deliberative referendums': Locating citizens at the heart of constitutional design and reform

This paper examines the process of constitutional design and reform, a process that has become more centred on citizens through the use of referendums to give citizens the right to vote on the matter, and – more recently – through the insertion of deliberative processes, which give small groups of citizens a more prominent role in the debates preceding the referendum vote. Prominent examples of this latter development (which Parkinson (2018) refers to as ‘constitutional deliberation’) include the citizens’ assembly-led debates over electoral reform in the Canadian provinces of British Columbia and Ontario in the early 2000s (Fournier et al. 2011), or the constitutional debates starting in the second decade of this century in such European countries as Iceland, Ireland, Luxembourg, the Netherlands, and Romania (and, indeed, the EU’s Conference on the Future of Europe in 2021-22), but also constitutional review processes further afield, such as in Chile, Colombia, Cuba, Egypt and Tunisia (Reuchamps and Welp 2024; Blocker and Gül 2024). The analysis in this paper is set in terms of the democracy problems that motivate, or arise with, constitutional design and reform. Central to this is the need to ensure proper democratic legitimacy through including citizens in votes on the constitutional rule or amendment as well as in the debates preceding that moment of decision; it is also important that such processes are appropriately connected with the legacy institutions where powers of decision are located. These two problems frame the remainder of the paper. Drawing on real-world examples of how deliberative processes are used in processes of policy and/or constitutional debates, the paper proceeds to (1) examine the different ways in which deliberative innovations can interact with referendums in a constitutional review process, and (2) consider the connections between the democratic innovations and legacy institutions. The paper concludes with a discussion about the potential of ‘deliberative referendums’ (Hendriks and Wagenaar 2023), and how to achieve a sweet spot in the connections both between the two democratic innovations as well as between them and the legacy institutions.