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National Referenda and the U.S. Constitution

One interesting aspect of the Brexit decision was that it involved a legally nonbinding referendum. The UK Parliament was not legally bound to follow the result, but nearly everyone accepts the result, with a statement like, the people have spoken and we have to follow it. I think part of the reason for this is that prior to the vote, it was recognized that this decision would be decisive, even though it was technically nonbinding. Thus, it would be morally illegitimate not to follow the decision because one did not like the result. Keith Whittington makes a similar point about the ratification conventions at the time of the Constitution.

Would it be constitutional for the United States to hold a similar nonbinding referendum? Let’s imagine that the U.S. was faced with a decision that would be consistent with the Constitution — say deciding whether to withdraw from NATO or the UN or the WTO. It is clear that some political actor — whether the Congress or the President or the President and the Senate, depending on the circumstances — would have the authority to make this decision. Could there be a nonbinding referendum held on the matter?

The principal issue is whether Congress would have an enumerated power to establish the referendum. I believe that it would. Let’s assume that the issue is whether to withdraw from NATO and that the President was the political entity with the authority to make the decision. Congress could then argue that it would be helpful for the President, in making his decision, to know what the American people thought of the issue, and therefore there should be a referendum. Congress could then argue that this referendum was necessary and proper to carrying into execution the President’s authority under the Constitution.

This seems like the correct constitutional argument here. It is analogous to Congress deciding to authorize a public opinion poll on the same issue.

Of course, if Congress were authorizing the referendum (or the public opinion poll) in order to delegate the decision to the American people, then one might argue it was not necessary and proper to an enumerated power. But so long as Congress argues that it is simply acquiring the information to help the President make his decision, then the referendum would seem to be constitutional.

Reader Discussion

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on June 27, 2016 at 13:11:07 pm

Is it really necessary?

I would argue against the referendum unless for some unusual reason it is necessary. Congress and the President are in office to make those kinds of decisions on our behalf. Our vote for our representatives is our referendum, so it would be unlikely that a public opinion poll is really necessary.

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Scott Amorian
on June 27, 2016 at 17:13:55 pm

I appreciate the opinion but hope unconstitutionality would prevent its occurrence.

First, it seems in opposition to the preamble to the constitution for the USA, which asserts that willing people in their states " ordain and establish" the USA.

Second, Article 11, Section 2, Article II, Section 2,Article 1, Section 8, Clauses 12 and 13 and Article I, Section 8, Clause 10 seem to assign the pertinent responsibilities. Nothing is left to the states, and by all means, northing is left to the people.

Federalist 51 and moreover Federalist 10 protect the minority from the majority and the majority from a minority. Thus, the people are protected from democracy.

Article IV Section 4 guarantees every state and thus all the people a republican form of government. Any act to convert the USA to a democracy would be unconstitutional.

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Phil Beaver
on June 27, 2016 at 18:04:28 pm

1. Is the Brexit vote binding in practice? I expect so—but many have hypothesized otherwise. As an initial matter, Britain has to make a formal declaration under Article 50 of the Lisbon Treaty in order to trigger the two-year period for exiting the European Union. Nobody in the current administration wants to touch that with a 10-foot pole, because they have deep concerns that Brexit will be a disaster and they don’t want their fingerprints on it. So instead, they’re resigning—perhaps in October.

In the meantime, what do we observe? Both the Pound Sterling and the stock markets have tanked. Brexit advocates now acknowledge that Brexit will not free up massive funds to shore up the National Health Service, and likely will not impede the flow of foreign workers. Meanwhile, there’s been a rash of racist incidents even against British nationals who happen to have been born elsewhere. Oh, and both Scotland and Ireland are gearing up to abandon ship and jump back onto the Continent.

So what happens if, by the time Britain actually installs a new Prime Minster, the Brexit has become widely regarded as a disaster and the public is in full-blown buyer’s remorse? Which party wants to actually pull the trigger and be forever associated with this doomed policy?
In that scenario, I could imagine Downing Street wanting to study the crap out of the issue. Put together so many panels that it will trigger a nation-wide shortage of blue ribbon. After all, haste makes waste.

Hey, it’s a scenario.

2. Is a national referendum constitutional?. Yeah, I’d guess so, just as any fact-finding exercise might be, If Congress has the power to commission a poll, it has the power to commission a referendum.

Is a national referendum desirable? Yes and no—or no and yes. No, it would represent one more collapse of the traditional mechanisms that the Founders created to insulate public policy from direct democracy. But yes, politicians would value having one more mechanism by which to evade responsibility for making decisions.

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nobody.really
on June 28, 2016 at 10:12:33 am

Yep, there it is again, rearing it's ugly head: Racism! why, of course, what else could it be.
Ask any question - And the answer is: Racism.

Could it have something to do with the EU deciding that a banana must have a certain curvature in order to be sold as a banana - or that a nation state may no longer have control over it's own borders; or that it's Parliament must play second fiddle to a bevy of bureaucrats isolated, distant and unconcerned with the customs and traditions of its component states?

Naaawwwhhh! _ it is racism, pure and simple.

And perhaps, it is good that Scotland may withdraw from the UK - it does nothing but soak up British monies. Yet, in point of fact, Scottish politicians are considering whether to use their voting power in Parliament to STOP Brexit. Gee, what does that say?

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gabe
on June 28, 2016 at 11:18:38 am

[T]here’s been a rash of racist incidents even against British nationals who happen to have been born elsewhere.

Yep, there it is again, rearing it’s ugly head: Racism! why, of course, what else could it be.
Ask any question – And the answer is: Racism.

Could it have something to do with the EU deciding that a banana must have a certain curvature in order to be sold as a banana – or that a nation state may no longer have control over its own borders; or that it’s Parliament must play second fiddle to a bevy of bureaucrats isolated, distant and unconcerned with the customs and traditions of its component states?

Naaawwwhhh! _ it is racism, pure and simple.

From Slate’s story, Wave of Racist, Xenophobic Incidents After Brexit Vote Has U.K. Worried:

More than 100 incidents “of racial abuse and hate crime” have been reported since Thursday’s vote, according to the Independent. Many of those incidents had the perpetrators reference the vote explicitly to justify the violence.

In Hammersmith, West London, xenophobic graffiti was found at the entrance of the Polish Social and Cultural Association on Sunday morning. Although the police wouldn’t comment on what the graffiti said, Twitter users said it read, “Go Home.” Police are also investigating reports that laminated cards that read “Leave the EU/No more Polish vermin” were distributed in Huntingdon, including outside an elementary school.

Yeah, banana regulations—that explains everything.

Scotland and Ireland are gearing up to abandon ship and jump back onto the Continent.

Scottish politicians are considering whether to use their voting power in Parliament to STOP Brexit. Gee, what does that say?

Maybe that Scots voted against Brexit, and their elected representatives are representing them? (Is this a trick question?)

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nobody.really
on June 28, 2016 at 11:30:10 am

I have no doubt that SOME Brexit types engaged in the type of conduct you describe.
The problem is that all too often we then use these isolated examples to tar with the same brush all those who voted for Brexit as those knuckleheads who appear to be expressing some rather distasteful opinions.
Would you similarly highlight the anti-semitism of Jesse Jackson, Al Sharpton, etc.? and thus paint all *activists* as anti-Semitic.

The goose and the gander, isn't it?

And always it is "racism" behind any political movement or expression that does not fit in the with the elite (or elite wannabes) conception of reality.

One grows weary of it.

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gabe
on June 28, 2016 at 11:34:16 am

And from an earlier piece here at LLB:

A writer for the Leftist New Stateman was expressing a more general view when he put it this way: “this was never a referendum on the EU. It was a referendum on the modern world, and yesterday the frightened, parochial lizard-brain of Britain voted out, out, out.” By rejecting the idea that the EU should grow “ever closer,” the British are rejecting the vision of History as a project of moving beyond a Europe of particular nations and toward the ancient vision of Europe as a unified state. Only “lizard-brained” reactionaries, who reject modernity itself reject the progressive view, otherwise known as “common sense,” the conceit goes. - See more at: http://www.libertylawsite.org/2016/06/27/everything-will-change-everything-has-changed-a-brexit-symposium/#sthash.kesuc2HD.dpuf

And what could be more *lizard brained* than racism, right?

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gabe
on June 28, 2016 at 11:57:04 am

And just for the sheer fun of it there is this:

http://thefederalist.com/2016/06/28/watch-brexit-architect-nigel-farage-curb-stomp-the-entire-eu-parliament/

Racists, indeed!

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gabe
on June 28, 2016 at 17:13:10 pm

"Yeah, banana regulations—that explains everything." Now that is one of the truer comments you have made. It DOES explain EVERYTHING!

As one who appreciates *nuance*, I am surprised that you did not appreciate the banana reference.

EU bureaucrats action to regulate curvature of bananas is indicative of a) their disdain for the common peoples ability to make a sensible decision as to what fruit to buy and b) a predisposition toward *accommodating* those corporate interests that have allied themselves with the Brussels elite.

Cui bono?

Do you not appreciate the nuance of a tightly crafted bureaucratic regulation which is intended to benefit one party over another? Is it any wonder that the Multinationals, with their own core of "nuanced drafters" available to the EU, were against Brexit?

No, one must, or at least ought to, acknowledge that the petri dish of corruption is seeded with the *nuance* of deftly drafted bureaucratic regulations - as is the ambition of the power seeking government functionary.

So again, I am glad that you recognized the explanatory power of the banana reference.
As for me, I like 'em green. Thank goodness, Washington D.C. still allows me to buy them green.

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gabe
on June 28, 2016 at 20:28:01 pm

And finally (after several cold beers and much work in the gardens) there is this which will explain EVERYTHING as apparently nobody. really desires:

http://i2.wp.com/www.powerlineblog.com/ed-assets/2016/06/EU-Cabbage-Regulations-copy.jpg

How *nuanced* is the regulation on cabbages, my good friend. I wonder: Can a proper label, detailing ALL of the elements / characteristics / requirements of EU defined *good* cabbage be affixed to a head of cabbage. The only head I know of big enough to affix this label to is thast of Barack Hussein Obama and his accolytes!

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.