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Constitutional ReferendumsThe Theory and Practice of Republican Deliberation$
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Stephen Tierney

Print publication date: 2012

Print ISBN-13: 9780199592791

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199592791.001.0001

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The Referendum Challenge to Constitutional Sovereignty

The Referendum Challenge to Constitutional Sovereignty

(p.129) 5 The Referendum Challenge to Constitutional Sovereignty
Constitutional Referendums

Stephen Tierney

Oxford University Press

This chapter considers a situation where the very constitutionality of holding a referendum is itself in question. It explores how at the heart of a number of disputes has been the claim that a particular referendum is in fact a constitutive act of popular sovereignty, which even if structured outside the normal pathways of constitutional process that otherwise might proscribe or at least closely circumscribe such an act, offers its own and, so the argument goes, higher source of constitutional legitimacy. Two examples of this situation are addressed. One is a separation of powers struggle, where one branch of government initiates a referendum in a way that threatens to supplant the existing balance of powers among institutions established by the constitution. The other is territorial disputes, which can arise in federal or even unitary states between the central organs of the state and sub-state actors.

Keywords:   constitutionality, referendum, popular sovereignty, separation of powers, territorial disputes

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