The Robbins Collection is pleased to host Professor Richard Albert, William Stamps Farish Professor of Law at the University of Texas at Austin to Berkeley Law, for his talk, “Discretionary Referendums in Constitutional Amendment: A Comparative Perspective.” Professor Albert focuses his research on constitutional amendment from comparative, doctrinal, historical and theoretical perspectives. The talk will be in R230 in the North Addition of Berkeley Law on Thursday, March 14, from 12:50-2:00PM.
The unexpected results of recent referendums around the world have concealed an important similarity among many of them: the referendums were not constitutionally required. For example, the Constitution of the United Kingdom does not require a referendum to authorize Brexit nor does the Colombian Constitution require one to ratify the FARC peace pact. Yet in both cases incumbents felt compelled by political imperatives to forego the settled rules of constitutional change in order to bring their reform proposals directly to the people. This is not a rare practice: historically and recently, leaders have often had recourse to referendums by choice rather than constitutional obligation as part of a larger strategy to legitimate a major constitutional change. In this paper, I draw from various non-obligatory referendums held around the world to develop a typology of discretionary referendums in constitutional amendment. I also examine why constitutional actors use discretionary referendums to amend the constitution and I situate their use against the backdrop of an increasingly observable phenomenon in democracies: the circumvention of formal amendment rules. This occurs when constitutional actors deliberately bypass the formal rules of constitutional change to amend the constitution, with recourse not only to referendums but to other modalities of constitutional change.
Lunch provided, space limited.