[Editor’s Note: This is the fourth entry in our symposium on Sunday’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. The introduction to our symposium is available here.]
—Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh; Author of (OUP, 2012)
And so here we are again: a major constitutional issue in Europe reaches its culmination in a dramatic moment of direct democracy which usurps established constitutional understandings with the raw manifestation of what purports to be constituent power. The Crimea status referendum in 2014, the independence referendum in Scotland of the same year, the United Kingdom’s ‘Brexit’ referendum in 2016 and now the Catalan referendum on independence, each in its own way confronting established understandings of where constitutional supremacy rests. And this challenge is present not only in the fundamental nature of the issue at stake but also in the process itself – bringing ‘the people’ to the fore in a way that deeply unsettles the medium through which constitutional practice is typically construed and conducted: institutional representation.
Much has been written about the internal constitutional issues at stake in the Catalan referendum, assessing these from different perspectives (e.g. , and ). I do not intend to comment on the constitutionality or legitimacy of the process or to focus upon the Catalan situation specifically. Instead I take the vote on 1 October as simply the latest example of how the referendum continues to proliferate as a constitutional decision-making mechanism and how poorly the referendum, as a now critically important arena of constitutional practice, is both articulated by and accommodated within the established parameters of mainstream constitutional theory. The Catalan referendum as part of the recent tendency towards ad hoc exercises in direct democracy presents constitutional theorists with two significant challenges: one relating to monist certainties about the nature of the demos, the other concerning the conceptualisations of constitutional sovereignty and complacent assumptions about the default and de facto supremacy of constitutional form over popular democracy.
The proliferation of the referendum is now emerging as perhaps the most challenging constitutional development of our time.