The People Cannot Choose a Constitution: Constituent Power's Inability to Justify Ratification Referendums

The ratification referendum is the most common and recommended means of concluding a constitution-making process. This paper questions its desirability by undercutting the procedure's most popular justification: to provide a means for the popular sovereign, the constituent power, to enter the constitution-making process and make the constitution its own. I argue that this justification fails because taking popular authorship seriously in the one-shot setting of constitution making requires that citizens be capable of understanding and evaluating the constitution, and we should expect voters, through no fault of their own, to lack the technical and complex information needed to do so. If there are good reasons to submit constitutions to referendums, these do not include those that hand wave toward the importance of popular sovereignty. Either the procedure should be dropped from constitution-making best practices, or a new more convincing justification needs to be given.