The Referendum in the French Constitution: Limits and Consecration of Popular Sovereignty

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[...] To what extent can it be said that the referendum constitutes a corrective to the representative regime? The referendum is defined as 'the voting by which the electoral body expresses its opinion or will on a measure that a political authority has taken or intends to take'1. The use of this procedure therefore translates a desire to make the citizen participate, in an active way, in political life. Thus, the referendum can only be admitted in regimes that recognize political pluralism and base power in the people. [...]

[...] II) The referendum: a limited consecration of popular sovereignty The admission of the referendum as a mode of expression favoring a better citizen involvement in public affairs has always raised concerns. In addition to being considered as a possible tool for manipulating people, the referendum is among the processes likely to weaken representative democracy. It is for this reason that this mode of expression has been organized in such a way as to introduce certain limits relating, on the one hand, to the initiative of the referendum and, on the other hand, to its field of intervention The initiative of the referendum The initiative in referendum matters makes it possible to measure the effectiveness of the implementation of this mode of expression. [...]

[...] The referendum can, in this sense, present a plebiscitary risk 'as soon as a positive response is presented as a manifestation of confidence in the author of the question'2 The Constitution of the Fifth Republic was promulgated following the constitutional referendum of 28 September 1958 proposed by President of the Republic René Coty and Charles de Gaulle, then Prime Minister under the Fourth French Republic. Although the virtues of the referendum are widely acknowledged, it remains that this procedure continues to inspire fear in the defenders of the representative regime. However, the latter continues to demonstrate signs of exhaustion as evidenced by the waves of popular protests currently affecting France, particularly the yellow vests movement. The question then arises as to how far one can assert that the referendum constitutes a corrective to the representative regime? [...]

[...] Thus, in the case of the legislative referendum, Article 11 of the French Constitution provides that the initiative must come either from the government or from parliament. When the initiative comes from the government, Article 11 provides that 'it makes, before each assembly, a declaration that is followed by a debate.' The same article specifies that if the initiative is of parliamentary origin, the Senate and the National Assembly vote jointly on a motion aimed at submitting to the President of the Republic a proposal to hold a referendum on a bill. [...]

[...] In fact, it was practiced in Athens in a sustained manner because the imaginary of direct democracy in the city implied a recognition of citizens to a real decision-making power, notably through the choice of laws to which they decide to submit themselves. The referendum as a technique of participatory democracy was defended by the thinkers of the Enlightenment, it is indeed the writings of Jean-Jacques Rousseau that inspired the drafters of the French Constitution of 1793. Going so far as to allow the people to oppose a law through the popular veto, considered an advanced form of referendum. [...]