Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law. He is also Deputy Head of the Law School.
He has held a British Academy Senior Research Fellowship and an ESRC Senior Research Fellowship. He is currently a Senior Fellow of the Centre of Constitutional Change which has attracted approximately £5,000,000 in grant funding over the past four years.
He is co-editor of the United Kingdom Constitutional Law blog and a member of the Executive Committee of the UK Constitutional Law Association. He also serves as Legal Adviser to the House of Lords Constitution Committee and is a member of the Judicial Appointments Board for Scotland. He previously served as Constitutional Adviser to the Scottish Parliament Independence Referendum Bill Committee in 2013-14.
Current Research Interests
Professor Tierney teaches and researches on UK and comparative constitutional law and constitutional theory. He is committed to research impact and engages widely with government, parliamentary committees and the media on issues such as devolution, referendum law and Brexit.
Professor Tierney has recently won anESRC Brexit Priority grant with two colleagues to study ‘The repatriation of competences: implications for devolution’. This will address how powers returning from Brussels will be located within the UK’s devolved constitution. The project will involve a number of outreach events for government and parliamentary officials and other interested stakeholders.
He has published 9 books including two monographs with Oxford University Press: Constitutional Law and National Pluralism and Constitutional Referendums: The Theory and Practice of Republican Deliberation. He is currently writing a third book for OUP on Federalism and editing a book on Federalism and the UK with Robert Schutze.
Professor Tierney’s two senior research fellowships:
- · British Academy/Leverhulme Senior Research Fellow 2008-2009 (the project: 'Let the People Decide: Referendums in a Post-Sovereign Age'),
- · ESRC Senior Research Fellowship 2013-15 to study the Scottish independence referendum.
He has held visiting professorships: in International Law at Seton Hall Law School, New Jersey (2010 and 2011) and in Political Theory at Pompeu Fabra University in Barcelona (2010) and (2015).
Areas of work
- · UK and Scottish constitutional law and devolution
- · comparative constitutional law
- · federalism and the study of multi-level states
- · theories of democracy and the use of referendums
- · the UK constitution after Brexit
Professor Tierney would welcome engagement with other scholars interested in these areas and enquiries from research students keen to pursue work in any of these fields.
Public Law and Individual Rights (Ordinary) (Course Organiser)
Public Law of the UK and Scotland (Ordinary) (Course Organiser)
The Changing Constitution (Honours) (Course Organiser)
Kenneth Campbell 'The role of the Scottish 'settlement' in the emergence of constitutional laws and Britain's 'unwritten' constitution.'
Leonardo Andres Cofre Perez 'The structure of participatory democracy for local governance in unitary states: the case of Chile'
Pablo Grez Hidalgo 'Distribution of Powers Between the Executive and the Parliament in Lawmaking: The case of Chile'
Books and Reports
Stephen Tierney, Nationalism and Globalisation, (Hart Publishing, 2015)
Abstract: This book addresses a seemingly paradoxical situation. On the one hand, nationalism from Scotland to the Ukraine remains a resilient political dynamic, fostering secessionist movements below the level of the state. On the other, the competence and capacity of states, and indeed the coherence of nationalism as an ideology, are increasingly challenged by patterns of globalisation in commerce, cultural communication and constitutional authority beyond the state. It is the aim of this book to shed light on the relationship between these two processes, addressing why the political currency of nationalism remains strong even when the salience of its objective ... independent and autonomous statehood ... becomes ever more attenuated.The book takes an interdisciplinary approach both within law and beyond, with contributions from international law, constitutional law, constitutional theory, history, political science and sociology. The challenge for our time is considerable. Global networks grow ever more sophisticated while territorial borders, such as those in Eastern and central Europe, grow seemingly more unstable. It is hoped that this book, by bringing together areas of scholarship which have not communicated with one another as much as they should, will help develop an ongoing dialogue across disciplines with which to better understand these challenging, and potentially destabilising, developments.
Stephen Tierney, Katie Boyle, An Independent Scotland: The Road to Membership of the European Union, (ESRC Scottish Centre on Constitutional Change, 2014)
Stephen Tierney, Evidence Submitted to the House of Lords Select Committee on the Constitution Inquiry: Scottish Independence: Constitutional Implications for the Rest of the UK, (ESRC Scottish Centre on Constitutional Change, 2014)
Stephen Tierney, The Referendum in Multi-level States: Fracturing or Fostering Federal Models of Government?, (Federal Idea: A Quebec Think Tank on Federalism, 2014)
Abstract: This paper will categorise the proliferation of the referendum, discussing the different ways in which they have played a role in processes of state-collapse and state-restructuring in federal and other multi-level states. Is it the case that referendums act as a destabilising force in federal states by bringing to the surface the existence of multiple political communities within the state, and by giving each of these the capacity to make constitutional demands by way of a direct voting process which can also at the same time build national sentiment at the sub-state level? Certainly the referendum story of the former Union of Soviet Socialist Republics (USSR) and Socialist Federal Republic of Yugoslavia (SFRY) is one of collapse, but this is not the whole story; the referendum has also been used to build multi-level systems of government, for example, in Spain and the UK, albeit that the stability of these systems is a constant source of debate.
Stephen Tierney, Accession of an Independent Scotland to the European Union: A View of the Legal Issues, (ESRC Scottish Centre on Constitutional Change, 2013)
Abstract: Briefing Paper.
Stephen Tierney, Silvia Suteu, Towards a Democratic and Deliberative Referendum?: Analysing the Scottish Independence Referendum Bill and the Scottish Independence Referendum (Franchise) Bill, (Scottish Independence: A Democratic Audit Project, 2013)
Abstract: This is the report of proceedings of a one day workshop organised by the Edinburgh Centre for Constitutional Law at Edinburgh Law School on 5 April 2013
Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberation, (Oxford University Press, 2012)
Abstract: The use of referendums around the world has grown remarkably in the past thirty years and, in particular, referendums are today deployed more than ever in the settlement of constitutional questions, even in countries with little or no tradition of direct democracy. This is the first book by a constitutional theorist to address the implications of this development for constitutional democracy in a globalizing age, when many of the older certainties surrounding sovereignty and constitutional authority are coming under scrutiny.- The first full-length analysis of constitutional referendums, examining their democratic legitimacy and growing role in modern constitutional politics.- Provides a full analysis of the issues involved in referendum design, aiding constitutional lawyers and theorists working on the creation and operation of referendums. - Presents a diverse range of case studies to provide a comprehensive, inter-disciplinary account of the issues in political theory and legal and political practice which surround the recent proliferation of referendum use.
Jo Shaw, Stephen Tierney, Neil Walker, Europe’s Constitutional Mosaic, (Hart, 2011)
Abstract: This book emerged from an extended seminar series held in Edinburgh Law School which sought to explore the complex constitutional arrangements of the European legal space as an inter-connected mosaic. There has been much recent debate concerning the constitutional future of Europe, focusing almost exclusively upon the EU in the context of the (failed) Constitutional Treaty of 2003-5 and the subsequent Treaty of Lisbon. The premise of the book is that this focus, while indispensable, offers only a partial vision of the complex constitutional terrain of contemporary Europe. In addition, it is essential to explore other threads of normative authority within and across states, embracing internal challenges to state-level constitutional regimes; the growing jurisprudential assertiveness of the Council of Europe regime through the ECHR and various democracy-building measures; as well as Europe's ever thicker relations, both with its border regions and with broader international institutions, especially those of the United Nations. Together these developments create increasingly dense networks of constitutional authority within the European space. This fluid and multi-dimensional dynamic is difficult to classify, and indeed may seem in many ways impenetrable, but that makes the explanatory challenge all the more important and pressing. Without this fuller picture it becomes impossible to understand the legal context of Europe today or the prospects of ongoing changes. The book brings together a range of experts in law, legal theory and political science from across Europe in order to address these complex issues and to supply illustrative case-studies in the topical areas of the constitutionalisation of European labour law and European criminal law.
Stephen Tierney, Emilios Christodoulidis, Public Law and Politics: The Scope and Limits of Constitutionalism, (Ashgate Publishing, 2008)
Abstract: In a critical engagement with the function of public law and with constitutionalism in its political dimensions, this volume brings together the reflections of three leading constitutionalists: Martin Loughlin, James Tully and Frank Michelman. Comprising three critical commentaries on each, it addresses the multiple ways in which public law is implicated in the logic of rule. This operates on the one hand in maintaining and underwriting relative patterns of power and weakness through political structures and processes. On the other hand, public law is considered to contain the potential to redress these patterns through the use of constitutional authority, social and economic as well as civil and political rights, redistribution of political power, the expansion of territorial governance, and moves to supra-state levels of authority. The book reproduces, in a succinct and organized way, the insights into both the limitations and the potentialities of public law within its political setting.Contents: Public law and politics: rethinking the debate, Emilios Christodoulidis and Stephen Tierney; Part 1 On 'The Idea of Public Law': Sovereignty and the idea of public law, Stephen Tierney; Authority, exploitation and the idea of public law, Scott Veitch; Public law as political jurisprudence: Loughlin's 'idea of public law', Emilios Christodoulidis; Reflections on The Idea of Public Law, Martin Loughlin. Part 2 Public Law and Imperialism: On law, democracy and imperialism, James Tully; Democracy, political reflexivity and bounded dialogues: reconsidering the monism-pluralism debate, Hans Lindahl; The reframing of law's imperial frame: a comment on Tully, Neil Walker; Imperialism and constitutionalism, Gavin W. Anderson. Part 3 Public Law and Proceduralism: Constitutionalism as proceduralism: a glance at the terrain, Frank Michelman; The crisis of im/purity, Johan van der Walt; Between engagement and disengagement: 2 concepts of civility, Ioannis A. Tassopoulos; Enabling proceduralism, Victor Tadros; Index.
Stephen Tierney, Multiculturalism and the Canadian Constitution, (University of British Columbia Press, 2007)
Abstract: Canada has often been cited internationally for its success as a multicultural society and for its ability to manage this diversity through a federal constitution. The strands of diversity include the constitutional relationship between English and French Canada, federalism more generally, the status of Aboriginal peoples, Canada’s immigration and integration strategies, affirmative action, and a general guarantee of equal protection to men and women. Together they tell a complex story of pluralism, consolidated through a long and incremental period of constitution-building. Multiculturalism and the Canadian Constitution brings together scholars of cultural diversity from backgrounds in law, political science, and history to address key components of the changing Canadian story: the evolution over time of multiculturalism within Canadian constitutional law and policy; the territorial dimension of Canadian federalism; and the role of constitutional interpretation by the courts in the development of Canada as a multicultural state. Wide-ranging and provocative, the essays illustrate how deeply multiculturalism is woven into the fabric of the Canadian constitution and the everyday lives of Canadians. Stephen Tierney is Reader in Law at the University of Edinburgh. Contributors: Daniel Bourgeois, Marc Chevrier, Robert J. Currie, Jameson W. Doig, Katherine Eddy, Hugh Donald Forbes, Andrew F. Johnson, Hugh Kindred, Will Kymlicka, Ian Peach, Joan Small, and Michael Temelini.
Stephen Tierney, Accommodating Cultural Diversity, (Ashgate Publishing, 2007)
Abstract: This book explores recent developments in the theory and practice of accommodating cultural diversity within democratic constitutional orders. It brings together philosophers and legal scholars to explore the inter-play between the normative precepts advanced by the former for the accommodation of cultural pluralism and the reality of that accommodation as it plays itself out in political and legal practice, as explained by the latter. The aim of the book is to provide a holistic picture of the constitutional management of cultural diversity through the prisms of different disciplines and experiences: theoretical and practical. Contributions come from Canada, Scotland and England and concentrate on two main case studies: a substantive study of the accommodation of indigenous peoples within different constitutional orders and, secondly, the role of the courts as their approach to cultural diversity evolves in complex pluralist democracies such as Australia, Canada and the UK.
Stephen Tierney, Colin Warbrick, Towards an International Legal Community?: The Sovereignty of States and the Sovereignty of International Law, (British Institute of International and Comparative Law, 2006)
Abstract: This collection of essays on the theory of international law addresses the question whether, in light of contemporary legal, economic and political challenges which the state faces, state sovereignty can continue to be viewed meaningfully as a legal principle, the legitimacy of which is generated merely by the factual condition of a state's existence; or whether in fact the international legal system is now better viewed as a self-generating and increasingly sovereign force, founded upon an incipient 'international legal community' which has in large measure redefined state sovereignty as a lower order principle both contingent upon and attenuated by the normative authority inherent in this nascent 'community'. Can we now speak of international law as an embryonic 'quasi-constitutional' system, generated by an international legal community? If so, has this community, although finding its historical origins in the aggregated will of states, assumed a new and immanently-generated legitimacy which is no longer dependent upon state consent for its validity and authority?
Stephen Tierney, Constitutional Law and National Pluralism, (Oxford University Press, 2005)
Abstract: Over the past thirty years, sub-State national minorities in a number of developed liberal democracies have both reasserted their cultural distinctiveness and demanded recognition of it in legal and political terms. This phenomenon has been the subject of considerable study by sociologists, political scientists, and political theorists. This book differs by offering a study of the consequences of these rights claims for legal systems. It examines the role played by law, especially constitutional law, in the negotiation of the complex relationships and competing rights claims involving the State, national minorities, and other groups and individuals within the State. This book addresses the constitutional issues, both in theory and in practice, that accompany the existence of national diversity in pluralist democracies. Tierney contends that the democratic plurinational state, characterized by the presence of more than one national group within the State, is a discrete category of multi-level polity which defies the standard classifications of liberal constitutionalism. Building upon this theoretical basis, this book then focusses upon recent developments toward the institutional accommodation of Catalonia, Quebec, and Scotland. Tierney examines the legal issues which arise from the challenges posed by national minorites within multinational democracies, to the constitutional and institutional structures of particular States, and also to some of the fundamental precepts of democratic constitutional theory and practice.
Stephen Tierney, Accommodating National Identity: New Approaches in International and Domestic Law, (Kluwer Law International, 2000)
Abstract: This collection of essays brings together international lawyers with their perspectives on how the international community has coped with contemporary cases of nationalist crisis and constitutional lawyers from states which are attempting to facilitate the political expression of national identity through developments in federalism, devolution, and the protection of minority rights. The aim is to explore to what extent existing legal mechanisms permit a flexible engagement with, and accommodation of, the aspirations of national and ethnic groups. It would appear that a heightened level of fluidity in the interaction and exchange of normative standards now exists in the relationship between international and domestic law as both types of system confront the challenge which national identity continues to constitute. As this process marks a renewed preparedness on the part of legal systems to expand imaginatively to meet current problems it is hoped that this collection will highlight opportunities for an ongoing process of development in this complex and troubled area.
Elisenda Casanas Adam, Dimitrios Kagiaros, Stephen Tierney, 'Democracy in question? Direct democracy in the European Union ', (2018), European Constitutional Law Review, Vol 14, pp 261-282
Abstract: Challenges posed to European integration by exercises of direct democracy at the national or sub-state level – EU response to referendums on internal constitutional matters – Greek, Scottish and Catalan referendum processes -Resilience of state nationalism and the complex pluralisation of identities below the level of the state
M. Loughlin, S. Tierney, 'The shibboleth of sovereignty ', (2018), Modern Law Review, Vol 81, pp 989-1016
Abstract: Sovereignty is the central tenet of modern British constitutional thought but its meaning remains misunderstood. Lawyers treat it as a precise legal concept-the doctrine of parliamentary sovereignty-but commonly fail to acknowledge that that doctrine is erected on a skewed sense of what sovereignty entails. In particular, they do not see that the doctrine rests on a particular political conviction, that the British state depends on a central authority equipped with an unlimited power. These two facets of sovereignty are now so deeply intertwined in legal consciousness that they cannot easily be unravelled and this becomes the main barrier to thinking constructively about Britain’s constitutional arrangements. This article substantiates these claims by explaining how the doctrine came into being, demonstrating how it is tied to a deeper political conviction, showing that its political underpinnings have been considerably weakened over the last century, and indicating how its re-working is the precondition of constitutional renewal. © 2018 The Author. The Modern Law Review and 2018 TheModern Law Review Limited.
Stephen Tierney, 'Direct Democracy in the United Kingdom: Reflections from the Scottish Independence Referendum', (2015), Public Law, Vol 4, pp 633-651
Abstract: Assesses the democratic merits of the Scottish independence referendum of 18 September 2014 and the lessons it offers for future referendum initiatives. Considers how two criticisms levelled at referendums in general, that they are vulnerable to elite control and tend to aggregate pre-formed opinions instead of promoting meaningful deliberation, apply to the Scottish referendum. Discusses how it compares with other UK referendums.
Stephen Tierney, 'Towards a Federal United Kingdom?: Lessons from America', (2015), Political Insight, Vol 6, pp 16-19
Abstract: As the debate about further devolution deepens, Stephen Tierney looks at the American model of federalism and asks whether the UK is heading in a federal direction.
Stephen Tierney, 'Reclaiming politics: Popular democracy in Britain after the Scottish Referendum', (2015), Political Quarterly, Vol 86, pp 226-233
Abstract: Referendums are often criticised for being elite-controlled and undeliberative. This article argues that the detailed, multiactor regulation of the Scottish referendum resulted in an elaborate legal regime which helped to overcome these potential pathologies, diluting executive control and facilitating an exercise in national public engagement. It addresses the troubled history of referendum use in the UK and contends that the Scottish process may well transform how referendums are now viewed. Indeed, one outcome of the Scottish process is likely to be a greater demand at UK level for the use of direct democracy in processes of significant constitutional change. It is by no means certain, however, that these demands for greater popular engagement in the process of constitutional change will be met, particularly when we consider the Smith Commission process, which marks a return to elite interparty bargaining.
Stephen Tierney, 'Popular constitutional amendment: Referendums and constitutional change in Canada and the United Kingdom', (2015), Queen's Law Journal, Vol 41, pp 41-72
Abstract: The referendum has been sparingly used at the national level in both the United Kingdom and Canada. In these states, referendums are more common at the provincial and sub-state level, where the dramatic issue of secession has been bound up with direct democracy. This article argues that referendums on secession are, in some sense, in a category of their own in how they present the referendum as an expression of constituent power. The author compares sovereignty referendums held in Quebec, particularly that of 1995, with the 2014 Scottish independence referendum. Constitutional silence in both countries on the issue of secession has meant that the referendum enters the amendment process as a wild card, requiring the Supreme Court of Canada to confront the fundamental values of the Constitution and leading the UK Government to concede the principle of secession in relation to Scotland. The constituent nature of secession referendums also establishes a challenge to those advocating the use of such referendums to prove that they satisfy fundamental democratic credentials such as due process. Here, the Scottish independence referendum offers lessons to Canada on good practice. In a more prosaic context, the Canadian referendum experience is also instructive, with its experiments in deliberative democracy that preceded the referendums on electoral reform in British Columbia and Ontario. The article compares the benefits of these provincial citizens' assembly processes with the much more "top-down" referendum on electoral reform in the UK in 2011. In both countries, the referendum is a dramatic outlier in the constitutional amendment process. It brings citizens to the front and centre of constitutional decision making. For this reason, efforts within Canada to equip citizens with the deliberative tools necessary to make these fundamental decisions are innovative and instructive. It may be that referendums are in fact better used in issues of the most fundamental constitutional importance, but it is also in these events that the full engagement of citizens, which has been bravely attempted at the Canadian provincial level, would appear to be most acutely needed.
Stephen Tierney, 'Sovereignty and Crimea: How Referendum Democracy Complicates Constituent Power in Multinational Societies', (2015), German Law Journal, Vol 16, pp 523-541
Abstract: This article examines the specific issue of the referendum as an instrument in the re-ordering of territory, specifically in the context of the secession of Crimea from Ukraine.The article maps how in recent decades independence referendums have proliferated and considers how the Crimean situation exposes the deep pathology of uncertainty in international law and its understanding of self-determination, exposing the referendum as a dangerous outlier. The principle of democracy, present already in the context of Kosovo's unilateral independence, and which forced the hand of Canada and the UK to accommodate secessionist aspirations, is a growing feature of international legal discourse, and one which suggests that the referendum is likely to remain a potential trump card to which nationalists will appeal to overcome both constitutional impediment sand the black hole of international law in the path toward statehood.
Stephen Tierney, 'The Referendum on Scottish Independence: A Process as well as an Event', (2014), Edinburgh Law Review, Vol 18, pp 245-50
Stephen Tierney, 'Whose Political Constitution?: Citizens and Referendums', (2013), German Law Journal, Vol 14, pp 2185-96
Abstract: One notable feature about the debate between 'liberal' and 'political' constitutionalism has been its elite focus. The courts and the legislature are discussed in efforts to determine the appropriate role of each in processes of constitution-framing and changing. But this task is often set up implicitly as a zero-sum game. Although it might be claimed that citizens are tangentially relevant to this power struggle, a detailed account of whether citizens should, and how they might, play a direct role in constitutional authorship is seldom, if ever, placed on the table. This paper considers the elite orientation of this debate, questioning whether this is in normative terms acceptable, and in empirical terms credible, particularly as we consider how, over the past three decades, the referendum has emerged as an important vehicle for constitutional change in so many states.
Stephen Tierney, 'Legal Issues Surrounding the Referendum on Independence for Scotland ', (2013), European Constitutional Law Review, Vol 9, pp 359-90
Abstract: The 2014 referendum: Towards a consensual process – The Edinburgh Agreement: framing the referendum process – Process rules and key issues – After the referendum: Scotland's status under international law – Secession under international law – Membership of international organisations, especially the European Union
Stephen Tierney, 'The People's Last Sigh?: European Referendums and the End of the State', (2012), European Public Law, Vol 18, pp 683-700
Abstract: The proliferation in the use of referendums in processes of accession to and ratification of European Union treaties is part of a growing trend towards direct democracy in constitutional decision-making. This article addresses the challenge which this important and under-theorized feature of contemporary politics poses for constitutionalism, many of the empirical and indeed normative precepts of which are built upon the implicit presupposition of an exclusively representative model of government and law-making. An important question, made more pressing by this development, is whether constitutional referendums can be truly democratic as an instrument of republican government. The article seeks to explore how referendums on EU integration complicate the democratic issue. This occurs partly by the ways in which referendums cast light on the democratic defects of the EU constitution-making process itself and partly by how they raise the thorny issue of the demos by bringing back the people in direct and vernacular contributions to what is otherwise supposed to be a post-national constitution-building project.
Stephen Tierney, 'Federalism in a Unitary State: A Paradox too Far?', (2009), Regional & Federal Studies, Vol 19, pp 237-53
Abstract: This paper takes the devolution settlements in the UK as a model of accommodation of territorial diversity, with a focus mainly upon devolution to Scotland. It is argued that the Scotland Act 1998, while in many ways a coherent attempt to meet the demands of national diversity, may also, paradoxically, contain elements that in the long run have the potential to destabilize the UK. We address the non-federal model that has been used to manage the plurinational UK, highlighting certain elements of this ad hoc arrangement which seem useful to the management of pluralism and others which seem to exacerbate the risk of secessionism.
Stephen Tierney, 'A New Wave of Constitutional Reform for the UK? ', (2009), European Public Law, Vol 15, pp 289-99
Stephen Tierney, 'Constitutional Referendums: A Theoretical Enquiry', (2009), Modern Law Review, Vol 72, pp 360-83
Abstract: In recent decades the use of referendums to settle major constitutional questions has increased dramatically. Addressing this phenomenon as a case study in the relationship between democracy and constitutional sovereignty, this article has two aims.The first is to argue that these constitutional referendums are categorically different from ordinary, legislative referendums, and that this has important implications for theories of constitutional sovereignty. Secondly, the article suggests that the power of these constitutional referendums to re-order sovereign relations raises significant normative questions surrounding the appropriateness of their use. The article engages with these normative questions, enquiring whether the recent turn in republican political theory towards deliberative democracy may over a model through which sufficiently democratic referendum processes can be constructed.
Stephen Tierney, 'Beyond the Ontological Question: Liberal Nationalism and the Task of Constitution-Building', (2008), European Law Journal, Vol 14, pp 128-37
Abstract: One of the most interesting stories of the past 20 years has been the extent to which nationalism has been the focus of intense debate by liberal political philosophers. As Wayne Norman suggests in Negotiating Nationalism, it is now useful to take stock and assess where this flurry of activity has taken us, and in doing so we can set his book in the context of two waves of work. The first involved philosophers in challenging complacent misconceptions concerning the nature of the state and of national identity that had been allowed to embed themselves in liberal democratic theory. As Norman puts it: ‘Philosophers in the “first wave” were faced with the burden of proving that it was not impossible to be a liberal and a nationalist at the same time’. 1 In this respect the first part of Norman’s book is largely a retrospective account setting his ideas in the context of those scholars of nationalism whose work has come to be known as ‘LiberalismII’. 2 This school emerged in response to developments in political practice, in particular the emergence of strong nationalist movements in what have come to be known as ‘multinational’ or ‘plurinational’ states such as Belgium, Spain, the UK and Canada.3 Indeed it is no surprise that many of the theorists of the new school of liberalism—including Norman himself—are Canadian, with their theoretical work developing in an environment of intense political dispute between Quebec and the rest of Canada.
Stephen Tierney, 'Giving with One Hand: Scottish Devolution within a Unitary State', (2007), International Journal of Constitutional Law, Vol 5, pp 730-53
Abstract: This essay employs Scottish devolution as a prism through which to examine two public policies used to manage national diversity: accommodation and integration. While an accommodationist discourse can certainly capture many of the substantive constitutional outcomes sought by substate national societies, it may not provide the symbolic recognition that will articulate fully a plurinational concept of the state. Following from this, the essay focuses on the tension at the heart of the Scotland Act 1998. In terms of its autonomy provisions and the recognition these imply, the act may be seen as a genuine attempt to redefine the United Kingdom's constitution in a plurinational direction. However, in other ways, the structure of the settlement embodies strong integrative tendencies that sustain the categorical distinction between host state national society, on the one hand, and substate national societies, on the other. Finally, it is observed that the expanding powers of the European Union may restrict efforts to reorient the state in a plurinational direction, since many devolved powers of substate nations and regions are subject to the normative supremacy of parallel levels of EU competence.
Stephen Tierney, 'Peter C Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada and New Zealand ', (2007), Edinburgh Law Review, Vol 11, pp 290-93
Stephen Tierney, 'Reflections on the Evolution of Language Rights ', (2006), Supreme Court Law Review, Vol 31, pp 1-25
Stephen Tierney, 'Determining the State of Exception: What Role for Parliament and the Courts?', (2005), Modern Law Review, Vol 68, pp 668-72
Stephen Tierney, Stuart Toddington, 'Of Gubernaculum and Jurisdictio: Retrieving a Modernist Conception of Public Law', (2005), King's Law Journal, Vol 16, pp 209-15
Abstract: Stephen Tierney and Stuart Toddington debate 'The Idea of Public Law' by Martin Loughlin.
Stephen Tierney, 'Reframing Sovereignty: Sub-State National Societies and Contemporary Challenges to the Nation-State', (2005), International and Comparative Law Quarterly, Vol 54, pp 161-83
Stephen Tierney, 'Beyond Cultural Relativism: Rethinking the Human Rights Debate', (2004), Juridical Review, pp 75-102
Stephen Tierney, 'English Public Law and Constitutional Change ', (2004), European Public Law, Vol 10, pp 209-19
Victor Tadros, Stephen Tierney, 'The Presumption of Innocence and the Human Rights Act ', (2004), Modern Law Review, Vol 67, pp 402-34
Abstract: There has recently been a proliferation of case law dealing with potential inroads into the presumption of innocence in the criminal law of England and Wales, in the light of article 6(2) of the European Convention on Human Rights. This article is concerned with the nature of the presumption of innocence. It considers two central issues. The first is how the courts should address the question of when the presumption of innocence is interfered with. The second is the extent to which interference with the presumption of innocence may be justified on the grounds of proportionality. It is argued that the courts have not developed the appropriate concepts and principles properly to address these questions.
Stephen Tierney, 'The Search for a New Normativity: Thomas Franck, Post-Modern Neo-Tribalism and the Law of Self-Determination', (2002), European Journal of International Law, Vol 13, pp 941-60
Stephen Tierney, 'Convention Rights and the Scotland Act: Redefining Judicial Roles', (2001), Public Law, pp 38-49
Stephen Tierney, 'Constitutionalising the Role of the Judge: Scotland and the New Order', (2001), Edinburgh Law Review, Vol 5, pp 49-72
Abstract: The extensive process of constitutional reform which is presently being undergone in the UK will fundamentally alter the way in which the body politic is thought about and talked about, leading in time to a new constitutionalism. In the course of this development a more central role is promised for the courts as judges are called upon to interpret and develop these changes. In addition, judges will be required to reconsider their own part in this process and to assess the legitimacy of the courts as presently constituted to meet these new challenges. In the past two years these developments have been most keenly felt in Scotland with the establishment of devolved government. This article will examine some of the early cases involving devolution issues in Scotland which have already impacted on the judicial role in two main respects. The first involves the task of judicial self definition, whereby judges evaluate the extent to which they themselves satisfy the requirements of due process in terms of two related matters: judicial impartiality and judicial independence. The second element of the judicial role which has been called into question is concerned not so much with procedural fairness but more with the substantive aspects of constitutional adjudication: in other words, with how judges confront the task of balancing the competing interests between individual and state and between centre and devolved unit which emerge from the new constitutional arrangements. The article will conclude by considering the extent to which changes in the self-definitional or due process elements of the judicial role connect to questions about the substantive role the courts ought to play in modelling and refining constitutional change itself.
Stephen Tierney, 'Devolution Issues and s.2(1) of the Human Rights Act ', (2000), European Human Rights Law Review, Vol 4, pp 380-92
Abstract: Devolution cases challenging Scottish Executive on human rights grounds, particularly extent to which Scottish courts are taking account of Strasbourg jurisprudence and application of margin of appreciation and proportionality doctrines.
Stephen Tierney, 'Human Rights and Temporary Sheriffs ', (2000), Edinburgh Law Review, Vol 4, pp 223-28
Stephen Tierney, 'The Labour Government and Reform of the House of Lords ', (2000), European Public Law, Vol 6, pp 506-16
Stephen Tierney, 'Constitutional Reform: The Labour Government's Constitutional Reform Agenda', (2000), King's Law Journal, Vol 11, pp 284-91
Stephen Tierney, 'In a State of Flux: Self-determination and the Collapse of Yugoslavia', (1999), International Journal on Minority and Group Rights, Vol 6, pp 197-233
Abstract: This article revisits the collapse of Yugoslavia and the impact which the recognition policy of the European Community at the time may have had upon the international law of self-determination. It begins with an overview of the principle of self-determination and of its internal and external dimensions. It reviews briefly the history of the principle in particular its 'colonial' model. The article then chronicles the collapse of Yugoslavia and analyses the importance of human rights and the principle of democratic government in the recognition policy applied by the EC. It concludes that the application of new recognition criteria by the Community may have helped reshape the meaning of self-determination as an international legal right.
Stephen Tierney, 'Editor's Note ', (1999), International Journal on Minority and Group Rights, Vol 6, pp 7-8
Abstract: Special Double Edition of the 'International Journal on Minority and Group Rights'
Stephen Tierney, 'The Extradition Case against Pinochet Ugarte ', (1999), European Public Law, Vol 5, pp 500-13
Stephen Tierney, 'Press Freedom and Public Interest: The Developing Jurisprudence of the European Court of Human Rights', (1998), European Human Rights Law Review, Vol 4, pp 419-29
Stephen Tierney, 'The Human Rights Bill: Incorporating the European Convention on Human Rights into UK Law', (1998), European Public Law, Vol 4, pp 299-311
Stephen Tierney, 'England - Constitutional Reform under the New Labour Government ', (1997), European Public Law, Vol 3, pp 461-73
Stephen Tierney, 'New Zealand's Request for an Examination of the Situation in accordance with Paragraph 63 of the Court's 1974 Judgment in the Nuclear Tests Case (New Zealand v France) ', (1996), The International Journal of Marine and Coastal Law, Vol 11, pp 87-94
Stephen Tierney, 'European Citizenship in Practice?: The First Annual Report of the European Ombudsman', (1996), European Public Law, Vol 2, pp 517-29
Stephen Tierney, 'Collective Identities and the Limits of Liberalism: The Rights of Minority Cultures (ed. Will Kymlicka (OUP 1995))', (1996), Canadian Journal of Law and Society, Vol 11, pp 273-78
Silvia Suteu, Stephen Tierney, 'Squaring the circle? Bringing deliberation and participation together in processes of constitution-making ' in Ron Levy, Hoi Kong, Jeff King, Graeme Orr (ed.) The Cambridge Handbook of Deliberative Constitutionalism (Cambridge University Press 2018) 282-294
S. Tierney, 'Federalism and constitutional theory ' in G Jacobsohn, M Schor (ed.) Comparative Constitutional Theory (Edward Elgar Publishing 2018) 45-65
Ailsa Henderson, Stephen Tierney, 'Can referendums foster citizen deliberation? The experience of Canada and the United Kingdom ' in Michael Keating, Guy Laforest (ed.) Constitutional Politics and the Territorial Question in Canada and the United Kingdom (Palgrave Macmillan 2018) 159-177
Abstract: Both Canada and the United Kingdom have used referendums, albeit sparingly, to resolve constitutional issues, including proposals for the independence of Quebec (1980 and 1995) and Scotland (2014). The procedure was different in each case. In Scotland, the legality and procedure for the referendum was agreed by both the UK and Scottish governments and the question evaluated by an independent body and then accepted by both sides. Both sides promised to respect the result. This was not the case in Quebec. In the UK the principle that a simple majority was sufficient was accepted, which it was not in the Quebec case, partly because Quebec contains national minorities. In both cases, the question put was whether or not to accept the proposition (independence in Scotland and ‘sovereignty’ in Quebec), when opinion polls showed strong support for an intermediate position. The advantage of the Scottish option, of an agreed question, is that attention during the campaign was focused on the merits of the issue, rather than the meaning of the question.
Stephen Tierney, 'Federalism and the plurinational challenge ' in Amnon Lev (ed.) The Federal Idea (Hart Publishing 2017)
Stephen Tierney, 'Referendums in the United Kingdom and the European Union Challenging federalism?' in Michael Keating (ed.) Borders, Sovereignty and Self-Determination in Contemporary Europe (IBEI - Institut Barcelona d'Estudis Internacionals 2017)
Stephen Tierney, 'Brexit and the English question ' in Federico Fabbrini (ed.) The Law and Politics of Brexit (Oxford University Press 2017) 95-114
Abstract: The chapter examines Brexit and the English question, arguing that Brexit should be understood as a result of the ongoing demotic process in England. As Tierney explains, the UK is an asymmetric system. England alone constitutes population-wise almost four-fifths of the UK. This has influenced devolution: while since the 1990s power has transferred outwards towards the devolved nations, England herself has never received equivalent constitutional autonomy, or recognition, within the UK. Proposals for regional devolution within England, transferring powers to nationwide cities, have also failed. the recent introduction within the House of Common of the principle ‘English Votes for English Laws’-allowing only MPs elected in English constituencies to vote on laws concerning England alone, thus overcoming the well-known West Lothian question-is also an inadequate response to ever-increasing nationalistic views. To address this situation post-Brexit, Tierney concludes that constitutional reform is necessary, entrenching a coherent system of intergovernmental relations.
Stephen Tierney, 'Misconceiving federalism Canada and the federal idea' in Richard Albert, David R Cameron (ed.) Canada in the World (Cambridge University Press 2017)
Stephen Tierney, 'The Scottish Independence Referendum A model of good practice in direct democracy?' in Aileen McHarg, Tom Mullen, Alan Page, Neil Walker (ed.) The Scottish Independence Referendum (Oxford University Press 2016)
Stephen Tierney, Katie Boyle, 'A Tale of Two Referendums Scotland, the UK and Europe' in Patrick J. Birkinshaw, Andrea Biondi (ed.) Britain Alone! (Wolters Kluwer 2016) ch 2
Stephen Tierney, 'Enlightening federalism The practical philosophy of James Tully' in Dimitri Karmis, Jocelyn Maclure (ed.) Civic Freedom in an Age of Diversity (McGill-Queen's University Press 2016)
Stephen Tierney, 'Sub-State Nations and Strong States The Accommodation Impasse?' in Stephen Tierney (ed.) Nationalism and Globalisation (Hart Publishing 2015) 55-72
Stephen Tierney, 'Nationalism and Globalisation New Setting, New Challenges' in Stephen Tierney (ed.) Nationalisation and Globalisation (Hart Publishing 2015) 1-18
Stephen Tierney, D. Karmis, F. Rocher, 'Building trust through deliberative democracy The constitutional referendum in plurinational democracies' in Trust and Mistrust in Plurinational States (GRSP 2015)
Stephen Tierney, '"We Have an Arrival Time, We Need a Destination" The Runaway Train of Constitutional Change' in Beyond Smith (Future of the UK and Scotland, Centre on Constitutional Change, University of Edinburgh 2014) 53-55
Stephen Tierney, 'Flexible Accommodation Another Case of British Exceptionalism' in Jaime Lluch (ed.) Constitutionalism and the Politics of Accommodation in Multinational Democracies (Palgrave Macmillan 2014) 159-179
Stephen Tierney, 'Question 11: The Constitution of an Independent Scotland? What will it contain? How will it be made?' in Charlie Jeffery, Ray Perman (ed.) Scotland's Decision (Birlinn 2014) 55-59
Stephen Tierney, 'Narrow Constitutional Formalism British Toxin, Canadian Antidote?' in Le nouvel ordre constitutionnel canadien (Presses du l'Universite du Quebec 2013)
Stephen Tierney, 'Le formalisme constitutionnel strict la toxine britannique, l'antidote canadien?' in François Rocher, Benoît Pelletier (ed.) Le nouvel ordre constitutionnel canadien (Presses de l'Université du Québec 2013)
Stephen Tierney, 'The Nation as 'The Public' The Resilient Functionalism of Public Law' in Cormac Mac Amhlaigh, Claudio Michelon, Neil Walker (ed.) After Public Law (Oxford University Press 2013) 151-67
Abstract: This chapter focuses on the ‘resilient functionalism’ of public law in continuing to support the important relationship between the nation and the state. It begins by outlining the functionalism of public law in its broadest sense, tracing its historical development as a discrete subject. Secondly, it explores further how public law's primary role in the modern era has been to facilitate the relationship between national identity and the state. And thirdly, it offers empirical evidence to defend the ‘resilience thesis’ and the ongoing importance of public law as facilitator of the continuing, albeit changing, relationship, between nation, national identity, and state.
Stephen Tierney, ''The Three Hundred and Seven Year Itch' Scotland and the 2014 Independence Referendum' in Matt Qvortrup (ed.) British Constitution: Continuity and Change (Hart Publishing 2013) 141-52
Stephen Tierney, 'Rights versus Democracy? The Bill of Rights in Plurinational States' in Colin Harvey, Alex Schwartz (ed.) Rights in Divided Societies (Hart Publishing 2012) 11-32
Stephen Tierney, 'The Long Intervention in Kosovo A Self-Determination Imperative?' in James Summers (ed.) Kosovo: A Precedent? (Brill 2011) 249-78
Stephen Tierney, 'El Regne Unit com a estat multinacional ' in Miquel Caminal Badia, Ferran Requejo Coll (ed.) Federalisme i plurinacionalitat (Institut d’Estudis Autonòmics, Barcelona 2009) 383-422
Stephen Tierney, 'Giving with One Hand Scottish Devolution within a Unitary State' in Sujit Choudhry (ed.) Constitutional Design for Divided Societies (Oxford University Press 2008) 438-60
Stephen Tierney, 'Crystallising Dominance Majority Nationalism, Constitutionalism and the Courts' in A. Gagnon, A. Lecours, G. Nootens (ed.) Dominant Nationalisms (Univerity of Montreal Press 2008) 87-110
Stephen Tierney, Emilios Christodoulidis, 'Public Law and Politics Rethinking the Debate' in Stephen Tierney, Emilios Christodoulidis (ed.) Public Law and Politics (Ashgate Publishing 2008) 1-14
Stephen Tierney, 'Sovereignty and the Idea of Public Law ' in Emilios Christodoulidis, Stephen Tierney (ed.) Public Law and Politics (Ashgate Publishing 2008) 15-26
Stephen Tierney, 'Sub-state Nations and the Constitutional State Embedding Normative Principles within a Plurinational Constitution' in Democracy, Citizenship and Territoriality (Oñati Institute 2008)
Stephen Tierney, ''We the peoples' Balancing constituent power and constitutionalism in plurinational states' in Martin Loughlin, Neil Walker (ed.) The Paradox of Constitutionalism (Oxford University Press 2007) 229-46
Abstract: This chapter addresses the challenge to state authority from the perspective of sub-state nationalism. It develops the argument in relation to such ‘plurinational’ states as Belgium, Canada, Spain, and the United Kingdom, and asks how sub-national movements might find constitutional voice, whether such voice is likely to affirm or compromise their ‘constituent’ autonomy, and, more generally, whether and in what circumstances the relationship between the constituent potential of sub-state and state demoi might be conceived in either zero-sum or positive-sum terms.
Stephen Tierney, 'Cultural Diversity Normative Theory and Constitutional Practice' in Stephen Tierney (ed.) Accommodating Cultural Diversity (Ashgate Publishing 2007) 1-14
Stephen Tierney, 'Spectre at the Feast Parliamentary Sovereignty and the Union Settlement of 1998' in Isabelle Bour, Antoine Mioche (ed.) Bonds of Union (Presses Universitaires Francois Rabelais 2007) 191-206
Stephen Tierney, 'Reframing Sovereignty Sub-state National Societies and Contemporary Challenges to the Nation-state' in Neil Walker (ed.) Relocating Sovereignty (Ashgate Publishing 2006)
Stephen Tierney, 'Reflections on the Evolution of Language Rights ' in André Braën, Pierre Foucher, Yves Le Bouthillier (ed.) Languages, Constitutionalism and Minorities (University of Ottawa Press, Canada 2006) 3-27
Stephen Tierney, 'Scotland and the Union State ' in Aileen McHarg, Tom Mullen (ed.) Public Law in Scotland (Avizandum 2006) 1-19
Stephen Tierney, 'Questioning Authority The Normative Challenge in Forging an International Community' in Stephen Tierney, Colin Warbrick (ed.) Towards an International Legal Community? (British Institute of International and Comparative Law 2006) 1-16
Stephen Tierney, 'Sub-state National Societies and Participation in Supranational Integration ' in P. Bilancia (ed.) Federalismi e Integrazioni Sopranazionali Nell’arena Della Globalizzazione (Universitá degli Studi de Milano 2006) 131-59
Stephen Tierney, 'Sub-state Nations in a Unitary State Mobilising Law for a Devolved Scotland' in Pierre Noreau (ed.) Appartenances, institutions et citoyenneté (Wilson and Lafleur, Quebec 2005) 161-74
Stephen Tierney, 'Scotland, Devolution and Human Rights ' in Iain Cameron (ed.) Good Governance (University of Uppsala Press, Sweden 2004) 6-16
Stephen Tierney, 'The Constitutional Accommodation of National Minorities in the UK and Canada Judicial Approaches to Diversity' in Alain-G. Gagnon, Montserrat Guibernau, Francois Rocher (ed.) Conditions of Diversity in Multinational Democracies (Institute for Research on Public Policy, Canada 2004) 169-206
Stephen Tierney, 'Constitutionalising the Role of the Judge Scotland and the New Order' in Alan Boyle, Chris Himsworth, Hector L. MacQueen, Andrea Loux (ed.) Human Rights and Scots Law (Hart Publishing 2002) 57-81
Stephen Tierney, 'The Road Back to Hell The International Response to the Crisis in Kosovo' in Stephen Tierney (ed.) Accommodating National Identity (Kluwer Law International 2000) 89-130
Stephen Tierney, 'The Changing Constitution American Constitutional Amendment and the Limits of Article V' in Mads Andenas (ed.) The Creation and Amendment of Constitutional Norms (British Institute of International and Comparative Law 2000) 1-34
Stephen Tierney, 'The Multi-Option Referendum: International Guidelines, International Practice and Practical Issues' 2013
Abstract: This is a paper prepared by Stephen Tierney on 10 August 2012 and sent to the Scottish Government Head of Elections Team, Mr Stephen Sadler. The paper offers an account of the practical issues surrounding the framing of a two question referendum in the broader context of multi-option referendums in general.
Stephen Tierney, 'Legal Issues Surrounding the Referendum on Independence for Scotland ' 2013
Abstract: On 18 September 2014 a referendum will be held in Scotland. It will pose the following question to the people: "Should Scotland be an independent country?". If a majority of voters say "Yes" to this proposition, Scotland will withdraw from the United Kingdom (UK), ending a union formed in 1707 and offering an unclear future for one of Europe’s oldest nation states. The significance of this process for other European States and for the European Union (EU) project itself is also considerable. Never before has part of an EU Member State broken away while simultaneously seeking to remain a member of the EU as a new State. Important questions arise. The UK is an important member; would its influence within the EU diminish with the loss of an important part of its territory and territorial waters? Will Scottish independence offer encouragement to other highly mobilized sub-state nationalist movements in Belgium and Spain for example, while providing a precedent for access to international and European institutions for secessionist territories? These questions are political in nature and rather than attempt to answer them directly, this paper will address the legal context which must condition how such questions are addressed. We will look first at the domestic constitutional situation in the United Kingdom. It is notable that an intergovernmental agreement has been reached by the UK and Scottish Governments setting out a framework for the process rules which will govern the referendum. This is itself remarkable. The UK Government has entered consensually, if somewhat reluctantly, into a process which could lead to the break-up of the State, a level of acquiescence which is itself unprecedented in the EU context. We will consider the key elements of the referendum process which are being set out in detailed legislation by the Scottish Parliament, assessing the prospects for a fair constitutional referendum. Secondly, we will turn to the possible implications of a majority Yes vote for Scotland and the United Kingdom under international law. Would Scottish independence be characterized by the international community as a case of secession or as bringing about the dissolution of the UK? What challenges would Scotland face in seeking recognition as a new State and in succeeding to the UK’s international obligations? And, most crucially, how would an independent Scotland come to take up membership of international institutions, in particular the United Nations and the EU?
Stephen Tierney, 'Flexible Accommodation: Another Case of British Exceptionalism?' 2013
Abstract: This paper reviews the devolution arrangements within the United Kingdom in historical perspective. It argues that the ad hoc and contingent nature of decentralisation has been one of the successes of the system, but that the model remains lop-sided in the absence of coherent arrangements for intergovernmental decision-making. It also goes on to address the forthcoming referendum on independence in Scotland.
Stephen Tierney, Tom Mullen, 'Scotland's Constitutional Future: The Legal Issues' 2013
Abstract: This is a report of presentations made during two day long seminars addressing the legal issues surrounding current debates over Scotland’s constitutional future. The first was held at Glasgow School of Law on 27 January 2012 and focused upon ‘The Process of Constitutional Change’, the second, at the Edinburgh Centre for Constitutional Law on 16 March 2012, addressed ‘Inter-Governmental Relations and External Affairs’. The report also covers comments, questions and debate generated by participants. The seminars brought together academics, policy-makers, including civil servants and government lawyers from the UK, Scottish, Northern Irish and Welsh governments, and the UK, Scottish and European parliaments, representatives of the legal profession in Scotland, representatives from the Electoral Commission in Scotland, and from the European Commission Office in Scotland. The seminars were conducted under the Chatham House rule and on this basis comments are not attributed directly to any speaker. The key aim was to bring legal and policy expertise to bear on a range of technical but important questions relating to current constitutional discussions. A primary objective was to advance public debate by offering a comprehensive overview of the legal and constitutional issues involved in possible changes to the devolution settlement including independence for Scotland, thereby outlining in an accessible way the principal issues to policy-makers, researchers and citizens engaging in these processes and debates. What follows is an account of the issues as they were presented and discussed. It tries to cover all of the substantial points raised but is not intended to be a fully comprehensive note of the proceedings.
Stephen Tierney, 'Using Electoral Law to Construct a Deliberative Referendum: Moving beyond the Democratic Paradox' 2013
Abstract: This paper argues electoral law can be used to help construct a ‘deliberative referendum’. This can be done by legal controls in areas such as independent oversight of question-setting, citizen engagement in question formation, guidelines on referendum timing and campaign length, franchise rules, the provision of information to citizens, and laws regulating funding, expenditure and advertising. Two case studies will be cited: the United Kingdom Political Parties and Referendums Act 2000 and the on-going process of designing a referendum to be held in Scotland on independence in 2014, which each offer strong evidence to suggest that referendums can be meaningfully regulated by law and that a deliberative referendum process can be constructed.
Stephen Tierney, 'The Long Intervention in Kosovo: A Self-Determination Imperative?' 2013
Abstract: This paper argues that in order to understand the willingness of many states to recognise Kosovo as a new state, an act that flies in the face of the post-war consensus on the illegality of secession, we need to return to the 1998-99 Kosovo crisis and address the dynamics that informed foreign intervention at that time. We will argue that this intervention was motivated as much by a self-determination imperative – whereby foreign powers sought a detailed realignment of the Yugoslav constitution – as by humanitarian concerns.
Stephen Tierney, 'Whose Political Constitution?: Citizens and Referendums' 2013
Abstract: One notable feature about the debate between ‘liberal’ and ‘political’ constitutionalism has been its elite focus. The courts and the legislature are discussed in efforts to determine the appropriate role of each in processes of constitution-framing and changing. But this task is often set up implicitly as a zero-sum game. Although it might be claimed that citizens are tangentially relevant to this power struggle, a detailed account of whether citizens should, and how they might, play a direct role in constitutional authorship is seldom if ever placed on the table. This paper considers the elite orientation of this debate questioning whether this is in normative terms acceptable, and in empirical terms credible, particularly as we consider how, over the past three decades, the referendum has emerged as an important vehicle for constitutional change in so many states.