For Constitution Day: a short civics lesson from Matthew Casbarro on why the United States has no national referendum — and why the Framers may have wanted it that way.
In January 2019, a proposal for a constitutional amendment imposing congressional term limits raised an obvious objection: the only people who could vote to send it to the states were the people it would bind. Writing for the University of Miami Law Review’s online Insights series, Matthew Casbarro used the moment to ask a broader question. When a federal issue presents that kind of conflict of interest, do Americans have any way to decide it directly?
The short answer is no, and the piece explains why. Unlike many state constitutions, which allow citizens to vote on statutes and amendments by referendum or initiative, the United States Constitution provides no mechanism for a national popular vote on anything. Article V is the only path to amendment: two-thirds of both houses of Congress must approve a proposal, and three-fourths of the states must ratify it, either through their legislatures or through state ratifying conventions. Ratifying conventions have been used exactly once, for the Twenty-First Amendment, and even then the states chose their convention delegates in very different ways. An Article V convention of the states could in theory propose amendments without Congress, but it has never been invoked, it has no settled procedural rules, and serious scholars have warned about where it might lead.
Matthew’s conclusion is measured. The strictness of Article V makes it unlikely that an amendment could bypass Congress even when Congress has a conflict of interest, which leaves the public with one direct lever on federal matters: choosing its representatives. That, he suggests, appears to have been a deliberate design choice. It is a good reminder, on the anniversary of the Constitution’s signing, of how much the document relies on representation rather than plebiscite.
Matthew wrote the piece as a student editor of the Law Review; he later co-authored an article for the American Health Law Association’s Health Law Connections on professional actions against physicians for opioid prescribing (July 2021). He is a shareholder in the firm’s Miami office, where his practice emphasizes commercial litigation and appeals.
Read: National Referendums on Federal Constitutional and Legislative Issues: Can the Public Have a Direct Say? — University of Miami Law Review, Insights, January 29, 2019
About Matthew Casbarro
Matthew Casbarro is a shareholder in the firm’s Miami office and a broad-based litigator who represents individuals and entities in state and federal courts, with an emphasis on commercial litigation and appeals. He earned his J.D., cum laude, from the University of Miami School of Law, where he served as Articles and Comments Editor of the University of Miami Law Review, and he interned for Judge Jose E. Martinez of the Southern District of Florida and Judge Robin S. Rosenbaum of the Eleventh Circuit.
Publication spotlights summarize work our attorneys have published elsewhere; the views expressed in the original pieces are the authors’ own. Insights posts are offered for general information and are not legal advice.
