Holding A National Referendum

I just finished reading my co-blogger Stephen Griffin's new book (psst--look to the right and you can see how to buy one) and want to say something about his qualified endorsement of creating a process to hold a national referendum.

Longtime readers of the blog know that I am fascinated by what we can learn from British constitutional practice.  The other day the Prime Minister announced that the country would hold a referendum in June on whether to leave the European Union.  This vote is not binding.  Parliament is the ultimate authority on this question.  In practice, though, Parliament will accept the verdict (at least if there is a decisive margin).  On such a fundamental question, this looks like an appropriate process, especially given that Britain held a similar referendum in the 1970s on joining the Common Market.

My view is that the United States would benefit from having an occasional single-issue referendum that is non-binding but would be treated as very important by Congress, the President, and the Court. Perhaps that would be on an issue of war and peace.  (Should we invade Iraq?)  Perhaps that could be on some critical domestic matter (Should marijuana be legalized?)

But can this be done within our present Constitution?  After all, states run our elections.  How can Congress put a question on the ballot across the country?  I think that there is a way.  Under the Article One, Section Four power to regulate "the Times, Places, and Manner of holding Elections for Senators and Representatives," a statute could be enacted stating that "to advise members of the House and Senate on the ballot who are elected" a question of the sort that I am describing could be added.  This could be done, I think, only at a general election for Congress, as there would have to be some connection between congressional elections and a referendum under Article One, Section Four for this statute to pass constitutional muster.

Note that this sort of referendum is very different from the initiative process used in many states, as it would not be binding.  Still, if the results of such a national vote were taken seriously, then the result might be more responsive government.