In Search of the Qualitative Clear Majority: Democratic Experimentalism and the Quebec Secession Reference

This article attempts to marry direct democratic deliberation with the enforcement of important constitutional norms in the context of a real-life policy question. The question is the secession of Quebec from Canada. The article argues that a referendum is neither the most legitimate nor the most effective way to address the issue. The debate over Quebec's future must be reoriented by reference to the broad normative framework set out by the Supreme Court of Canada in the Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, combined with a new democratic process. This article introduces an innovative constitutional model called democratic experimentalism, which seeks to ensure legitimacy, participation, and accountability within heterogenous, complex democratic systems, as a fresh perspective on Canada's troubled federalism debate. The article concludes that democratic experimentalism is compatible with Canada's constitutional values and traditions, and with the standard of the clear qualitative majority vote set down by the Supreme Court of Canada. Equally, the Secession Reference approach contains within it an important new understanding of how pluralist democracies globally should approach fundamental constitutional questions.