Amending the dual constituent deficit: Taiwan’s tragic deliberative choice in the constitutional quest for sovereignty

This article aims to contribute to the debate surrounding the role of referendum in constitutional revision through an examination of Taiwan’s constituent dilemma. To bring to the fore the symbolic import of popular constitution-making to constitutional integration, I investigate how concerns over sovereign status and political identity have resulted in the adoption of referendum in Taiwan’s constitutional amendment procedure. By looking closely at the dual deficit of legitimacy and sovereignty that has dominated Taiwan’s post-authoritarian constitutional reform and drawing on the unsuccessful constitutional referendum in 2022, I make a two-fold argument. First, in cases such as Taiwan where sovereignty is contested, the constitution’s symbolic role takes precedence over the normative and procedural rules in the workings of constitutional integration. Second, the incorporation of a high-threshold referendum into the amendment procedure in the 2005 reform reflects overemphasis on constitutional symbolism at the cost of procedural design, and antipathy to the political character of constitutional revision at once in Taiwan. As the failed 2022 constitutional reform illustrates, the conjunction of a symbolic exercise of popular sovereignty through referendum and an idealized image of consensual constitutional renewal makes the 2005 reform an unrealistic utopian design, leaving Taiwan’s quest for constituent sovereignty in a dilemma. Taiwan’s tragic choice not only suggests that the constitution’s role in politico-social integration is more than a function of substantive norms and deliberative procedural design but also reveals the tension between the symbolic and normative aspects of procedure in constitution-(re)making.