Marine Le Pen and the Referendum: When the People Become the Problem

For several months, Marine Le Pen has made the referendum a central part of her strategy for 2027. If she wins the presidency, she intends to consult the French people directly on several flagship measures in her platform, particularly on immigration. Referendums could thus become the Rassemblement National's (RN) preferred tool for allowing voters to decide directly on issues that deeply divide the country – and sometimes even her own supporters.

This campaign promise raises a fundamental political issue. For a ruling class that has been in power for decades and is accustomed to setting the rules of the game, is appealing directly to the people considered politically acceptable?

The idea of a referendum on immigration has long been on the French right’s agenda – and not just within the RN. Immigration is one of a range of related issues that are part of the RN’s political DNA. Jordan Bardella, the party's president, recently clarified that the referendum on immigration could address the abolition of birthright citizenship, the systematic deportation of foreign offenders and criminals and the establishment of national priority for certain social benefits.

The issue of the Islamic veil could also be put to the French people. Le Pen has confirmed her intention to ban it in public spaces, while Bardella has proposed including the measure in a broader referendum on “Islamist ideology” – potentially as part of the referendum on immigration.

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A Constitutional Battle

Opponents of Le Pen’s proposal primarily cite Article 11 of the Constitution. This article authorizes the President of the Republic to submit to a referendum a bill concerning, in particular, “the organization of public authorities” or reforms related to the nation’s economic, social or environmental policy. According to this interpretation, Article 11 does not allow the Constitution to be amended in this way to include provisions relating to immigration, nationality or national priority.

The established procedure for constitutional revision is, in principle, that set forth in Article 89. The text must be passed by the National Assembly and the Senate in identical terms before being submitted to a referendum, unless the matter is referred to the Congress of Parliament. This poses a particular problem for the RN: if Le Pen does not have a parliamentary majority, she would struggle to pursue this route.

On this basis, constitutional scholars consider the proposal to be contrary to the Constitution. Nicolas Hervieu, affiliated professor at Sciences Po Law School, has described using Article 11 in this way as “completely contrary to the Constitution”, arguing that the article does not allow for such a referendum. Other legal experts go further and accuse the RN of deliberately seeking a confrontation with the Constitutional Council.

But the legal question is far from settled. Le Pen’s supporters point in particular to the precedent set in 1962. That year, General de Gaulle used Article 11 to hold a referendum on introducing the direct election of the President of the Republic by universal suffrage. This was a constitutional amendment, and the procedure was denounced at the time as illegal by a large part of the political class and the legal community. The Council of State contested the use of Article 11, but in the end, the Constitutional Council declared that it did not have jurisdiction to review a law adopted by referendum. The measure was approved by 62.2% of voters.

This is the precedent cited by Rassemblement National supporters such as lawyer and polemicist Pierre Gentillet: if de Gaulle was able to use Article 11 to amend the Constitution, why should the same route be considered constitutionally unavailable today?

The historical precedent carries weight. But it does not mean that the procedure would be constitutionally uncontroversial today. The Constitutional Council and the Council of State have since clarified their positions, while Article 11 itself underwent significant changes in 2008. In particular, through decisions in 2000 and 2005, the Constitutional Council has asserted its authority to review certain referendums before they are held.

Back to the People

But this legal battle raises a broader political issue: the referendum could become particularly important for Le Pen if her election as president were not accompanied by a majority in the National Assembly.

This is far from a theoretical scenario. The fragmentation of the French political landscape now makes the traditional alignment between the presidential majority and the parliamentary majority much less certain. A president elected on a clearly defined platform could therefore find herself facing a National Assembly that is hostile, divided or incapable of forming a stable majority.

In this scenario, the referendum would not simply be a means of passing certain controversial measures. It would become an instrument of government: a means, on issues falling within its scope, of going directly to the French people when opposition in parliament prevents the presidential mandate from being translated into action.

The shadow of General de Gaulle, founder of the Fifth Republic, then reemerges. His constitution, which has governed France since 1958, was designed in response to the parliamentary instability of previous regimes. De Gaulle sought to restore the authority of the state and put an end to what he denounced as the “party system”. The referendum was part of this vision: it allowed the head of state to address the people directly rather than leaving political parties and parliament as the sole intermediaries between voters and political power.

Le Pen knows this history well and clearly intends to use it to her advantage. While the referendum cannot be transformed into a permanent instrument for governing without Parliament, it remains a symbolically powerful tool for restoring the French people’s confidence in a system that often gives them the impression it no longer listens to them.

Since coming to power, Macron has repeatedly promised to hold referendums without ever actually doing so. The last national referendum held in France was on the European Constitutional Treaty, and it left a bitter taste: although the French overwhelmingly rejected the draft European constitution, its main provisions were later reintroduced with the adoption of the newly drafted Lisbon treaty – this time through parliamentary channels.

When Democracy Hits a Wall

There is a certain historical irony in portraying referendums as inherently undemocratic simply because they can break a parliamentary deadlock. The referendum is, in fact, one of the two channels through which national sovereignty is exercised under the Constitution: representation and direct consultation of the people. Article 3 is explicit: “National sovereignty belongs to the people, who exercise it through their representatives and by means of a referendum.”

The referendum therefore does not legally bypass Parliament. Under the conditions set forth in the Constitution, it allows voters to decide directly – an increasingly important power in a politically fragmented France.

The debate extends far beyond Le Pen and immigration. The RN has every right to advocate for measures that its opponents deem bad, dangerous or discriminatory. Its opponents have every right to oppose these measures. However, systematically responding to a political proposal with “that would be unconstitutional” gives the impression that a political majority may find itself unable to truly transform the country in line with the mandate it received from voters.

The rule of law obviously imposes limits on political power, as officials in Brussels never tire of repeating. Even a democratically elected majority cannot wield absolute power. The Constitution protects rights and establishes the separation of powers precisely to prevent democracy from turning into tyranny.

But the reverse is also problematic. If voters choose a political direction and that choice is systematically thwarted by constitutional, judicial or European obstacles, the validity of the democratic process is called into question.

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Today in Europe, there is a recognized shift away from the rule of law toward a form of government by regulation. Under pressure from rules imposed by authorities in Brussels, elections continue to take place and parties continue to present platforms to voters, but those who interpret the rules increasingly determine how much of the resulting mandate can actually be put into practice.

In this context, the dispute over the referendum is of paramount importance and will likely be one of the major institutional battles of the 2027 French presidential election. The Constitution should not be invoked as a magic formula to shut down all political debate before citizens have even had a chance to express their views.

Two conceptions of democracy are at odds. The first holds that an electoral mandate must remain strictly within existing legal boundaries. The second holds that an electoral victory must be able to pave the way for profound changes – including constitutional ones – provided that the French people themselves are called upon to approve them.

In a Republic that proclaims that sovereignty belongs to the people, establishment parties in crisis – yet still holding a monopoly on power – have grown accustomed to treating direct consultation of the people as a threat to democracy, proving Brecht right: since the people vote against the government, the government must dissolve the people and elect another. This sham must be exposed.