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“Ice Cream Referendum,” Robert Czerny, Ottawa, ON


Choosing a constitutional destiny can be as clear and simple as choosing a flavour of ice cream.

A friend dropped over recently to cheer me up. I had been stewing all day about the latest constitutional brouhaha. She had been on a litter clean-up outing with a bunch of kids.

“You should have come out with us,” she said. “The fresh air clears the mind. In fact, I have all the constitutional answers you need.”

“Really? What do your little Muskrats and Sprinkles say about the two constitutional issues?”

“Beavers and Sparks,” she corrected me. “And it’s three issues, not two.”

“Hey wait, I may not know the names of my mini-scouts,” I protested, “but the controversy since the Supreme Court ruling is about two issues: the question and the majority.”

“Right—three issues. First one is the question.

Clear Question

“Say you are outdoors with a bunch of kids. They have been very active and deserve a treat. You come up to a little store and ask the attendant for ice cream. The choices are chocolate or vanilla, and you have enough money to treat everyone if you all decide for the same flavour.

“So what do you tell the kids? You tell them they can vote. And the question is, Do you wish me to negotiate conditions for the acquisition and enjoyment of a frozen confection, should the opportunity arise in a favourable cost-beneficial algorithm within the accumulated means entrusted to me, that is or approximates in all relevant and customary attributes the taste commonly known as chocolate?”

“No, that won’t work,” I laughed, “but it does sound familiar.”

“Then how about Do you want chocolate ice cream, Yes or No?”

“Still no good. The kids don’t know what happens if they vote No. The choice is incomplete.”

“Right. A clear question has completeness. Left or right, not left or non-left. Day or night, not day or non-day. In this case, the clear question is Which flavour of ice cream do you want, chocolate or vanilla?”

Clear Majority

I was beginning to wish I had spent the day outside. My friend continued to the issue of majority.

“If the kids ask you how the result will be decided, you will probably say Whichever flavour gets a majority of votes is the winner. But what if you yourself prefer chocolate. Then you might be inclined to say Chocolate wins if it gets a simple majority no matter how small—say, 50% plus one. But for vanilla to win, it has to get a much bigger majority.

“Of course the kids will recognize that you are being unfair. They will explain to you that the same condition applies both ways: The sufficient majority applies whichever answer gets the sufficient number of votes. Whatever margin creates a clear, final choice for one flavour would make for a clear, final choice of the other flavour. In a democratic vote, you cannot set victory conditions for one candidate differently from the conditions for other candidates. You cannot stipulate 51% gets you chocolate but it takes 80% to get you vanilla.”


This made sense, but where was the third issue?

“I already slipped it in,” said my friend. “A final choice­what does that mean?

“Finality means that the issue is settled. This varies with the context. With the kids on the outing, you have a certain amount of money and time. No matter whether you like the outcome of the vote or not, you accept it and buy the treats; you don’t decide Oh, voting is so much fun, let’s do it again and see if the result is different, because in fifteen minutes you have to be on your way and nobody would get anything then.”

“How does this apply to the constitutional debate?”

“In this context, final does not mean We can have another referendum whenever we feel like it. Nor does it mean Forever, because history marches on, the past does not bind anything forever. And especially, final does not mean As long as the sun shines and the rivers flow, because we know that we are very bad as a society at keeping promises set out in those terms.

“Rather, for this issue, final should mean Not again in my lifetime. In practical terms, that could be, say, 75 years. If a referendum were held today, then the people who don’t like the results and want to push for a repeat, would know that they need to wait for 75 years, which would be beyond the lifetime of most of the people who had voted today.”

“I think most of the voters would be relieved to hear that—no more constitutional referenda in my lifetime!”

“Correct. But the voters have not been the ones pushing for referenda every fifteen years (1980, 1995) or sooner. It is the elites that only want one answer—CHOCOLATE!—who contrive to repeat the vote every time they get that rotten vanilla response.

“Ultimately, decisions on clear question, on clear majority and on finality set limits on the behaviour of the political elite, who are inclined to ignore the will of the electorate when it does not suit their vision.”

The Test

“So what did the kids decide?” I asked.

“This afternoon, you mean? Oh, I just bought them all chocolate ice cream. I prefer chocolate.”

“WHAT?? No vote?”

“Exactly. But there were just a few whines, no big revolt. Like the break-up of Czechoslovakia; the people didn’t get to vote in that case. Referendum is just one way to do it. The proof of the pudding, you know,” said my friend—with finality.

Robert Czerny
Ottawa, Ontario