Our Supermajoritarian Constitution
McGinnis, John O., Rappaport, Michael B., Texas Law Review
For many years now, constitutional scholars have been developing theories of the Constitution. These theories generally make both descriptive and normative claims. Descriptively, the theories argue that the Constitution promotes a single political principle. Normatively, they assert that this principle is a desirable way to govern the nation. John Hart Ely, for example, has argued that the central idea underlying the Constitution is democracy and that democracy is an attractive way to organize the country.1 Fundamentalrights theorists make similar descriptive and normative claims about the importance of protecting basic rights.2 Most recently, Bruce Ackerman has argued that the Constitution is best understood and defended as the product of a series of constitutional moments in which the people establish the fundamental law that should govern the nation.3 While these theories have attracted attention and provided insights, each is open to serious criticism on normative grounds, especially for being inconsistent with the actual Constitution that the Framers bequeathed to us.
This Article proposes a new theory of the Constitution. We argue that the central principle underlying the Constitution is governance through supermajority rules. More specifically, the Constitution embraces supermajority rules as a means of improving legislative decisionmaking in various circumstances where majority rule would operate poorly. Supermajoritarianism is thus a means of promoting the more general constitutional principle of republicanism, which attempts to promote the public good within a system of popular representation. The super-majoritarian principle is central both to an accurate description of the Constitution and to the proper understanding of the normative reasons why the Constitution binds us.
The supermajoritarian character of the Constitution is best revealed by viewing the document from several different perspectives. No matter from which direction the document is seen, supermajority rules always assume a prominent position. In this Article, we approach the supermajoritarian aspects of the Constitution from three directions. First, we describe the Constitution using the tools of ordinary legal interpretation and show that the text, structure, history, and purpose of the Constitution all reveal its
Our examination of the Constitution from the perspective of ordinary legal interpretation begins in Part II with the constitutional text and structure. The Constitution contains at least seven express supermajority rules governing important matters such as ratifying treaties,4 convicting impeached officials,5 expelling members from the legislature,6 and establishing and amending the Constitution.7 Still, it might be thought that supermajority rules are not a central part of the structure of the Constitution because most matters are addressed by two other decisionmaking rules: majority rule is said to govern the passage of legislation, and the Constitution contains absolute prohibitions, such as the Bill of Rights, which sometimes prohibit the government from taking action. Upon examination, however, these two decisionmaking rules also turn out to be supermajority rules. The procedure for enacting legislation-passage by two houses and presentment to the President-imposes what is essentially an implicit or mild supermajority rule.8 Absolute prohibitions, such as the Bill of Rights, are also implicit supermajority rules. …