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Our Supermajoritarian Constitution – Part I: The Supermajoritarian Features of the Constitution

These days the main questions in constitutional theory involve questions of interpretation – in particular, whether one should follow the original meaning of the Constitution or its evolving meaning or some mixture of the two.  (One might also see this question as involving a related question – whether one’s theory of the Constitution should be about the document or about the practices of the country over time.)

But some years ago, constitutional theory focused on a different question – what is the dominant character of the Constitution.  Some people argued that the Constitution is a fundamentally democratic document, essentially allowing a majority of the country to rule, except where the process of democratic rule is subject to infirmities.  That is one way to understand John Hart Ely’s incredibly important book, Democracy and Distrust.  The apparently majoritarian features of the Constitution – that legislation can be passed by a majority of the legislature – is the strongest support for this view.

Other people argue that the Constitution is fundamentally about protecting individual rights.  These people can point to the Bill of Rights as well as the 14th Amendment as the main support for their view.  These people might also point towards the Lockean roots of the political theory that inspired the Constitution.

In my view, however, both of these views miss the mark.  While they both capture part of the truth, the dominant character of the Constitution is that it is a supermajoritarian document.  Some years ago, John McGinnis and I wrote an article making this argument.  In this and my next post, I will briefly describe the basis for our view.

There are three principal types of provisions in the Constitution, and all of them, despite first appearances, are supermajoritarian.  First, there are provisions that are expressly supermajoritarian.  Thus, officers can only be convicted as to an impeachment if two thirds of the Senate agree; a member of the legislature can only be expelled with a two thirds vote of the house; the President’s veto can only be overridden with a two thirds vote of both houses; constitutional amendments can only be passed with two thirds of both houses and three quarters of the states; and the President can make a treaty only if ratified by two thirds of the Senate.

Second, there are provisions that appear to provide absolute protections for individual rights, such as the Bill of Rights or the 14th Amendment.  But if one thinks about it, this description turns out to be false.  These individual rights protections are not absolute.  An individual right can be overturned by passage of a constitutional amendment, which can be accomplished by enactment under a strict supermajority rule.  Thus, individual rights protections are merely provisions that are protected by strict supermajority rules.

Finally, the passage of ordinary legislation by Congress, again, turns out to be best understood as passage through a relatively weak supermajority rule.  It is true (that apart from the filibuster and other legislative rules) that each house can pass a bill with a simple majority vote.  But as Buchanan and Tullock recognized, the bicameral requirement of passage functions like a supermajority rule – we can call it a quasi-supermajority rule.  Moreover, the Constitution goes beyond bicameralism to impose tricameralism, requiring that the bill be presented to the President.  Thus, passage of ordinary legislation is subject to a type of supermajority rule.

The main provisions in the Constitution – express supermajority rules, individual rights, and passage of ordinary legislation – are all supermajoritarian.  In my next post, I will discuss the purposes and context of the Constitution and show how they strongly connect with its supermajoritarian features.

Reader Discussion

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on August 17, 2015 at 16:58:31 pm

Yes it is true that the constitution of its own authority merely imposes a supermajority rule in terms of its positive law. But there are higher law principles that underlie the constitution, especially the ninth amendment and other parts of the bill of rights. Some powers are “just powers” that the people can give up to government if they choose to (through a constitution), but as the declaration of independence says others are inalienable and cannot be given up to government. Just because some powers available to government due to supermajority consent does not imply that all powers can rightfully be given to government in a similar manner. I would say that if the 1st amendment was repealed and the government imposed its will as to what we think and say, even when we harm no other person with our words, such a constitution and government would not be legitimate regardless of the supermajority in which it was passed. Had the government tried to restrict freedom of speech after the constitution was adopted but before the 1st amendment had been ratified, such acts would have been invalid and illegitimate. Supermajority requirements are very important to limit the power of government, but a supermajority does not by itself imply that whatever it does is legitimate.

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Devin Watkisn
on August 17, 2015 at 21:04:39 pm

Devin:

I. of course, agree with you re: 1st amendment (and all others, for that matter) - but I thought that Mike made clear his noted exceptions to supermajority rule when he mentioned the Bill of rights.

That said, I would expect that in his next post he will make note of the problem(s) that would ensue should the people, having fallen prey to approximately a century of Progressive bullsh*t / proselytizing and complete and utter dominance of the education establishment, decide that the 2nd Amendment is no longer operative or that the 9th is also B.S. and something to be disregarded (Oops, forgot, they already did that).

What would be the remedy, Mike - or is there none?

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gabe
on August 18, 2015 at 10:49:40 am

He says: "there are provisions that appear to provide absolute protections for individual rights, such as the Bill of Rights or the 14th Amendment. But if one thinks about it, this description turns out to be false. These individual rights protections are not absolute."

He is making the claim that by the terms of the constitution they can be changed by an amendment. I am saying that not even an amendment can rightfully change something like that. For him it is not an "exception to supermajority rule."

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Devin Watkins
on August 18, 2015 at 16:45:26 pm

Professor Rappaport,

You've presented a fascinating question, and I look forward to future posts elaborating upon your answer. At the risk of presenting an objection that you will later address, I'd like to take issue with your characterization of the Constitution's protections for individual rights as supramajoritarian.

You write:

"Second, there are provisions that appear to provide absolute protections for individual rights, such as the Bill of Rights or the 14th Amendment. But if one thinks about it, this description turns out to be false. These individual rights protections are not absolute. An individual right can be overturned by passage of a constitutional amendment, which can be accomplished by enactment under a strict supermajority rule. Thus, individual rights protections are merely provisions that are protected by strict supermajority rules."

Your argument depends upon the premise that an individual right *can* be overturned by passage of a constitutional amendment. I'd like to challenge that premise.

The Constitution, as a governing document, cannot be understood apart from the political philosophy that it is designed to implement, nor the moral framework which makes that political philosophy coherent. Why is consent-- whether in the form of a simple majority or a supramajority requirement-- a constitutional value? Why does the Constitution require consent?

In brief, consent matters (and it mattered to the Framers) because human beings are capable of giving and receiving reasons for our actions, are not omniscient or infallible, and must be free to engage in peaceful, productive pursuits in order to flourish. Governments are necessary to preserve and enlarge freedom that is ours by right but highly uncertain of enjoyment in the state of nature, and consent is essential to ensuring that the government fulfills that function. Government by consent, as provided for in the Constitution, is the means to an end, not an end in itself.

But consent, while necessary, is not sufficient to establish the legitimacy of either a particular government or a particular act of government. It is incoherent to argue that consent could legitimate a measure that would destroy the freedom that the Constitution is designed to protect. A constitutional amendment, ratified by a supramajority, that denied Americans the freedom to speak would not be a *constitutional* amendment at all-- it would be an arbitrary act, of no authority whatsoever. That's not because a supramajority didn't consent to it-- it's because such acts are at odds with the very reason that the Constitution values consent.

The movement in the Declaration is instructive here. We move from "inalienable rights" derived from nature; to governments that are "established" to secure them; to "just powers" derived from the "the consent of the governed." We have rights; we establish governments to secure them; given that end, those powers must be "just" and they must rest upon "consent." If indeed "individual rights protections are merely provisions that are protected by strict supermajority rules," we can only conclude that the Constitution inverts the Declaration-- consent comes first, rights come last, and they're hardly inalienable. I'd submit that that's an unwarranted conclusion.

Once again, I'm glad that you've chosen to write on this topic and I look forward to future posts.

-Evan

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Evan Bernick
on August 18, 2015 at 17:06:03 pm

So Professor Rappaport:

It seems the multitude(s) are in search of a further exposition of this "supermajoritarian" premise. I also wonder, in such a supermajority regime, where would you place the role of the Courts. If you are to rely upon the Courts for redress of the problems listed by both Devin and Evan (and more modestly I), then are you not contradicting your thesis of a supermajority rule. after all, if only one Constitutionally recognized Branch can negate the actions of a supermajority, then how does the supermajority rule?

Just askin', mind you?

suffice it to say that I (and others) are anxiously awaiting your next posts.

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gabe
on August 19, 2015 at 00:46:04 am

The Constitution is a dead letter and has been for decades. Why people in today's day and age waste their time debating the minutiae of this dead document is more then amazing,but instead,gives legitimacy to the perverted system,and those that rule that system,that has subverted the Constitution and who now wish to lord over us. The current "law of the land" is so far removed from the original intent of the founding fathers Republic that it has become not only meaningless but has become "the color of law" that has turned America from a free republic into an administrative state tyranny. For those who are interested there are several good reads on this subject including "The Constitution in Exile" by Judge Andrew Napolitano and "What happened to the land of the free" by the late Harry Browne.

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libertarian jerry

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