The Supreme Court should test laws against rights in a consistent way, and one way to this is to evaluate whether laws actually meet an essential objective.
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.