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Our Supermajoritarian Constitution – Part II: The Republican Purpose of the Supermajority Rules of the Constitution

In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian.  I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions.

In this post, I want to explore some of the context and purposes of the Constitution that also contributed to the Framers establishing a supermajoritarian constitution.

The Framers of the Constitution wanted to establish a more republican version of the English Constitution.  They not only eschewed a monarchy and an hereditary aristocracy, but they also believed that the English Constitution of the Glorious Revolution had been corrupted  (such as by giving Parliament unlimited authority and allowing the King to purchase votes in the legislature). 

At the same time, though, they were not simple democrats.  They had seen how what they perceived as excessive democracy and a lack of checks and balances at the state level had resulted in instability and poor legislation.  The problem was how to introduce the English limits on democracy without a monarchy and an hereditary aristocracy.

Supermajority rules were one of the principal means that the Framers employed.  First, various traditional English protections were changed into ones with supermajority rules.  For example, the King’s absolute veto and unilateral power to make treaties, both of which were inappropriate to a republican executive, were replaced with a provision that employed express supermajority rules (a qualified veto and the power to make treaties with a supermajority of the Senate).  Conviction for impeachment, which had resided in the aristocratic House of Lords, was placed in the more republican Senate, but now required a supermajority.

Second, unlike the English system, which allowed the King-in-Parliament to pass any laws it desired, the Constitution imposed certain rules restricting the legislature, such as the individual rights provisions of the Bill of Rights.  But these provisions were not made absolute; instead, they could be overridden by constitutional amendment through a strict supermajoritarian process.  Finally, the ordinary process for legislation (borrowing most closely from the English system) imposed tricameralism, which operates as a kind of supermajority procedure.

Thus, the Framers established a republic, not a democracy, and they did so largely through supermajority provisions that placed checks on the public without employing either a monarch or an aristocracy.

Finally, the Framers used a supermajority rule to enact the Constitution as a whole.  To establish the Constitution, 9 of the 13 states had to agree to it.  (And the Framers then used a similar supermajority rule for constitutional amendments.)  Thus, the entire process for enacting constitutional provisions – which was intended to preserve people’s rights and to promote the public interest – was entrusted not to a unanimity rule or to a majority rule, but to a supermajority rule.

Reader Discussion

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on August 20, 2015 at 15:41:57 pm

I find it interesting that the supermajority substitutes resolution through elective action for resolution through war.

When a large enough group of states demands an action, the smaller group must follow that action. The smaller group cannot stop the action through war, because they would be trounced.

Supermajorities prevent military actions in these cases.

Was that one of the intentions of instituting supermajorities?

Or was the use of supermajorities a simple expediency? Did a supermajority standard provide a politically safe standard to implement when negotiating a new constitution because the outcome of a conflict would be in favor of the majority anyway? In this case, the supermajority standard would have been the outcome more of games theory than of the Framers' political theory.

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Scott Amorian
on August 20, 2015 at 21:04:57 pm

I just wish you had answered some of the questions raised in the comments of your last post, this post just feels like a dodge (although I have almost no additional disagreement with it).

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Devin Watkins
on August 21, 2015 at 16:24:27 pm

Mike:

Devin makes a fair point (no, not the dodge thingy) about the questions raised in previous post.

It seems to me that while there is substantial support for the view that there is an undercurrent of supermajoritarian rationale in the document, still one must ask "What happens at the margins" and to what extent is the "supermajority" character of the intended regime limited or ought to be limited by a) the tendency (or possibility) of a supermajority acting contrary to the tenets of the document (Hey, let's negate the 2nd amendment, fellas!) and b) the actions (envisioned or not by the Framers) of one Branch, the Judicial, arrogating to itself the power to determine precisely what the document is / means.

There is / has been considerable discussion, historical and current, as to whether or not, the Framers intended, envisioned or accepted the Judicially claimed power of *final review.* One may argue that those Framers who voiced support for this review power never envisioned the extent to which it is currently practiced. However, I know of no statement by any of the Framers that clearly denied this power. One can engage in "dueling commentaries", yes, and it is true that the expectation was that each Branch by upholding its own institutional interest could block the other - yet both the Executive and the Legislative soon acquiesced to the Judicial. The former two Branches were composed of the Framers amongst others.

In any event, current Judicial Branch usurpations clearly indicate that present regime practice is NOT supermajoritarian - but rather, is an oligarchy of the "Learned Law" - a distinct minority.

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gabe

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