Our supermajoritarian constitution

• Published in: Texas law review 2002-03, Vol.80 (4), p.703
• Main Authors: McGinnis, John O, Rappaport, Michael B
• Format: Article
• Language: English
• Subjects: Bill of Rights-US; Constitutional law; Constitutions; Government; History; Legislation; Majority rule; Political power; Public good; Theory
• ISSN: 0040-4411; 1942-857X

This article proposes a new theory of the Constitution. The authors 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 supermajoritarian principle is central both to an accurate description of the Constitution and to the proper understanding of the normative reasons why the Constitution binds Americans. The Constitution contains at least seven express supermajority rules governing important matters such as ratifying treaties, convicting impeached officials, expelling members from the legislature, and establishing and amending the Constitution. Significantly, this employment of supermajority rules was largely an American innovation, especially within the Anglo-American legal system.