Symmetric Entrenchment: A Constitutional and Normative Theory

Michael B. Rappaport

University of San Diego School of Law

John O. McGinnis

Northwestern University - School of Law

Virginia Law Review, 2003

In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue.

First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment.

In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison - comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments.

On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments - entrenchments that are enacted under the same supermajority rule that is needed to repeal them - are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Number of Pages in PDF File: 49

Keywords: Constitutional Law, Jurisprudence

JEL Classification: K10

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Date posted: June 19, 2003  

Suggested Citation

Rappaport, Michael B. and McGinnis, John O., Symmetric Entrenchment: A Constitutional and Normative Theory. Virginia Law Review, 2003. Available at SSRN: http://ssrn.com/abstract=417263 or http://dx.doi.org/10.2139/ssrn.417263

Contact Information

Michael B. Rappaport (Contact Author)
University of San Diego School of Law ( email )
5998 Alcala Park
San Diego, CA 92110-2492
United States
John McGinnis
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-3235 (Phone)
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