Countersupermajoritarianism

24 Pages Posted: 4 Feb 2015 Last revised: 24 Apr 2015

See all articles by Frederic Bloom

Frederic Bloom

University of Colorado Law School

Nelson Tebbe

Cornell Law School

Date Written: February 2, 2015

Abstract

How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation.

In this Review, we press two main arguments. First, we contend that McGinnis and Rappaport’s core thesis sidesteps critical problems with elevated voting rules. We also explain how at a crucial point in the book — concerning Reconstruction — the authors trade their commitments to supermajoritarianism and formalism away. Second, we broaden the analysis and suggest that constitutional change can and should occur not just through formal amendment, but also by means of social movements, political mobilizations, media campaigns, legislative agendas, regulatory movement, and much more. Changing the Constitution has always been a variegated process that engages the citizenry through many institutions, by way of many voting thresholds, and using many modes of argument. And that variety helps to make the Constitution good.

Keywords: Constitution, originalism, supermajority, formalism, Condorcet, Reconstruction, pluralism, amendment, Article V

JEL Classification: K00

Suggested Citation

Bloom, Frederic and Tebbe, Nelson, Countersupermajoritarianism (February 2, 2015). 113 Michigan Law Review 809 (2015), Brooklyn Law School, Legal Studies Paper No. 404, Available at SSRN: https://ssrn.com/abstract=2559449

Frederic Bloom (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Nelson Tebbe

Cornell Law School ( email )

Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-3506 (Phone)

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