Why supermajoritarianism does not illuminate the interpretive debate between originalists and non-originalists

Northwestern University Law Review

Volumn 101, Issue 4, 2007, Pages 1905-1918

  Leib, Ethan J ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 37749002378     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (68)

1. See, e.g., John O. McGinnis & Michael B. Rappaport, Supermajority Rules and the Judicial Confirmation Process, 26 CARDOZO L. REV. 543 (2005);
2. John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703 (2002) [hereinafter McGinnis & Rappaport, Our Supermajoritarian Constitution];
3. John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 WM. & MARY L. REV. 365 (1999);
4. John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995).
5. Indeed, in a recent article, I draw inspiration from their work and apply many of their insights to argue for supermajoritarian decision rules in the context of criminal jury convictions, an underexplored application of their enthusiasm for supermajoritarian rules in democratic decisionmaking. See generally Ethan J. Leib, Supermajoritarianism and the American Criminal Jury, 33 HASTINGS CONST, L.Q. 141 (2006) (arguing that McGinnis and Rappaport's attention to the supermajoritarian nature of our polity helps recommend supermajoritarian decision rules for conviction by the criminal jury).
6. See John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 NW. U. L. REV, 383 (2007), 101
7. NW. U. L. REV. COLLOQUY 68 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/1/ (subsequent citations refer to 101 NW, U. L. REV. 383 (2007)).
8. Id, at 383.
9. But see generally ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2002) (providing a trenchant criticism of the entire document and many of its institutional choices);
10. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) (2006) (same).
11. McGinnis & Rappaport, supra note 3, at 383.
12. Id.
13. Id.
14. Id. at 384.
15. Id. at 391 n.37.
16. Richard A. Posner, Foreword: A Political Court, 119 HARV. L. REV. 32, 90 (2005).
17. RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 71 (2003) (emphasis added).
18. See id. at 59 ("Only in exceptional circumstances . . . will the pragmatic judge give controlling weight to systematic consequences, as legal formalism does; that is, only rarely will legal formalism be a pragmatic strategy. And sometimes case-specific circumstances will completely dominate the decisional process.").
19. McGinnis & Rappaport, supra note 3, at 384.
20. POSNER, supra note 12, at 71.
21. Id. at 72;
22. see generally id. at 71-73.
23. Of course, not all rule-pragmatists are originalists, and McGinnis and Rappaport might convince a few such rule-pragmatists to join them. But I would imagine that the rule-pragmatists would want to hear a lot more about exactly which sorts of good consequences originalism can achieve. In any case, as I think even McGinnis and Rappaport would agree, rule-pragmatists have not, as a group, been opposed to originalism in the way case-by-case pragmatists have. Accordingly, the need for matchmaking between originalists and rule-pragmatists hardly seems like a pressing academic concern.
24. McGinnis & Rappaport, supra note 3, at 389-90.
25. McGinnis and Rappaport's justifications for binding blacks and women to the Constitution-despite their exclusion from the supermajoritarian rules that purportedly legitimized the Constitution itself-are extremely weak. See id. at 394-96. It suffices to say that given McGinnis and Rappaport's focus on constitutional enactment as the primary justificatory moment, it is a bit of a cheat to smuggle in a justification for the document that arises only because later provisions somehow purify the original enactment of its defects. More ironic is that the full purification happens neither according to the very Article VII supermajority requirements that they think give the Constitution its supermajoritarian credibility,
26. see id. at 388, nor according to Article Vs supermajority requirements for constitutional amendment. Indeed, McGinnis and Rappaport find it relevant for the Constitution's legitimacy, for example, that blacks are now equal, thanks to the Voting Rights Act of 1965, and that women are now equal thanks to the Supreme Court's construction of the Fourteenth Amendment.
27. See id. at 395-96. It rums out that plain-old legislation and "judicial activism"-processes that are rather different from the supermajoritarian processes that rest at the center of the Constitution's legitimacy for McGinnis and Rappaport - legitimize the Constitution itself! Just how these post-enactment moments work to cleanse the original sin of exclusion retroactively is not well specified in their essay. Moreover, their suggestion that we ought to worry about the exclusion of women from the founding supermajoritarian big bang of beneficence less than the exclusion of blacks therefrom is unsupported by authority and borders on the offensive: they claim that "women were virtually represented at the time by their male relatives" and that "many women apparently believed that they should not have the right to participate." Id. at 395 (citing no authority). Finally, in their discussion of exclusions, McGinnis and Rappaport evade one of the most interesting interventions in the voting rule literature, one that presents yet another challenge to their project.
28. See Adrian Vermeule, Absolute Voting Rules (Univ. of Chi., Pub. Law Working Paper No. 103, 2005), available at http://papers.ssm. com/sol3/papers.cfm7abstract_id-791724. Vermeule argues, "To say that the voting rule should be 'a majority' or 'a supermajority' is an underspecified statement, like saying 'X is more than' or 'three multiplied by.' If a voting rule is to be coherently stated, one must ask 'a majority (or supermajority) of what?'" Id. at 3. In particular, Vermeule demands that those favoring "supermajoritarian" rules specify their preferred "multiplicand," which is usually either a supermajority of "(1) those present and voting or (2) the whole membership of the institution ... ." Id. at 4. As Vermeule's paper makes clear, the choice can be quite consequential-and McGinnis and Rappaport simply do not engage the question of the appropriate multiplicand, which is central to their claim that supermajoritarianism itself confers legitimacy despite great exclusions from the moment of enactment. Thanks to Seth Barrett Tillman for discussion on this last point.
29. U.S. CONST, art. I, § 5, cl. 3.
30. See Adrian Vermeule, Submajority Rules: Forcing Accountability upon Majorities, 13 J. POL. PHIL. 74 (2005).
31. Of course, McGinnis and Rappaport already know all this. In their earlier articles on supermajoritarianism, they develop a much more nuanced approach to supermajoritarianism-one that acknowledges that supermajoritarian benefits accrue only in particular contexts. See, e.g., McGinnis & Rappaport, Our Supermajoritarian Constitution, supra note 1, at 728.
32. Elsewhere, I have catalogued critiques routinely offered against supermajority rule, ones that find no rebuttal in McGinnis and Rappaport's essay, despite their potential application to the particular context of Constitution-making. Supermajoritarian decision rules for constitutional choices can: result[] in compromises no one really wants because ideas and policies get thinned out to garner substantial agreement[;] privileged the status quo...[;] [fail to] result in higher likelihood of "correct" answers because just as the probability of correct decision[s] increases with move[s] toward unanimity [away from simple majority rule], so does the probability that the minority is wrong increase; accordingly, providing the minority veto power may be unwise[;] [lead to] coalition-building [that] reifies groups and can be balkanizing[;] [be] no better than simple majority at avoiding Condorcet losers (i.e., choices that might win in a ranking system but that would fail in pair-wise competition with other choices). Leib, supra note 2, at 153-54.
33. See ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 140-41 (1989);
34. Amy Gutmann, Deliberative Democracy and Majority Rule: Reply to Waldron, in DELIBERATIVE DEMOCRACY & HUMAN RIGHTS 227, 230 (Harold Hongju Koh & Ronald C Slye eds., 1999) ("To give a minority veto power is morally more dangerous in the legislative arena than it is in criminal trials,...").
35. The "attractive baselines" argument is developed in McGinnis & Rappaport, Our Supermajoritarian Constitution, supra note 1, at 742.
36. See Gutmann, supra note 24, at 230 ("The likelihood of achieving justifiable agreement [with supermajority rules] differs depending on what the issue is and who the deliberators are."). In my recent article that aims to apply McGinnis and Rappaport's insights to jury decision rules, context-sensitivity led me to embrace supermajoritarian rules for conviction by the criminal jury but to reject them for acquittal. The same considerations do not apply to the decision to acquit, so I don't think it is appropriate to require jurors to reach consensus on acquittal beyond simple majority agreement. See Leib, supra note 2, at 187-88.
37. Indeed, McGinnis and Rappaport want us to believe that this was a double supermajoritarian hurdle because "a supermajority of states also had to support the Constitutional Convention in the first place." McGinnis & Rappaport, supra note 3, at 388-89.
38. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 487 n.l 12 (1994) (emphasis omitted).
39. See Akhil Reed Amar, The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749, 774 (1994) ("Most remarkable is what was not said in antebellum debates. Almost no one denied that. , . the proper voting rule for popular sovereignty in making or changing constitutions is simple majority rule. Almost no one, for example, argued that conventions or popular ratification must be supermajoritarian.").
40. They might reply that national supermajorities would likely still be necessary to achieve the Article VII and Article V thresholds. Perhaps-but perhaps not. Nothing in the enactment and amendment rules requires it, and the differences between small population states and large population states is not merely a modem anomaly.
41. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 1981-200Oh (2000)).
42. See WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 22-23 (3d ed. 2001).
43. See, e.g., McGinnis & Rappaport, OMr Supermajoritarian Constitution, supra note 1, at 712-16
44. (citing JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 233-48 (1962));
45. DENNIS C MUELLER, CONSTITUTIONAL DEMOCRACY 193-95 (1996);
46. John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 74-75 (2001);
47. William T. Mayton, The Possibilities of Collective Choice: Arrow's Theorem, Article I, and the Delegation of Legislative Power to Administrative Agencies, 1986 DUKE L.J. 948, 956 (1986);
48. see also Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1557 (1990) ("Bicameralism forces majorities to seek broader coalitions. It imposes something like a supermajoritarian voting rule.").
49. This is similar to the challenge supermajoritarians often hear: "Any theory that might justify the use of a three-fifths (60%) or two-thirds (66.6%) decision rule should be equally effective at justifying a nine-tenths (90%) decision rule, or even the rule of a single person (99.9999%)." Brett W. King, Wild Political Dreaming: Historical Context, Popular Sovereignty, and Supermajority Rules, 2 U. PA. J. CONST. L. 609, 611 (2000).
50. Arguably, the procedures of standard legislation might often be more supermajoritarian than constitutional provisions because bills may be subject to Senate Rule V, requiring unanimous consent of all Senators to achieve consideration on the floor of the Senate chamber. See ESKRIDGE ET AL., supra note 32, at 32 (explaining how Senate Rule V operates as a supermajoritarian vetogate).
51. See McGinnis & Rappaport, supra note 3, at 389-91.
52. Id. at 389.
53. See McCulloch v. Maryland, 17 U.S. (Wheat.) 316, 407 (1819) ("A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language,").
54. Certainly, some ratifiers were all too aware that deep ambiguities in the document seemed to give free rein to future federal authorities to do whatever they wanted. Despite this awareness, they voted to ratify. See H, Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885, 912 n.143 (1985) (explaining the views of Edmund Randolph, a delegate in Philadelphia, who ultimately played an important role in getting Virginia to ratify the document despite his misgivings about serious vagueness and ambiguity injurious to the states). This evidence suggests that some drafters and ratifiers might have recognized that the Constitution would not be fully interpreted in light of contemporaneous interpretive conventions. And there is much more evidence in Powell's article that tends to show that many Anti-Federalists were deeply concerned about the radical interpretive freedom the Constitution gave to future Congresses and members of the federal judiciary, The views of these important members of the founding generation are surely relevant in ascertaining the interpretive conventions prevalent at the time of enactment and how they were expected to be applied to the Constitution's open-textured and ambiguous provisions.
55. Consider, for example, Congress's "failure" to define the term "discriminate" in the antidiscrimination provisions of the Civil Rights Act of 1964. See United Steelworkers of America v. Weber, 443 U.S. 193, 239-43 (1979) (Rehnquist, J., dissenting) (noting Congress's failure to define the word "discriminate" in the Civil Rights Act of 1964 and trying to derive its meaning not from the statute directly but from legislative history), Gaps in legal text virtually guarantee that the judicial function and judicial power will require more than simple law-application. See, e.g., Rex v. Liggetts-Findley Drug-Stores Ltd., [1919] 3 W.W.R. 1025 (rejecting an argument that because a statute required drug shops to close by 10 P.M., but did not specify that they must remain closed for any period of time, the statute thus left open the possibility that the shop owner could reopen at 10:10 P.M.);
56. see also ESKRIDGE ET AL., supra note 32, at 100 ("Can we expect Congress, drafting statutory language in an environment of imperfect information and substantial time pressure, to anticipate specific questions that will arise under the law, or is it more realistic to expect general statements of policy that will require agencies and courts to use discretion in executing and interpreting law?").
57. See, e.g., ESKRIDGE ET AL., supra note 32, at 572 (citing HENRY HART, JR. & ALBERT SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 147, 362-403, 545-70 (William Eskridge, Jr. & Philip Frickey eds., 1994) for the proposition that legislatures sometimes need to enact very broadly worded standards rather than specific rules, and that enacting ambiguous or vague provisions "essentially delegates] rulemaking responsibilities to courts [and] agencies").
58. John O. McGinnis & Michael B. Rappaport, Original Interpretive Principles as the Core of Originalism, 24 CONST. COMMEN. (forthcoming 2007) (manuscript at 9), available at http://ssrn.com/ abstract-962142.
59. In this more recent work, McGinnis and Rappaport cite Powell to instruct us on the interpretive conventions of the founding generation. Id. at 8 (citing Powell, supra note 39). And Powell at least provides McGinnis and Rappaport some useful support when he announces: "Although the Philadelphia framers did not discuss in detail how they intended their end product to be interpreted, they clearly assumed that future interpreters would adhere to then-prevalent methods of statutory construction." Powell, supra note 39, at 904. Moreover, there is much material in Powell that dovetails neatly with McGinnis and Rappaport's sympathy for original meaning originalism (though the evidence is far from univocal on the question). However, even if these excavations are historically accurate, McGinnis and Rappaport still need an argument for why any of this history should matter. And supermajoritarianism cannot fill that gap.
60. As Powell argues, at the time of the enactment of the Constitution, "there were sharp disagreements over which interpretive approach was acceptable." Powell, supra note 39, at 912.
61. Id.
62. See ESKRIDGE ET AL., supra note 32, at 671-73 (summarizing the founding generation's eclectic approach to statutory interpretation, which included considerations of "equity");
63. see also Powell, supra note 39, at 887 (suggesting that the interpretive conventions of some of the drafters and ratifiers of the Constitution evidenced a "willingness to interpret the constitutional text in accordance with the common law principles that had been used to construe statutes").
64. See generally William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215 (2001) (developing the idea of a super-statute that wins broad consensus and commands dynamic, rather than originalist, interpretation in the courts).
65. Id. at 1271 (arguing that the entrenched norms of super-statutes "form under conditions of consensus" and require "a continuing process of deliberation" and "consensus-building").
66. Id. at 1234.
67. Id.
68. Another interesting aspect of Eskridge and Ferejohn's essay is their claim that super-statutes will have a "gravitational pull on constitutional law itself." Id. at 1232, 1236. This highlights the challenge I offered earlier in this Essay: supermajoritarianism's legitimating force (if indeed it does do something to confer legitimacy) cannot be isolated to constitutional enactment and Article V amendment. Rather, our society will come to agreement and deliberative consensus on new principles that themselves will have special legitimacy. And these new equilibria should have and do have effects on the interpretation of the Constitution itself. Id. at 1267-76. This tends to show that a thoroughgoing commitment to supermajoritarianism does not rest well with originalism. If McGinnis and Rappaport want us to be originalists, supermajoritarianism surely doesn't get us there directly.