Texas Law Review Archives
 

Volume 80
2001-2002

Issue Number 4


Article:

John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEXAS L. REV. 703 (2002).

 

Abstract:

Professors McGinnis and Rappaport propose a new theory of the Constitution: supermajoritarianism.   A constitutive thesis maintains that the important processes of government, from treaty-making to legislating, are supermajoritiarian rules of varying strictness; as a normative matter, it is argued that such rules are attractive because they often improve the outputs of government. A formation thesis asserts that the Constitution is formed and amended by strict supermajority rules.  The authors classify supermajority rule as a distinctive American innovation in the science of constitutionalism, and suggest that supermajoritarian underpinnings strongly support an originalist approach to constitutional interpretation.
 

 

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