Michael B. Rappaport

Symmetric Entrenchment: A Constitutional and Normative Theory

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.

The Condorcet Case for Supermajority Rules

The Condorcet Jury Theorem has been deployed to argue that majority rule is the best voting rule for popular decisionmaking, including for legislatures. Yet the United States Constitution employs supermajority rules of various kinds as the primary decisionmaking rule. In this article, we show that modifi cations in the Condocet paradigm that make the model more realistic have the effect of making supermajority rules more desirable than majority rule in a variety of circumstances. We explain that on plausible factual assumptions the Constitution’s supermajority rules generally correspond to situations in which supermajority rules are desirable under a Condorcet paradigm, including the supermajority rules for impeachment, the implicit supermajority rule created by the tricameral structure for passing legislation, and the stringent supermajority rule for entrenching constitutional provisions. We also argue that there is an insurance rationale for using a supermajority rule for entrenching constitutional provisions. Because there is often uncertainty as to how majority rule and supermajority rule will function, risk averse parties may prefer supermajority rules because their effects are less extreme than that of majority rule. Finally, we show that the Condorcet paradigm helps to justify the continuing authority of the Constitution to displace statutes.

The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty

In this essay, we explore the effects of the application of the filibuster to judicial confirmations. We conclude that the judicial filibuster has fundamental implications for both the composition of the courts and nature of constitutional law. If employed, the filibuster will change the kind of judges who are confirmed and so over time reshape the Supreme Court itself. We argue that the filibuster will lead to more moderate judges. With the help of spatial models from the political science literature, we contend that supermajority confirmation rules, of which the filibuster rule is an example, will tend to make justices more moderate, where moderate means having a jurisprudential view closer to the view held by the median Senator. We thus identify an apparent paradox that a supermajority rule for judicial confirmation actually furthers the views of the legislative majority. We also analyze the Filibuster Deal, an agreement of 14 moderate Senators designed to preserve the filibuster. We contend that the deal furthered the political self-interest of this group, because the filibuster generates the appointment of the moderate judges that these Senators support. We also make predictions about how the key terms in the deal will be interpreted. Our argument that the filibuster rule generates more moderate judicial appointments also suggests that the rule will temper the countermajoritarian difficulty - the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches. We maintain that a supermajority confirmation rule that generates appointments that accord with the median senators view is also more likely to produce judges who act based on a majority of the publics view of judicial review. In this way, judicial review would be more likely to impose the limitations on popular government that a majority of the people desire. In developing this argument, we unpack the countermajoritarian difficulty into three components - jurisprudential, temporal, and confirmational. Finally, we use our framework to explicate other important features of the confirmation process. We show that the presence of a filibuster rule will lead the President to select more stealth nominees, but that such nominees will still tend to be more moderate than those nominated under majority confirmation rules. We also show that whether a filibuster occurs will depend on a variety of factors; that nominees for the court of appeals are more likely to be filibustered than the Supreme Court nominees; that filibusters are more likely toward the end of the Presidents term; and that the decision whether to filibuster a nominee will depend on expectations about future nominees and the type of reputation the Senate minority wants to develop.