Academic

McGinnis & Rappaport on Condorcet & Supermajority Rules

By Lawrence Solum

John O. McGinnis and Michael B. Rappaport (Northwestern University - School of Law and University of San Diego - School of Law) have posted The Condorcet Case for Supermajority Rules (Supreme Court Economic Review, 2008) on SSRN. Here is the abstract:

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 modifications 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. First, we suggest that due to the existence of voting blocs, the number of independent decisionmakers in a legislature is less than the nominal number of legislators. Reducing the number of decisionmakers decreases the advantages of majority rule compared to supermajority rule.

Given the reduced number of decisionmakers, we then explore situations when supermajority rules are superior. Supermajority rule may be more desirable than majority rule if the legislature schedules more votes on bad than good legislation. Supermajority rule may also be superior to majority rule when legislators are subject to biases. Further, supermajority rules may also have feedback effects, which may raise the skill levels of legislators, again improving the effects of supermajority rule over majority rule. Such feedback effects may help supermajority rules correct for central problems in democracy, like special interests and partisanship.

Finally, 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.

This is another piece in McGinnis & Rappaport's ongoing project of developing a "supermajoritarian" theory of the Constitution.  Highly recommended.

Full post as published by Legal Theory Blog on January 15, 2008 (boomark / email).