In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian. I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions.
In this post, I want to explore some of the context and purposes of the Constitution that also contributed to the Framers establishing a supermajoritarian constitution.
The Framers of the Constitution wanted to establish a more republican version of the English Constitution. They not only eschewed a monarchy and an hereditary aristocracy, but they also believed that the English Constitution of the Glorious Revolution had been corrupted (such as by giving Parliament unlimited authority and allowing the King to purchase votes in the legislature).
In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods. This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty. In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history. The distinctive interpretative method of republican constitutionalism is originalism: the meaning chosen by the people when the constitution is passed binds the people at later times.
In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element.
For those paying attention to the debate over the Common Core education standards (CC), dissent seems to be rising and is moving school board-by-school board, state-by-state, and legislature-by-legislature (link no longer available). This is unsurprising, and, I think, warranted given the opaque process that brought the Common Core standards to your child’s classroom. This can be contrasted with the adoption of state standards like the Massachusetts’s ones—long considered the toughest and most productive—that were adopted in the early 90’s after much public debate and revision, with input from a number of sources. The CC was designed as a nationalized curriculum, literally generated by “experts,” sans public comment and revision, and accepted by the states under the well-worn bargain of cooperative federalism contained in Obama’s Race to the Top education program.
Looming over politics in 2012 was Franklin Roosevelt’s admonition in his Second Bill of Rights speech (his 1944 State of the Union Address) for the creation of security. To revive its founding, the government must guarantee various now-fundamental rights including the “right to earn enough to provide adequate food and clothing and recreation;” the right to “adequate protection from the economic fears of old age, sickness, accident, and unemployment;” and “the right to a good education.” Together, “All of these rights spell security.”
In this view, security is the highest aim of American politics: “Necessitous men are not free,” FDR insisted. He wanted to replace the Declaration’s pursuit of happiness with security. And the rights involving employment and other forms of security are to be realized, he implies, through the final right he lists, the “right to a good education.” This right of all rights is the key to all freedoms.
The U.S. Constitution mandates that the executive branch will seek the “advice and consent” of the Senate to treaties with foreign powers. Thus, George Washington as President once determined to “advise and consult” with the Senate on a treaty matter involving negotiations with Indian tribes. Accompanied by his secretary of war, Henry Knox, the president presented himself before the Senate while the clerk read out the main points that concerned Washington – thus seeking a point-by-point constitutional “advice and consent.” Following this dramatic entrance, Washington was ushered out of the chamber and cooled his heels outside while what was later to become known as the “world’s greatest deliberative body” debated how to proceed.