To hear the new leaders of the House and the Senate announce to the world that they will vote for Duterte's choices, and then to hear them trumpet supermajorities
as though these were an unalloyed good, is to see cracks forming on a founding, constitutional principle.
They also invoke a very loose version of Rawls's veil of ignorance, speculating that supermajorities
today will not target vulnerable minorities because they cannot know whether they themselves will be the vulnerable minority tomorrow.
Now the Republicans--true heirs to the Anti-Federalists--are trying to entrench the kind of arbitrary fiscal limitations and requirements for congressional supermajorities
that the Founders rejected.
Constitution requires supermajorities
in certain circumstances - for example, it takes a two-thirds Senate vote to ratify a treaty.
Many shareholder activists are pushing for supermajorities
of independent outside directors with the ultimate goal of having the CEO be the only insider.
Under unified government, supermajorities
should increase the number of important laws passed.
In our imperfect world such spending programs would generally obtain supermajorities
of legislators, consisting both of the majority sustained by regular voters and the pocket boroughs of special interests.
Congressional rules can directly, or indirectly, require that supermajorities
support enactment of particular laws.
Proponents of the supermajority rule argue that the framers may have meant this list to be simply the minimal list of occasions that require supermajorities
and that they intended to allow Congress to add to the list.
The Open Letter's attempt to establish a constitutional requirement of majority rule fails because the only inference that can be drawn from the provisions requiring supermajorities
in certain instances is that the Constitution itself does not require a supermajority for the passage of legislation.
But majority-approved initiatives requiring supermajorities
are nothing new in California, as evidenced by last year's passage of Proposition 39, or 1978's Proposition 13.
The larger question, about why and where we require supermajorities
, is a topic saved for another day.