The Constitutionality of Legislative Supermajority Requirements: A Defense
![handle is hein.journals/ylr105 and id is 515 raw text is: The Constitutionality of Legislative
Supermajority Requirements:
A Defense
John 0. McGinnist and Michael B. Rappaporttt
INTRODUCTION
On the first day of the 104th Congress, the House of Representatives
adopted a rule that requires a three-fifths majority of those voting to pass an
increase in income tax rates.' This three-fifths rule had been publicized during
the 1994 congressional elections as part of the House Republicans' Contract
with America. In a recent Open Letter to Congressman Gingrich, seventeen
well-known law professors assert that the rule is unconstitutional.3 They argue
that requiring a legislative supermajority to enact bills conflicts with the intent
of the Framers. They also contend that the rule conflicts with the
Constitution's text, because they believe that the Constitution's specific
supermajority requirements, such as the requirement for approval of treaties,
indicate that simple majority voting is required for the passage of ordinary
legislation.4
t Professor of Law, Benjamin N. Cardozo Law School.
tt Professor of Law, University of San Diego School of Law. The authors would like to thank Larry
Alexander, Akhil Amar, Carl Auerbach, Jay Bybee, David Gray Carlson, Lawrence Cunningham, Neal
Devins, John Harrison, Michael Herz, Arthur Jacobson, Gary Lawson, Nelson Lund, Erela Katz Rappaport,
Paul Shupack, Stewart Sterk, Eugene Volokh, and Fred Zacharias for their comments and assistance.
1. See RULES OF THE HOUSE OF REPRESENTATIVES, EFFECTIVE FOR ONE HUNDRED FOURTH
CONGRESS (Jan. 4, 1995) [hereinafter RULES] (House Rule XXI(5)(c)); see also id. House Rule XXI(5)(d)
(barring retroactive tax increases).
2. The rule publicized in the Contract with America was actually broader than the one the House
enacted. The publicized proposal would have required a three-fifths vote to pass a tax increase. See
CONrTRAcr wrTH ARICA 8 (Ed Gillespie & Bob Schellhas eds., 1994).
3. See An Open Letter to Congressman Gingrich, 104 YALE LJ. 1539 (1995) [hereinafter Open Letter]
(signed by Bruce Ackerman and 16 others).
4. A group of members of the House of Representatives challenged the constitutionality of the three-
fifths rule in federal district court. See Skaggs v. Carle, No. 95-251, 1995 U.S. Dist. LEXIS 13772 (D.D.C.
Aug. 23, 1995). The district court dismissed the suit on grounds of equitable discretion, stating that
federal courts should generally refrain, as a matter of policy, from intruding in the name of the
Constitution upon the internal affairs of Congress at the behest of lawmakers who have failed to prevail
in the political process. Id, at *5-6. The decision is being appealed. See Benjamin Sheffner, Judge
Jettisons Lawsuit on New Tax-Hike Rule, ROLL CALL, Sept. 4, 1995, at 3.
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The Constitutionality of Legislative Supermajority Requirements: A Defense
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