Although supermajority rules historically emerged as a substitute for unanimity, today they are tasked with solving the problems of majority rule. In this work, I examine the origins and justifications of supermajority rules in the ancient, medieval, and early modern world, and then critically evaluate their use in contemporary political life. Supermajority rules are thought to be desirable insofar as they promote institutional stability, ensure that proposed changes have the support of a broad-based consensus, and protect vulnerable minorities. Yet their consequences for democracy are more complicated, and indeed more pernicious, than is usually appreciated. Through a defense of “complex majoritarian” institutions, I demonstrate that the aims of supermajority rule — most importantly, durable constitutionalism — can be attained without the normative costs associated with their use.
Read Adrian Vermeule’s review of Counting the Many in The New Republic (Jan. 14, 2014).
Democracy and Legal Change. New York: Cambridge University Press (Cambridge Studies in the Theory of Democracy), 2007. [Paperback edition, 2009.]
Since ancient Athens, democrats have taken pride in their power and inclination to change their laws, yet they have also sought to counter this capacity by creating immutable laws. In Democracy and Legal Change, I argue that modifying law is a fundamental and attractive democratic activity. Against those who would defend the use of “entrenchment clauses” to protect key constitutional provisions from revision, I seek to demonstrate historically the strategic and even unjust purposes unamendable laws have typically served, and to highlight the regrettable consequences that entrenchment may have for democracies today. Drawing on historical evidence, classical political thought, and contemporary constitutional and democratic theory, Democracy and Legal Change reexamines the relationship between democracy and the rule of law from a new, and often surprising, set of vantage points.