Symmetric Entrenchment: A Constitutional and Normative Theory

In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue. First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment. In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison - comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments. On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments - entrenchments that are enacted under the same supermajority rule that is needed to repeal them - are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures

The Constitution and the Language of the Law

A long-standing debate exists over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence. This Article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like “Letters of Marque and Reprisal,” that are unambiguously technical, and terms, like “good behavior,” that are ambiguous in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers whether a term should be given its legal meaning or its ordinary meaning. The Article explains how to determine whether a document is written in the language of the law. Unsurprisingly, the most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, a document is more likely to be written in legal language because that language allows more precision. The language of similar documents provides additional evidence. That other constitutions at the time were written in the language of the law militates in favor of reading the Constitution in that same language. The Article supplies strong evidence that the Constitution is written in the language of the law. The Article is the first to count the legal terms in the Constitution and approximates them at one hundred. Moreover, the Constitution’s text assumes the application of legal interpretive rules, both blocking the operation of certain legal interpretive rules and calling for the application of others. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues. The Constitution’s legal language has important theoretical and practical significance. Theoretically, it suggests that original-methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to accurately determine its meaning. Practically, the richness of the idiom of the language of the law provides resources to address otherwise unresolvable interpretive questions. As a result, much of modern originalist scholarship about specific provisions depends for its force on reading the Constitution in the language of the law

Supermajority Rules and the Judicial Confirmation Process

In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges–an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own political and policy preferences. The case for applying an appropriately framed supermajority confirmation rule to Supreme Court justices has some merit, because these justices have substantial power to entrench new norms that would otherwise have to go through the stringent supermajoritarian process of constitutional amendment. The most substantial costs of the rule are holdout costs, which are likely to be particularly high at the beginning of the rule\u27s operation. These costs could be reduced if the change to the supermajority rule were itself a product of bipartisan agreement applicable to a future President. We caution that a supermajority rule initiated through filibuster by one party is likely not to be beneficial because the holdout costs would be very high as the first Presidents attempted to prevent the new rule from sticking. In contrast, for lower federal courts, we think the supermajority confirmation rule is a mistake. Lower court justices lack the ability to make substantial constitutional entrenchments without support from the Supreme Court. Moreover, the thousand judges of the lower courts offer a real possibility of beneficial jurisprudential diversity that can improve judicial output. A supermajority rule would decrease such diversity. Second, we consider the use of a committee supermajority rule to require the chairman of the Senate judiciary committee to hold hearings on nominees unless a substantial supermajority of committees members were opposed. This rule would end the practice that has developed in both parties of denying hearings to well qualified nominees and assure fairer discussion and deliberation