MCGINN1 06/04/98 1:32 PM Essay THE RIGHTS OF LEGISLATORS AND THE WRONGS OF INTERPRETATION: A FURTHER DEFENSE OF THE CONSTITUTIONALITY OF LEGISLATIVE SUPERMAJORITY RULES JOHN O. MCGINNIS† MICHAEL B. RAPPAPORT†† In 1995, the House of Representatives adopted a rule that re- quires a three-fifths majority of those voting to pass an increase in in- come tax rates.1 More than two years later, debate continues over a rule whose constitutionality has been controverted in Congress, in the courts, and in academia. Although a majority of the House passed the three-fifths rule again in 1997,2 several Representatives challenged its constitutionality in court.3 In the academic debate, the latest entry is Rights of Passage: Majority Rule in Congress by Jed Rubenfeld.4 Professor Rubenfeld claims that the three-fifths rule † Professor of Law, Benjamin N. Cardozo Law School. †† Professor of Law, University of San Diego School of Law. The authors would like to thank Larry Alexander, Carl Auerbach, Stuart Benjamin, John Duffy, Michael Herz, Shaun Martin, Michael Ramsey and Erela Katz Rappaport for their comments and assistance. 1.See H.R. Res. 6, 104th Cong. §106(a) (1995), reprinted in CONSTITUTION, JEFFERSON’S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H.R. DOC. No. 103-342, at 658 (1995) (Rule XXI(5)(c)). 2.See H.R. Res. 5, 105th Cong. §106(a) (1997) (re-adopting Rule XXI(5)(c) with minor modifications, but not changing the three-fifths requirement); RULES OF THE HOUSE OF REPRESENTATIVES, 105th Cong., Rule XXI(5)(c) (1997), available at <http://lcweb.loc.gov/ global/legislative/hrules/hrulestoc.html>. 3. See Skaggs v. Carle, 110 F.3d 831, 832-33 (D.C. Cir. 1997). This litigation has been ongoing since 1995. See Skaggs v. Carle, 898 F. Supp. 1, 2 (D.D.C. 1995). In the latest round, the United States Court of Appeals for the District of Columbia Circuit declined to entertain the claim of unconstitutionality on the merits, holding that the members of Congress who had brought the suit were unable to demonstrate that they had standing to sue. See Skaggs, 110 F.3d at 836. 4. Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 DUKE L.J. 73 (1996). Professor Rubenfeld’s essay has already attained a practical significance vouchsafed to few academic efforts. The one judge who reached the merits in Skaggs v. Carle relied in large 327 MCGINN1 06/04/98 1:32 PM 328 DUKE LAW JOURNAL [Vol. 47:325 violates the Presentment Clause of the Constitution,5 arguing that when the Clause refers to legislation that Congress has passed, the word “passed” means “passed by majority vote.”6 The academic debate began when seventeen law professors, in- cluding Professor Rubenfeld, published An Open Letter to Con- gressman Gingrich.7 Like Professor Rubenfeld’s essay, the Open Letter also maintained that the three-fifths rule was unconstitutional, but it relied on different arguments than does Professor Rubenfeld.8 We then rebutted the Open Letter in The Constitutionality of Super- majority Rules: A Defense.9 In his essay, Professor Rubenfeld does not defend the Open Letter,10 and even acknowledges that some of measure on Professor Rubenfeld’s arguments to find the three-fifths rule unconstitutional. See Skaggs, 110 F.3d at 846 (Edwards, J., dissenting). 5. The relevant section of the Presentment Clause states: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be pre- sented to the President of the United States . .” U.S. CONST. art. I, § 7, cl. 2. 6. See Rubenfeld, supra note 4, at 77-85. 7. Bruce Ackerman et al., An Open Letter to Congressman Gingrich, 104 YALE L.J. 1539 (1994). 8. The Open Letter argued that the Constitution’s specific supermajority requirements indicated that simple majority voting is required for the passage of ordinary legislation. See id. at 1541. The Open Letter also contended that a legislative supermajority rule conflicted with the intent of the Framers. See id. at 1540. 9. John O. McGinnis & Michael B. Rappaport, The Constitutionality of Supermajority Rules: A Defense, 105 YALE L.J. 483 (1995). We argued that the Rules of Proceedings Clause, U.S. CONST. art. I, § 5, cl. 2, gives each house of Congress the authority to pass any rules that relate to its internal operations unless those rules violate some language or principle in the Constitution, and that the Open Letter had failed to provide any such language or principle. See id. at 485-86. The only inference that can be drawn from the supermajority requirements in the Constitution is that the Constitution itself does not require a supermajority to pass a bill. See id. at 488. Similarly, the Framers’ discussions of supermajorities merely demonstrate that they did not wish to constitutionally require that bills pass with a supermajority. See id. at 490. We also demonstrated that the Open Letter mistakenly claimed that a two-thirds ma- jority was necessary to repeal the supermajority rule. See id. at 500-07. In actuality, House rules permitted a simple majority to waive or repeal any rule. See id. at 500-03. We also ar- gued that, in any event, the Constitution requires that a majority of a house has the authority to repeal a rule. See id. at 503-07. 10. Professor Rubenfeld acknowledges that the principal structural and historical argu- ments employed by the Open Letter are not sufficient to establish its conclusions. See Ruben- feld, supra note 4, at 76-77. Indeed, Professor Rubenfeld attempts to distance himself from the Open Letter by stating that he was a “signatory” but not an “author” of the letter. See id. at 73. It was not obvious to us that a signatory of an essay is less committed to its reasoning than its author. If someone intends to be a “signatory” of an essay, we believe that he ought to make his status explicit and explain how it differs from authorship. Another professor who signed the Open Letter, but now argues that the three-fifths rule is unconstitutional on different grounds, is Susan Low Bloch. See Susan Low Bloch, Con- gressional Self-Discipline: The Constitutionality of Supermajority Rules, 14 CONST. COM- MENTARY 1, 1-5 (1997) (paper given at Tenth Annual Lawyers Convention of the Federalist MCGINN1 06/04/98 1:32 PM 1997] LEGISLATIVE SUPERMAJORITY RULES 329 our criticisms were well taken.11 Instead, he now asserts that the word “passed” in the Presentment Clause means “passed by a major- ity.” To support this claim, Professor Rubenfeld offers a variety of hypotheticals intended to show that a majority requirement must be read into the Clause in order to avoid absurd consequences.12 For in- stance, he argues that our reading of the Clause would allow the House to preclude Members from voting while permitting non- members to vote.13 Professor Rubenfeld also contends that we are guilty of gross inconsistency in asserting that a house can require a supermajority to pass legislation but may not insulate legislative rules from repeal by a majority.14 We write to rebut this new attack on the constitutionality of the three-fifths rule. We show that Professor Rubenfeld’s parade of hor- rible hypotheticals is precluded by other constitutional clauses. Most significantly, we argue that the House Composition Clause15 requires that Members of the House be given the right to vote and precludes non-members from voting on the passage of legislation. We also show that our interpretation of the House Composition Clause would prevent another series of horrible hypotheticals depriving Members of their rights as legislators, whereas Professor Rubenfeld’s interpre- tation of the Presentment Clause would not. Further, we contend that there are strong reasons to conclude that the Framers did not use the term “passed” to mean “passed by majority vote.” Second, we argue that there is no inconsistency in an interpreta- tion of the Constitution that would permit Congress to pass super- majority rules but which would require those rules to be subject to repeal by a simple majority. Historical and structural principles re- quire a majority of the legislature to have the power to repeal rules, but no such principles preclude a rule that requires supermajority Society) (arguing that the three-fifths rule unduly enhances the power of the House of Repre- sentatives); Tenth Annual Lawyers Convention of the Federalist Society (C-SPAN television broadcast, Nov. 15, 1996) (explicitly stating that she does not rely on the argument that the three-fifths rule is unconstitutional because it is anti-democratic). For our debate with Profes- sor Bloch, see John O. McGinnis & Michael Rappaport, House Rules: Is a Supermajority Re- quirement for Tax Hikes Constitutional?, A.B.A. J., Mar. 1997, at 78. 11. See Rubenfeld, supra note 4, at 73-74. 12. See id. at 78-85. 13. See id. at 80-84. 14. See id. at 88-89. 15. The House Composition Clause provides: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” U.S. CONST. art. I, § 2, cl. 1. MCGINN1 06/04/98 1:32 PM 330 DUKE LAW JOURNAL [Vol. 47:325 support for passage of legislation. We conclude with a discussion of methodological principles. While Professor Rubenfeld interprets the Constitution through a se- ries of hypotheticals and appears to eschew inferences from history, structure, and purpose, we argue that these traditional interpretive canons are the only legitimate means to interpret the Constitution. Indeed, these canons are so deeply rooted that Professor Rubenfeld is forced to rely on them, even though he does so implicitly and selec- tively.