Over on Balkinization, I said that I am now working on a paper about “extramajoritarian rules.” An extramajoritarian rule is a procedure that a majority with a strong preference can invoke to work its will. Such a procedure is legal but is rarely used because it is inconsistent with other practices that are designed to protect minority rights or structure political debate. Some examples include: (1) the nuclear option in the Senate; (2) a discharge petition in the House of Representatives; (3) Court-packing; (4) Lords-packing; (5) the suspension of habeas corpus; and (6) jurisdiction-stripping. (I’ll talk about more examples later.)
Why am I interested in this? Constitutional design typically focuses on whether changes should require majority or supermajority support. In other words, people are asking how broad support for legal action must be before can be enacted. Another concern, though, is how strong that support must be–its preference intensity. How do we measure preference intensity? There are a couple of options. One is that you can place various procedural hurdles in the way of the majority. The more or more complex those are, the more determined the majority must be to act. Another answer is accountability for public officials. If people think that they could be voted out of office or lose their jobs for doing something, then their preference intensity for that policy must be great to proceed. A third answer involves legal norms. We just think that it is wrong for historical and cultural reasons to suspend habeas corpus, though people understand that this might be necessary in extreme cases. Similarly, the culture of the Senate is that the minority party should have significant powers, so using the nuclear option is frowned upon. And so on.
One final thought. All (or almost all) extramajoritarian rules can be paired with what we might call extraminoritarian obstruction. Put another way, the majority does not invoke its special powers unless the minority transcends the bounds of what is seen as reasonable opposition. More on that in a subsequent post.