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Monday, June 25, 2007

McGinnis and Rappaport Reply

McGinnis and Rappaport have just posted a reply on Northwestern's Colloquy to my criticism of their article on supermajoritarianism and originalism.  Nothing terribly suprising there.  I guess I'd say they've mischaracterized the nature of my critique here and there -- but, then, they'd say I've mischaracterized portions of their argument here and there.

One substantive point that I think they have right is that, at points, I didn't carefully enough highlight that they focus on supermajoritarian voting rules rather than any enactments that happen to achieve supermajority consensus.  I certainly knew that that was their focus but I should have been clearer about why I sought to have them explain why laws that achieve supermajoritarian agreement might not rest on a similar footing.  I don't think their response on this score is perfect, in any case -- it can't just be the voting rule that ensures legitimacy (for the voting rule can also lead to compromises no one really wants), and at various points in the original essay something seems to follow from the achievement of agreement and consensus itself. 

One substantive area to which I was suprised to see that they didn't respond was what to do about their belief in other articles that  the ordinary law-making process is itself substantially supermajoritarian.  If they were right in 2002 that all law is meaningfully supermajoritarian, how can we distinguish between the two kinds of "entrenchments" and their respective legitimacy?  They sort of have an answer here, but not one that seems deeply principled.  If it is supermajoritarianism (in voting rules) itself that confers some form of "super-legitimacy," it still seems to stand to reason that all law is a form of norm entrenchment.  If that is right, they still have some explaining to do.

In any case, nothing that merits further replies from me.  I think the exchange was productive for all parties concerned and leave to readers to determine who has the better argument.

Posted by Ethan Leib on June 25, 2007 at 02:57 PM in Article Spotlight | Permalink

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