What if the framers had it wrong about simple majorities?

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Here are three instances in American history, out of many, when the rules of our system preserved a failed or suboptimal status quo against the views — and the votes — of a majority of Americans and their representatives.

In 2021, 232 members of the House of Representatives voted to impeach President Donald Trump for his role in summoning and provoking the mob that attacked and ransacked the U.S. Capitol building on Jan. 6. Not long after, 57 members of the Senate voted to convict Trump. But because the Constitution demands a two-thirds supermajority for conviction in an impeachment trial, the considered decision of a substantial majority of Congress — backed by a substantial majority of the public — was thwarted by the veto of a self-interested, partisan minority.

A couple of generations earlier, between 1971 and 1972, the vast majority of lawmakers in Congress — 354 members of the House and 84 members of the Senate — voted to pass the Equal Rights Amendment and send it to the states. Most Americans, according to surveys at the time, wanted to make the ERA the 27th amendment to the Constitution. And within five years of passage in Washington, legislatures in 35 states — which constituted a majority of the nation's legislators — had voted for ratification. But 35 states was three short of the three-fourths needed for the amendment to succeed. By the time the deadline for ratifying the ERA came in 1982, the amendment was essentially dead in the water.

Decades before that, in 1922, the Dyer Anti-Lynching Bill passed the House, 230-119. It was supported by President Warren G. Harding, a Republican, as well as the large Republican majority in the Senate. But that majority was not large enough to overcome a Democratic filibuster — spearheaded by Jim Crow lawmakers from the South — and the bill died before it could come to a vote. It would take a full century after the death of the Dyer bill for Congress to pass, and the president to sign, an anti-lynching bill into law.

The American political system — with its federalism, bicameralism and separation of powers — consists of overlapping majoritarian and countermajoritarian institutions designed to promote stability and continuity at the expense of popular government. Not content to build structural impediments to change, the framers of the Constitution also insisted on supermajority thresholds for a number of key actions: executive and judicial impeachment, ratification of foreign treaties and the passage and ratification of constitutional amendments. The Constitution also allows for the Legislature to make its own rules regarding its conduct, and both chambers of Congress have, at different points in their histories, adopted de facto supermajority rules for passing legislation.

Defenses of supermajority rules tend to rest on claims related to what appears to be common sense. The argument goes like this: Supermajority rules stabilize our political institutions, encourage deliberation, secure consensus for change and protect minorities from the tyranny of overbearing majorities. But as political theorist Melissa Schwartzberg argues in her 2014 book, "Counting the Many: The Origins and Limits of Supermajority Rule," the story isn't so simple, and the actual value of supermajority rules isn't clear at all.

It is certainly true that supermajority rules promote stability of institutions and the norms that are supposed to govern them. There is a reason, after all, that the U.S. Constitution has only been amended 27 times in 235 years. But, Schwartzberg asks, "How can we determine which norms are worth stabilizing," since "for any given political community, different institutional arrangements could ensure security of expectations and make ordinary political life possible — even the set of rights and their scope could vary."

Do we defer to the wisdom of the framers? What if, in our estimation, they got something critical wrong? And even if they didn't, should the dead hand of the past so strongly outweigh the considerations of the present? Do we defer to wisdom and tradition under the assumption that stability is de facto evidence of consent?

But here's where we come to the Catch-22, because the stability of our system rests on supermajority rules so strong that they stymie all but the broadest attempts to change that system. And who is to say that stability is such a paramount goal? In a dynamic society — which is to say, in a human society — promoting stability with little institutional recourse for reform might ultimately be more disruptive because it creates friction, and thus energy, that will be released one way or another.

What of the claim that supermajority rules — like the filibuster or the ones that structure the constitutional amendment process — promote consensus? Here again, Schwartzberg says, we have to think carefully about what we mean. If by consensus, we mean the aggregate opinions of the community, then there might be a basis for supporting supermajority rules, although that raises another question: What is the threshold for success? The two-thirds demand for impeachment in the Senate, for example, is essentially arbitrary. So is the three-fourths of states threshold for ratifying a constitutional amendment. There is no rational standard to use here, only a feeling that "most" people want something.

If what we want out of a decision to remove a president or pass an amendment is an acclamatory consensus of this sort, then rather than set a supermajority rule — which would permit a minority to preserve a status quo that no longer commands the acclamatory support of the group — what we might use instead, Schwartzberg suggests, is a system that privileges serious and long-term deliberation so that the minority on a particular question feels satisfied enough to consent to the view of a simple majority, even if it still disagrees.

As for the question of minority protection from majority tyranny, one of the quirks of nearly all supermajority rules is that they make no distinction between different kinds of minorities. This means that they are as likely to protect and strengthen privileged and powerful minorities as they are to empower and defend weak ones. Looking at the American experience, we see much more of the former than we do of the latter, from the arc of the "slave power" in antebellum America to the specific case of the Dyer Anti-Lynching Bill to recent efforts to protect the civil rights of more vulnerable Americans.

This gets to the most powerful point Schwartzberg makes about the impact of supermajority rules on democratic life. Democracy, she writes, "entails a commitment to the presumption of epistemic equality among its citizens." Put another way, democracy assumes an equal capacity to judge one's interests — or at least what an individual believes is her interest. This epistemic equality is "manifested institutionally in formally equal voting power." In a democracy, our political institutions should affirm the fact that we are equal.

In the United States, ours do not. The rules of the game here tend to elevate the views and judgments of some citizens over others, to the point where under certain circumstances, small, factional minorities can rule with no regard for the views of the majority in their communities. Whether it is the supermajority rules of the Senate or the countermajoritarianism of the Electoral College and the Supreme Court, our system makes it clear that some voices are more equal than others.

One might still say that the wisdom of the framers and of past generations holds true. But as Americans struggle against their own countermajoritarian institutions and supermajoritarian rules to stop the ascendance of a wannabe authoritarian, I am not so sure it is so.