An open letter to Congressman Gingrich.

• Author: Ackerman, Bruce
• Position: Newt Gingrich's proposal to change House Rules on voting for legislation to raise income taxes

We urge you to reconsider your proposal to amend the House Rules to require a three-fifths vote for enactment of laws that increase income taxes.(1) This proposal violates the explicit intentions of the Framers. It is inconsistent with the Constitution's language and structure. It departs sharply from traditional congressional practice. It may generate constitutional litigation that will encourage Supreme Court intervention in an area best left to responsible congressional decision.

Unless the proposal is withdrawn now, it will serve as an unfortunate precedent for the proliferation of supermajority rules on a host of different subjects in the future. Over time, we will see the continuing erosion of our central constitutional commitments to majority rule and deliberative democracy.

1. Original Intentions

   The present proposal is unprecedented, but it was anticipated by James Madison in a remarkably prescient discussion in The Federalist - a document that you rightly urge your colleagues to reread with care. The Federalist No. 58 explicitly addresses complaints concerning the constitutional design of the House. It concludes by confronting an objection "against the number made competent for legislative business." Madison's description perfectly fits the present proposal: "It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision."(2) Madison rejects this suggestion, but only after recognizing that it serves certain values - notably it might serve as a "shield to some particular interests, and another obstacle generally to hasty and partial measures."(3) Nonetheless, he finds these considerations "outweighed" by more fundamental ones:

   In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or in particular emergencies to extort unreasonable indulgences.(4)

   Madison's audience understood the backdrop of these remarks. The Articles of Confederation required congressional supermajorities for especially important subjects, including the raising and spending of money.(5) But the Philadelphia Convention decisively rejected such a system, repeatedly voting down key proposals that would have imposed supermajorities in legislative fields of special sensitivity.(6) In The Federalist No. 22, Alexander Hamilton explicitly defended this decision to break with the supermajority system of the Articles, insisting that ordinary legislation should not "give a minority a negative upon the majority."(7)

   The Founders' rejection of a selective supermajority rule for especially sensitive legislation was neither casual nor peripheral to their larger design. Instead, it was based on practical experience and careful consideration of the arguments on both sides. Nothing in the past two centuries of our history authorizes a simple majority of the...