Getting from Here to There : The Rebirth of Constitutional Constraints on the Special Interest State

This Essay was prepared for a 1999 symposium on "Supermajority Rules as a Constitutional Solution," and comments on John O. McGinnis & Michael B. Rappaport, Supermajority Rules as a Constitutional Solution, 40 Wm. & Mary L. Rev. 365 (1999). Although we agree with many aspects of the McGinnis & Rappaport analysis, we discuss two aspects which trouble us. First, we do not believe they have demonstrated that the interest groups that benefit under the existing majoritarian system would in fact support the adoption of a constitutional amendment that required the consent of a supermajority to pass certain spending legislation. Second, we contend that even if such an amendment could be formally proposed and ratified that it would do little to decrease the aggregate cost to society of she special interest legislation that Congress enacts