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Rights of Passage: Majority Rule in Congress, 46 DUKE LAW JOURNAL 73 (1996)


The United States government is a government not of rigorously separated powers, but of overlapping and concurrent powers: a government of checked and balanced powers. What strikes the balance? A few spare words of the Constitution. This is why the efforts of one body of government to alter the long-established understanding of those words are taken so seriously. In a complex structure, small changes in one body's movements can result in systemic shifts.

A case in point involves House Rule XXI(5)(c), adopted by the House of Representatives in January 1995. Under this rule, no bill proposing to raise federal income taxes "shall be considered as passed" by the House without a three-fifths approving vote. This "three-fifths rule" marks the first time in history that the House has purported to alter the number of votes required to make a bill law.

Last year, seventeen law professors published an Open Letter (of which I was a signatory, but not an author) opining that the three-fifths rule is unconstitutional. A recent essay by Professors John McGinnis and Michael Rappaport criticizes the Open Letter. This Essay is not so much a response to their criticisms (some of which are well taken) as an attempt to move the debate beyond its current position. The three-fifths rule, narrowly tailored though it may seem, raises profound constitutional issues that the commentary so far has not grasped.

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