Bare Majorities: On Voting in Constitutional Adjudication
In this thesis, I question the use of a majority voting rule (hereinafter 'majority rule') to control the constitutionality of legislation. This thesis mainly applies to jurisdictions that are generally considered 'well-functioning constitutional democracies,' such as Canada, Chile, Costa Rica, Uruguay, and the US in the Americas; Japan, Mongolia, and Taiwan in Asia; and Denmark, Finland, Greece, Iceland, Portugal, Lithuania, Norway, Slovakia, Slovenia, and Sweden in Europe. Specifically, I contend two things. First, constitutional courts' use of majority rule to control legislation's constitutionality is justified. Second, there are definitive reasons to contend that constitutional courts should use supermajority voting rules (hereinafter 'supermajority rules') to control such constitutionality. This thesis is divided into eight chapters plus an appendix. In the first two chapters, I introduce this thesis and delineate its scope. In the third chapter, I present a brief history of voting rules in Western civilisation, from Ancient Greece to the Enlightenment. In the fourth chapter, I introduce the main features, properties, or characteristics of voting rules, with an emphasis on comparing majority rule with supermajority rules. In the fifth chapter, I analyse whether majority rule's properties provide conclusive reasons for using this voting rule to control statutes' constitutionality. (I conclude that they do not.) In the sixth chapter, I analyse whether the main constitutional adjudication theories provide conclusive reasons for using majority rule to control legislation's constitutionality. (I also conclude that they do not.) In the seventh chapter, I formulate a 'core case' for replacing majority rule with supermajority rules to control legislation's constitutionality. In the eight chapter, I address some practical issues related to the implementation of supermajority rules in constitutional adjudication. Finally, I formulate my general conclusion, along with presenting in the appendix information about the kinds of constitutional courts—and the kinds of societies—to which this thesis applies.