We (the Supermajority of) the People: The Development of a Rationale for Written Higher Law in North American Constitutions

Abstract

The author traces the origins of the supermajority principle to the resolution of a papal schism in 1179 A.D., shows how the principle might have been imported into England and later crossed the Atlantic Ocean to be used in the constitutions of the original colonies and, ultimately, the U.S. Constitution. In the context of the supermajority principle's use in the U.S. Constitution, the author shows how the supermajority principle was absolutely crucial in resolving the struggle between the small and large states during the debates of the constitutional convention. The author describes how two of the founding fathers, James Madison and Alexander Hamilton, viewed the supermajority device differently, based on their respective experiences with the supermajority principle. Through her analysis, she sets forth the definitive proof of the authorship of Federalist 58. The author of Federalist 58 is Alexander Hamilton, not James Madison, as is commonly believed. Finally, she demonstrates how the supermajority principle was used not only as a compromise device but as a device to demonstrate popular will and signifying written higher law in the ratification and amendment processes of the U.S. Constitution.

Keywords: supermajority, North American constitutions, U.S. Constitution, written higher law, The Federalist Papers, Alexander Hamilton, James Madison, weighted voting, William Penn, James Harrington, Algernon Sidney, constitutional conventions, colonial period