30) McGinnis and Rappaport now use the theorem to claim that supermajorities are better, politically and constitutionally, than majorities.
They are instead arguments only for decisions made by big groups--by big juries and perhaps by supermajorities.
They recount the many potential benefits of supermajorities but hardly touch on the likeliest costs.
We appreciate that this careful analysis introduces a measure of pragmatism to an argument that might otherwise be implausible--implausible because it ignores the actual difficulty of formal constitutional amendment (what Professor Posner calls passing a pig "through two pythons" (54)), and implausible because it disregards supermajorities that speak outside of Article V.
Senate supermajorities failing to confer any surplus of legislative productivity may seem puzzling, but the reason is readily apparent.
Senate supermajorities provide legislative benefits to any party, whether or not it controls the presidency.
Tables 3D and 3E focus on the effect of unified government under particular conditions: levels of public liberalism and the presence of Senate supermajorities.
The best textual reading of the Constitution demonstrates that Congress, acting by majority vote under its explicit rulemaking authority, may require supermajorities
for votes on specific legislation.
It is that we might require supermajorities in order to encourage some care on the parts of jurors.
Another way to rationalize the use of supermajorities -- and especially unanimity requirements -- even where single requirements are issue, is to make some reasonable assumptions about the process of jury compromise.
We might begin with the danger of simple majority rules and juries rushing to judgment, in which case we prefer supermajorities and then suppress the product rule "because" we would otherwise dramatically overassess likelihoods.
The Articles of Confederation required congressional supermajorities
for especially important subjects, including the raising and spending of money.