Is the filibuster unconstitutional?

The Washington Post ^ | 15 May 2012 | Ezra Klein

[Theoria]

According to Best Lawyers — “the oldest and most respected peer-review publication in the legal profession” — Emmet Bondurant “is the go-to lawyer when a business person just can’t afford to lose a lawsuit.” He was its 2010 Lawyer of the Year for Antitrust and Bet-the-Company Litigation. But now, he’s bitten off something even bigger: bet-the-country litigation.

Bondurant thinks the filibuster is unconstitutional. And, alongside Common Cause, where he serves on the board of directors, he’s suing to have the Supreme Court abolish it.

In a 2011 article in the Harvard Law School’s Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines. But to understand the argument, you have to understand the history: The filibuster was a mistake.

In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution.

[Tublecane]

“If Webster decides to change the definition of ‘Freedom’ or of ‘Liberty’ then the constitution ‘as written’ would take a whole different direction as the arguments before the SC would have citations from dictionaries submitted as evidence.”

Websters changing definitions is neither here nor there, as the correct way to interpret the Constitution is known as *original* meaning. What matters is what it meant at the time it was passed, not on down the road.

[Drill Thrawl]

This isn’t what the Founders intended.

But that doesn't matter when it come to the 2nd amendment. Or the 4th, or the 10th Or Article 1. But it matters for something cleary defined in article 2.

Additionaly Ezra Klein agrees with the moron. That by definition proves the lawyer is wrong.

[Tenacious 1]

What matters is what it meant at the time it was passed, not on down the road.

I see where we are now. We agree. The original intent of what the words meant when it was written is the point. The BS starts when litigators argue what the intent of the founders was.

[sickoflibs]

The funny thing is Mark Levin argued that filibustering judges was unconstitutional in his book Men in Black and on his radio show.

That was 2004 when Bush was POTUS and Republicans held the Senate and before Alito and Roberts were confirmed.

Naturally when Dems took the White House in 2009 he reversed that opinion.

I didnt buy it then either.

[x]

At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

In Federalist 22, Alexander Hamilton savaged the idea of a supermajority Congress, writing that “its real operation is to embarrass the administration, to destroy the energy of government and to substitute the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority.”

In Federal 58, James Madison wasn’t much kinder to the concept. “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”

______________

Yet I come across this from 1997: Madison & Hamilton Supported Super-Majorities . It's from the Senate Republican Policy Committee, Larry Craig [insert your reaction here], Chairman.

The Constitution itself, I believe, requires "supermajorities" to ratify treaties, and to amend the Constitution.

If Supreme Court Justices can in effect "rewrite" the Constitution, requiring more than a simple majority to confirm them would be in the spirit of the Constitution itself.

[Sgt_Schultze]

The Constitution also does NOT give the Supreme Court the authority to overrule a properly passed law. That is action the Court arrogated to itself. But if the Court did determine to wade into the business of either House, It’s likely those Justices who voted in contravention to the rulemaking abilities of those bodies would find themselves up on impeachment charges and likely removed.

[supercat]

Why do we want to make them do that work, though? Might they not feel it’s easier to give up and pass the bill, in that case? And do we want more bills passed, whether by pubs or dems? No. Then why not make it easier to block votes?

Because an old-style filibuster would tie up the Senate until it was resolved. The more time the Senate was tied up in filibusters, the less time it would have to attack freedom.

[Tublecane]

“The Constitution also does NOT give the Supreme Court the authority to overrule a properly passed law. That is action the Court arrogated to itself”

Well, no, not really. It’s just that many, many times they’ve been mistaken about that “properly” part.

[Tublecane]

“Because an old-style filibuster would tie up the Senate until it was resolved. The more time the Senate was tied up in filibusters, the less time it would have to attack freedom.”

I can see that happening. But I could equally, perhaps more, see the laziness we’ve established causing them to filibuster less when it isn’t automatic. Someone must have done a study on the relative frequency of filibusters since the deeming to have taken place without actually taking place process was instituted. Throw in the contemporary unease with oratory, and I’d think more bills would be passed if phonebook speeches were requisite.