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Is the filibuster unconstitutional?
The Washington Post ^ | 15 May 2012 | Ezra Klein

Posted on 05/15/2012 11:49:08 AM PDT by 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.

(Excerpt) Read more at washingtonpost.com ...


TOPICS: Constitution/Conservatism; Editorial; Government; Politics/Elections
KEYWORDS: congress; constitution; filibuster

(Graph: Todd Lindeman; Data: Senate.gov)

1 posted on 05/15/2012 11:49:08 AM PDT by Theoria
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To: Theoria

The constitution does not, nor would it, detail every permitted action. This is like saying that oral arguments before the Supreme Court are not constitutional, as it’s not written in there.


2 posted on 05/15/2012 11:52:44 AM PDT by kingu (Everything starts with slashing the size and scope of the federal government.)
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To: Theoria
Until now, I thought Congress was one of three co-equal branches of government and as such could not be overruled by either the executive or legislative branches. Thus, they can establish their own rules and do things as they please without outside interference.

My bad ...

3 posted on 05/15/2012 11:53:35 AM PDT by Zakeet (Obama loves to wok dogs)
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To: Theoria

“Is the filibuster unconstitutional?”

No.


4 posted on 05/15/2012 11:53:35 AM PDT by Tublecane
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To: Theoria
I don't have a big problem with the filibuster itself.OTOH I have a huge problem with a legislator being able to simply *declare* that he/she will filibuster and it's deeded to have happened.The legislator involved should be required to TALK...non-stop...in order for it to be valid.Like in Mr Smith Goes To Washington.

And BTW...the fact that Common Cause opposes them strengthens my support of them.

5 posted on 05/15/2012 11:54:26 AM PDT by Gay State Conservative (Julia: another casualty of the "War on Poverty")
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To: Theoria

These questions are never asked when republicans hold majorities.


6 posted on 05/15/2012 11:55:35 AM PDT by Perdogg
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To: Theoria

Generally speaking, anything that makes it harder for the government to accomplish anything should be considered a positive good.


7 posted on 05/15/2012 11:56:39 AM PDT by jdege
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To: Theoria

At least Mr. Klein mentioned the Constitution gives each house of Congress the set its own rules: “determine the Rules of its Proceedings.”

If the liberals want to end the filibuster than all Harry Reid needed to do was to get rid of the rule when the new Congress was seated but he didn’t. For example, House Speaker Reid in 1890 got rid of the rule allowing a minority to have an effective veto over legislation by not “attending” House proceedings and denying the House a quorum.


8 posted on 05/15/2012 12:00:12 PM PDT by C19fan
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To: Theoria
Whether or not it was a mistake is immaterial.

From Article 1, Section 5:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."
9 posted on 05/15/2012 12:00:25 PM PDT by Sparticus (Tar and feathers for the next dumb@ss Republican that uses the word bipartisanship.)
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To: Theoria
Whether or not it was a mistake is immaterial.

From Article 1, Section 5:

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."
10 posted on 05/15/2012 12:00:47 PM PDT by Sparticus (Tar and feathers for the next dumb@ss Republican that uses the word bipartisanship.)
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To: Gay State Conservative

Yep. They need to actually do it. The threat is not enough. The same is when a party says they don’t have the votes. Fine, but still vote. Put your vote in the records of infamy.


11 posted on 05/15/2012 12:02:28 PM PDT by Theoria (Rush Limbaugh: Ron Paul sounds like an Islamic terrorist)
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To: Tublecane; All

you are incorrect- when there is a rat in the WH who wants to be king, ruler and demands to get everything he wants, then the filibuster is unconstitutional...

when there’s a Republican president, the filibuster is considered necessary patriotic dissent...


12 posted on 05/15/2012 12:02:58 PM PDT by God luvs America (63.5million pay no federal income tax then vote demoKrat)
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To: Theoria

Interesting that this should become an issue just now. The Left anticipating losing the Senate in November?


13 posted on 05/15/2012 12:02:58 PM PDT by FrdmLvr (culture, language, borders)
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To: Theoria
From Article 1. Section 5.

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

As the Senate has determined that its rules require 60 votes to gain “cloture” - then the making and enforcing of such a rule is Constitutional.

But amazing that when Democrats hold filibuster power in a Republican dominated Senate - the filibuster rule is enshrined in U.S. law and a necessary check on majority rule; but when Republicans hold filibuster power in a Democrat dominated Senate - it is somehow Unconstitutional 0r at least “extra” Constitutional.

One might think they had bias or something!

14 posted on 05/15/2012 12:03:31 PM PDT by allmendream (Tea Party did not send GOP to DC to negotiate the terms of our surrender to socialism)
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To: Theoria
Is the filibuster unconstitutional?

No.

The House and Senate may set their rules of operation as a co equal branch with the Supreme Court.

A SCOTUS attempt to review those rules would be unconstitutional and cause for impeachment.

15 posted on 05/15/2012 12:04:46 PM PDT by Navy Patriot (Join the Democrats, it's not Fascism when WE do it and the law is what WE say it is.)
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To: Theoria

What are the Senate (and the House, for matter) rules for a voting quorum? The reason I ask is, Democrats in both Indiana and Wisconsin—within the past year—have walked out of legislatures to prevent the business of government from moving forward. Should that action too, be considered un-Constitutional?


16 posted on 05/15/2012 12:05:53 PM PDT by Lou L (The Senate without a filibuster is just a 100-member version of the House.)
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To: Gay State Conservative

“I have a huge problem with a legislator being able to simply *declare* that he/she will filibuster and it’s deeded to have happened.The legislator involved should be required to TALK...non-stop...in order for it to be valid.Like in Mr Smith Goes To Washington.”

I don’t really understand this filibuster purism. It’s gotta be some kind of nostalgia, along the lines of “in the old days we had to walk a mile to school uphill both ways in the dark during snowstorms.” Them deeming a filibuster having taken place without one actually taking place is a way to exploit the rules to get around a vote, just as old-fashioned filibustering was a means of exploiting the rules. There is nothing about the inherent nature of talking for hours on end that makes it a more legitimate means of vote avoidance.


17 posted on 05/15/2012 12:06:26 PM PDT by Tublecane
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To: Theoria

Oh here we go...now Ezra has been handed Harry Reid’s talking point. These rats see the writing on the wall and it’s curtains for tham in November. So their only path is to try and neuter the effects of being in the minority. Fuggetaboutit...we remember, the “we won” President and Pelosi/Reid years. With disdain. It is going to take years to undo their damage.


18 posted on 05/15/2012 12:08:42 PM PDT by SueRae (The Tower of Sauron falls on 11.06.2012)
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To: kingu

“The constitution does not, nor would it, detail every permitted action. This is like saying that oral arguments before the Supreme Court are not constitutional, as it’s not written in there.”

Exactly. The Framers may have intended for laws to pass by simple majority, but who’s to say when a majority can properly be counted? What if a ragtag group of senators gather on the capital steps and count hands? Does constitute a proper vote? No, because Senate rules forbid it. Votes have to be counted in a certain way under certain conditions.


19 posted on 05/15/2012 12:10:57 PM PDT by Tublecane
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To: Theoria
Reid, who has traditionally been a defender of the filibuster, took to the Senate floor to apologize to all the reformers he had stymied over the years.

“The rest of us were wrong,” he said. “If there were anything that ever needed changing in this body, it’s the filibuster rule, because it’s been abused, abused and abused.”

That's pitiful. His tune will change come November when the Senate changes hands by a small majority to the Republicans. Democrats perfected the fillibuster and make it a near constant when Bush tried to appoint SC Justices.

20 posted on 05/15/2012 12:13:03 PM PDT by Tenacious 1 (With regards to the GOP: I am prodisestablishmentarianistic!)
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To: Theoria

When Republicans control the Senate, the filibuster is an essential tool to preserve Democracy. When Democrats control the Senate, the filibuster is not only “unconstitutional” but and evil tool used to obstruct the will of the people.

Philosophically, I’m not sure I agree with the filibuster. Any legislation must pass both houses of Congress and be signed by the President, and stand up to Judicial review. I’m not sure it is right that 41% of the Senate should be able to block any bill, approved by the other 59% of the Senate, a over 50% of the House and the POTUS.

Practically speaking, I love the filibuster because 95% of laws that Democrat congresses try to pass and probably 60% of laws Republican congresses try to pass are bad for the country and/or go beyond the limited powers granted to the Federal government by the Constitution. From a strictly, practical standpoint, anything that causes fewer Federal laws and programs to be passed, is more often than not, a good thing.


21 posted on 05/15/2012 12:13:08 PM PDT by Above My Pay Grade (The candidate I vote for will NOT have a CARE after his name.)
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To: Theoria

“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.”

What a crock. Firstly, there’s a reason original intent does not control proper constitutional interpretation. It doesn’t matter what they intended, it matters what they wrote. And the Framers let Congress form its own rules, as is perfectly appropriate.

Also, it’s not correct to say that a supermajority is required to pass anything. Laws still pass by simple majority. It’s just that there needs be a supermajority to get there. A petty point, perhaps, but true.


22 posted on 05/15/2012 12:16:02 PM PDT by Tublecane
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To: Zakeet

That is my understanding too. I doubt Scotus will mess with the filibuster. Why risk having your decision thrown back in your face and ignored? What could Scotus do, toss the resisting Senators in jail for contempt? Such a fight would not be worth the flak.


23 posted on 05/15/2012 12:19:19 PM PDT by Jacquerie (No court will save us from ourselves.)
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To: Above My Pay Grade

Sure. I would say, throw a graph of the national debt and problems we have had on top of the rise of the filibuster. It sure looks like we are shooting our self the bird.


24 posted on 05/15/2012 12:19:32 PM PDT by Theoria (Rush Limbaugh: Ron Paul sounds like an Islamic terrorist)
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To: Theoria

If they’re printing this article, then they must have internals that show a 60+ seat Senate for Conservatives.....


25 posted on 05/15/2012 12:20:02 PM PDT by cincinnati65 (Romney is not MY candidate for President in 2012.)
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To: Lou L
What are the Senate (and the House, for matter) rules for a voting quorum? The reason I ask is, Democrats in both Indiana and Wisconsin—within the past year—have walked out of legislatures to prevent the business of government from moving forward. Should that action too, be considered un-Constitutional?

It depends on the state constitution. They govern and make their own rules. That's why several states have balanced budget ammendments and others run deficit spending as the everyday norm. It's aslo why WI was able to get around it and why IN could not. It depends on each state's own constitution.

26 posted on 05/15/2012 12:21:25 PM PDT by Tenacious 1 (With regards to the GOP: I am prodisestablishmentarianistic!)
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To: Theoria

“Is the filibuster unconstitutional?”

My answer: Only when there is a Republican majority.


27 posted on 05/15/2012 12:21:33 PM PDT by Pearls Before Swine
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To: Lou L

“The reason I ask is, Democrats in both Indiana and Wisconsin—within the past year—have walked out of legislatures to prevent the business of government from moving forward. Should that action too, be considered un-Constitutional?”

That’s a state issue, and has nothing to do with the Constitution. Unless you want to argue them walking out deprived the people of a republican form of government. But that part of the Constitution, so far as I know, has never been enforced.


28 posted on 05/15/2012 12:21:41 PM PDT by Tublecane
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To: Tublecane
There is nothing about the inherent nature of talking for hours on end that makes it a more legitimate means of vote avoidance.

I respectfully dissagree. Our politicians are inherently lazy. It is a lot of work to organize a traditional fillibuster where senators take turns arguing for days on end until they either quit talking or the other sides offers to continue discussion of a bill.

One member yelling, "Fillibuster" is too easy. A fillibuster should require a healthy participation and passionate commitment.

That said, I agree, it is constitutional per the rules.

29 posted on 05/15/2012 12:25:17 PM PDT by Tenacious 1 (With regards to the GOP: I am prodisestablishmentarianistic!)
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To: Theoria

This is a rule established by the Senate. The Senate has the power to sustain or abolish. the Supreme Court has no dog in this fight. sd


30 posted on 05/15/2012 12:27:02 PM PDT by shotdog (I love my country. It's our government I'm afraid of.)
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To: Theoria
I don't think the filibuster is the problem.

The problem is that "debate" is all for show now, as the party blocs pre-decide what the outcomes will be, so "debate" as intended to sway thought is now an anachronism.

Personally, I lay a lot of the blame for this on the 17th amendment. Once Senators had to raise funds for election campaigns, the need for party blocs arose so that Senators from affluent states can help fund Senators from smaller states. Senators banded together to pool funds into national committees, and now the national committees decide what the vote on a matter will be and the Senators vote the party line.

I can't recall a recent debate that ever swayed a Senator's opinion.

-PJ

31 posted on 05/15/2012 12:28:12 PM PDT by Political Junkie Too (If you can vote for President, then your children can run for President.)
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To: Theoria

Do these people ever actually read the Constitution??

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”

The filibuster is nothing more than a parliamentary roadblock to slow or block legislation from successfully passing throgh the body. The rule governing filibusters can be changed at the beginning of a new congress or at any other time if a majority chooses to do so.

This article is a joke.


32 posted on 05/15/2012 12:38:14 PM PDT by cotton1706
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To: Tublecane
there’s a reason original intent does not control proper constitutional interpretation. It doesn’t matter what they intended, it matters what they wrote. And the Framers let Congress form its own rules, as is perfectly appropriate.

I respectfully disagree on your first point and do agree on the second. When matters are argued before the SC, the interpretation of the constitution is paramount. It is the source of much judicial activism on the left. Abortion was decided on Privacy issues. Why? Because there is nothing in the constitution that would allow the SC to rule on abortion. Therefore it would not be heard and should have been left for the states to legislate (barring an amendment to the US constitution).

So when matters of the constitutionality of laws (not senate/house rules) are brought before the court, Justices perform due diligence, in consideration of the argued interpretation of the constitution, to rule on the validity of said litigators case. The judges are supposed to research case law and historical context from present legal sources to the founders own papers and declaration of independence (on occasion). The intent of the constitution is indeed important as the founders put it in print. Otherwise you would get judges citing international and European law to decide what is constitutional and what is not.

It is not uncommon for constitutional arguments to come down to a comma or specifically placed period (2A). Yes, grammar and punctuation matter, but the intent as it was written by the founders is what is important to govern the nation.

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.

33 posted on 05/15/2012 12:41:04 PM PDT by Tenacious 1 (With regards to the GOP: I am prodisestablishmentarianistic!)
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To: Tenacious 1

“Our politicians are inherently lazy.”

I’m glad they are. It’s one of the few things we can rely on to keep new laws at moderate flood instead of Old Testament flood.

“It is a lot of work to organize a traditional fillibuster where senators take turns arguing for days on end until they either quit talking or the other sides offers to continue discussion of a bill.”

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?

“One member yelling, ‘Fillibuster’ is too easy. A fillibuster should require a healthy participation and passionate commitment.”

We could come up with a new name for it, if you insist. It seems this argument is not legal nor practical, but, I don’t know, aesthetic, or something. Who cares what makes for a pure and beatiful filibuster, really? It’s just a means to an end.


34 posted on 05/15/2012 12:42:14 PM PDT by Tublecane
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To: Theoria

I don’t know how many have read the second link you gave to the Harvard Journal site for Bondurants full write up of his position but I think it is worth the read. It gives the accidental history accurately and shows more than just the usual leftist reasoning.


35 posted on 05/15/2012 12:48:02 PM PDT by KC Burke (Plain Conservative opinions and common sense correction for thirteen years.)
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To: Tublecane
Who cares what makes for a pure and beatiful filibuster, really? It’s just a means to an end.

I see your point and am a fan of fillibuster now. But objectively, I will get pissed off when Romney (hopefully) goes to nominate a Constitutional Constructionist judge (hopefully) and his nominees start to get fillibustered again. I suspect you will too.

I believe the republicans (most) would be more passionate about real fillibusters than the dems ever would be. And I do agree, the less the government does the better.

But we are going to need 60 votes in the Senate to repeal Obamacare because of the Fillibuster. Will we have 60 seats in the Senate?

36 posted on 05/15/2012 12:50:04 PM PDT by Tenacious 1 (With regards to the GOP: I am prodisestablishmentarianistic!)
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To: Theoria
Is the filibuster unconstitutional?,

Only when used by the GOP.

37 posted on 05/15/2012 12:50:14 PM PDT by kabar
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To: Theoria

Funny how these scumbag lawyers, but I repeat myself, had no problem with this when W as President.


38 posted on 05/15/2012 12:58:57 PM PDT by Drill Thrawl (The United States of America, a banana republic since 1913)
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To: Tublecane
“One member yelling, ‘Fillibuster’ is too easy. A fillibuster should require a healthy participation and passionate commitment.”

It takes time to work out all the secret payoffs, can't be done on the floor.

39 posted on 05/15/2012 1:06:42 PM PDT by itsahoot (I will not vote for Romney period.)
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To: Tenacious 1

You systematically confuse intent with what is written in the Constitution. Intent is precisely what is not written down. Intent is what you intended to write down, or what we guess they intended to write down. Only what is actually written controls.


40 posted on 05/15/2012 1:11:34 PM PDT by Tublecane
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To: Tenacious 1

“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.


41 posted on 05/15/2012 1:16:04 PM PDT by Tublecane
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To: Theoria
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.

42 posted on 05/15/2012 1:18:43 PM PDT by Drill Thrawl (The United States of America, a banana republic since 1913)
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To: Tublecane
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.

43 posted on 05/15/2012 1:21:35 PM PDT by Tenacious 1 (With regards to the GOP: I am prodisestablishmentarianistic!)
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To: Theoria; ding_dong_daddy_from_dumas; DoughtyOne; Gilbo_3; Impy; stephenjohnbanker

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.


44 posted on 05/15/2012 1:33:56 PM PDT by sickoflibs (Romney is a liberal. Just watch him closely try to screw us.)
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To: Theoria
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.

45 posted on 05/15/2012 1:38:16 PM PDT by x
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To: kingu

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.


46 posted on 05/15/2012 2:31:25 PM PDT by Sgt_Schultze (A half-truth is a complete lie)
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To: Tublecane
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.

47 posted on 05/15/2012 9:56:48 PM PDT by supercat (Renounce Covetousness.)
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To: 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”

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


48 posted on 05/16/2012 12:13:19 PM PDT by Tublecane
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To: supercat

“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.


49 posted on 05/16/2012 12:18:28 PM PDT by Tublecane
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