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Old 09-25-2012, 07:39 PM  
whoman69 whoman69 is offline
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Is the Filibuster Constitutional?

Is the filibuster unconstitutional?
Posted by Ezra Klein

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. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant writes.

And even then, filibusters were a rare annoyance. Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But that’s changed. Today, Majority Leader Harry Reid says that “60 votes are required for just about everything.”

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.”

In the end, the Constitution prescribed six instances in which Congress would require more than a majority vote: impeaching the president, expelling members, overriding a presidential veto of a bill or order, ratifying treaties and amending the Constitution. And as Bondurant writes, “The Framers were aware of the established rule of construction, expressio unius est exclusio alterius, and that by adopting these six exceptions to the principle of majority rule, they were excluding other exceptions.” By contrast, in the Bill of Rights, the Founders were careful to state that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

That majority vote played into another principle, as well: the “finely wrought” compromise over proper representation. At the time of the country’s founding, seven of the 13 states, representing 27 percent of the population, could command a majority in the Senate. Today, with the filibuster, 21 of the 50 states, representing 11 percent of the population, can muster the 41 votes to stop a majority in the Senate. “The supermajority vote requirement,” Bondurant argues, thus “upsets the Great Compromise’s carefully crafted balance between the large states and the small states.”

Establishing that the Founders intended Congress to operate by majority vote is different than saying that it’s unconstitutional for Congress to act in another way. After all, the Constitution also says that Congress has the power to “determine the Rules of its Proceedings.”

But as Bondurant notes, there’s precedent for the Supreme Court to review congressional rules: In 1892, in United States v. Ballin, the Court held that while “the Constitution empowers each house to determine its rules of proceedings,” it “may not by its rules ignore constitutional restraints or violate fundamental rights.” And while some may argue that the filibuster has, at this point, been around for well over a century, the Supreme Court has previously held that the fact that “an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.”

Bondurant makes a strong case. Will the Supreme Court buy it? I have no idea. But perhaps it’s a moot point. There’s evidence that some of the Senate’s most powerful members are preparing to take reform into their own hands. On Thursday, 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.”

http://www.washingtonpost.com/blogs/...p7QU_blog.html
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Old 09-25-2012, 07:52 PM   #2
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this was never a big issue until the Republicans decided to use it to block everything that Obama wanted to do.
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Old 09-25-2012, 08:02 PM   #3
La literatura La literatura is offline
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No, it's not unconstitutional. In order for something to be unconstitutional, it has to violate a specific clause/rule/amendment of the Constitution. The Constitution says that both houses can set their own rules for things like ending debate. Courts have no jurisdiction over this matter; it's entirely political.

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Old 09-25-2012, 08:03 PM   #4
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Originally Posted by BigRedChief View Post
this was never a big issue until the Republicans decided to use it to block everything that Obama wanted to do.
No, it was the Democrats with Bush judicial nominees. Republicans adopted the tactic.
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Old 09-25-2012, 08:06 PM   #5
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I think it's absurd to believe that the filibuster is unconstitutional.
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Old 09-25-2012, 08:13 PM   #6
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Quote:
Originally Posted by BigRedChief View Post
this was never a big issue until the Republicans decided to use it to block everything that Obama wanted to do.
Literature has it right. Sometime between the apocalyptic social wars of the 80s and the moment the rise of the oceans began to slow, democrats decided to use the filibuster to block Bush-nominated judges at an unprecedented rate stimulating some Republicans to threaten rule changes similar to those being contemplated by Harry Reid today.

Of course, in those days, Reid opposed the changes. It wouldn't surprise me if Ezra Klein wrote a blog in support of the grand traditions of the filibuster then either.
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Old 09-25-2012, 08:36 PM   #7
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Quote:
Originally Posted by patteeu View Post
Literature has it right. Sometime between the apocalyptic social wars of the 80s and the moment the rise of the oceans began to slow, democrats decided to use the filibuster to block Bush-nominated judges at an unprecedented rate stimulating some Republicans to threaten rule changes similar to those being contemplated by Harry Reid today.

Of course, in those days, Reid opposed the changes. It wouldn't surprise me if Ezra Klein wrote a blog in support of the grand traditions of the filibuster then either.
Judges are far different from blocking every piece of legislation that the president proposes. There is no equivilency.

You might like the results of this unprecedented use of the fillibuster but just wait until the Dems payback a R president and lets see if you still have a high opinion of the fillibuster.
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Old 09-25-2012, 08:41 PM   #8
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Quote:
Originally Posted by patteeu View Post
I think it's absurd to believe that the filibuster is unconstitutional.
I think that laid out a pretty good case for why it should be. Hope the SC hears it, curious how they'd rule.
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Old 09-25-2012, 09:27 PM   #9
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I think that laid out a pretty good case for why it should be. Hope the SC hears it, curious how they'd rule.
It laid out an explanation for why the constitution doesn't require a supermajority, but it didn't even begin to make a case for why the Senate shouldn't be allowed to set a rule like this.

The Senate retains the ability to change this rule with a simple majority so it's not a true supermajority requirement.
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Old 09-25-2012, 09:32 PM   #10
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Quote:
Originally Posted by BigRedChief View Post
Judges are far different from blocking every piece of legislation that the president proposes. There is no equivilency.

You might like the results of this unprecedented use of the fillibuster but just wait until the Dems payback a R president and lets see if you still have a high opinion of the fillibuster.
Yes, if anything, it's worse when it's done to block judges and appointees.

I haven't said anything about my opinion of the filibuster. I'm just trying to disabuse you of the myth that Republicans started this so-called abuse. Speaking of payback, it doesn't taste all that good does it?
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Old 09-25-2012, 10:45 PM   #11
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Quote:
Originally Posted by patteeu View Post
Literature has it right. Sometime between the apocalyptic social wars of the 80s and the moment the rise of the oceans began to slow, democrats decided to use the filibuster to block Bush-nominated judges at an unprecedented rate stimulating some Republicans to threaten rule changes similar to those being contemplated by Harry Reid today.
Yeah...that's not true.
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Old 09-25-2012, 10:46 PM   #12
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Quote:
Originally Posted by patteeu View Post
It laid out an explanation for why the constitution doesn't require a supermajority, but it didn't even begin to make a case for why the Senate shouldn't be allowed to set a rule like this.

The Senate retains the ability to change this rule with a simple majority so it's not a true supermajority requirement.
which would be filibustered
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Old 09-25-2012, 11:29 PM   #13
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I wonder in whose name is the lawsuit brought and doubt they would get the first court to find standing to bring the suit.
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Old 09-25-2012, 11:42 PM   #14
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Quote:
Originally Posted by Literature View Post
No, it's not. In order for something to be unconstitutional, it has to violate a specific clause/rule/amendment of the Constitution.


oh you mean like SEGREGATION

You are a ****ing tool
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Old 09-26-2012, 01:23 AM   #15
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Ah, filibusters. Yet another reason why Aaron Burr is the worst American that ever lived.
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