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Old 09-25-2012, 08:39 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 09-26-2012, 06:31 AM   #16
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Yeah...that's not true.
Link?
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Old 09-26-2012, 06:32 AM   #17
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which would be filibustered
No
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Old 09-26-2012, 06:42 AM   #18
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oh you mean like SEGREGATION

You are a ****ing tool
Huh? Maybe you could write out your thoughts in a cogent argument rather than smilies.

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Old 09-26-2012, 06:55 AM   #19
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There is no need to wait on the court now. It is looking increasingly likely that not only will the GOP fail miserably to gain control of the senate, but they will lose 1 more seat. It will be twelve years after this election before the democrats will again be in position to defend a significant number of seats in closely divided states. Now is the time to stick it to the GOP forever. Reid should change the rules. McConnell is not worthy of working with. It's clear that republicans are only committed to the Grover Norquist blackmail pledge - the Cancer on America that created obstruction, brought light to the astonishing lack of republican intellect, and exposed their sinister motives to destroy. This party is simply pathetic, hopelessly poisoned by the stupidity that bubbles up from the toxic waste of Texas politics.
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Old 09-26-2012, 10:51 AM   #20
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Originally Posted by Lightrise View Post
There is no need to wait on the court now. It is looking increasingly likely that not only will the GOP fail miserably to gain control of the senate, but they will lose 1 more seat. It will be twelve years after this election before the democrats will again be in position to defend a significant number of seats in closely divided states. Now is the time to stick it to the GOP forever. Reid should change the rules. McConnell is not worthy of working with. It's clear that republicans are only committed to the Grover Norquist blackmail pledge - the Cancer on America that created obstruction, brought light to the astonishing lack of republican intellect, and exposed their sinister motives to destroy. This party is simply pathetic, hopelessly poisoned by the stupidity that bubbles up from the toxic waste of Texas politics.
There's no point in waiting on the courts because they aren't going to change anything. If Harry Reid wants to change the rules, he should do it, but if he does it in the middle of a Congress, that will be one more precedent the democrats break that you guys will be blaming the GOP for when they decide to reciprocate.
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Old 09-26-2012, 12:32 PM   #21
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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
They hypocrisy of the left knows no bounds. Since when, has original constructionism been something the left gives a DAMN about. Only when it suits their interests.

What happened to living breathing constitution? Why care what the framers originally thought?
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Old 09-26-2012, 12:33 PM   #22
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Originally Posted by Lightrise View Post
There is no need to wait on the court now. It is looking increasingly likely that not only will the GOP fail miserably to gain control of the senate, but they will lose 1 more seat. It will be twelve years after this election before the democrats will again be in position to defend a significant number of seats in closely divided states. Now is the time to stick it to the GOP forever. Reid should change the rules. McConnell is not worthy of working with. It's clear that republicans are only committed to the Grover Norquist blackmail pledge - the Cancer on America that created obstruction, brought light to the astonishing lack of republican intellect, and exposed their sinister motives to destroy. This party is simply pathetic, hopelessly poisoned by the stupidity that bubbles up from the toxic waste of Texas politics.
hyperbole much?
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Old 09-26-2012, 02:15 PM   #23
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Originally Posted by Literature View Post
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.
It was answered in the article.
Quote:
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.”
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Quote:
Originally posted by Logical
When the boobs are a bouncin, the Chiefs will be trouncin
What the Raiders fan has said is true, our customs are different. What Al Davis has said is unimportant, and we do not hear his words.
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Old 09-26-2012, 02:17 PM   #24
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Originally Posted by Calcountry View Post
They hypocrisy of the left knows no bounds. Since when, has original constructionism been something the left gives a DAMN about. Only when it suits their interests.

What happened to living breathing constitution? Why care what the framers originally thought?
Just because they don't vote like you want, doesn't mean they don't follow the intent and meaning behind the original document. Hyperbole on your part.

I'd say this quote pretty much sums up our current circumstance.

Quote:
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.”
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Quote:
Originally posted by Logical
When the boobs are a bouncin, the Chiefs will be trouncin
What the Raiders fan has said is true, our customs are different. What Al Davis has said is unimportant, and we do not hear his words.
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Old 09-26-2012, 02:21 PM   #25
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Originally Posted by patteeu View Post
There's no point in waiting on the courts because they aren't going to change anything. If Harry Reid wants to change the rules, he should do it, but if he does it in the middle of a Congress, that will be one more precedent the democrats break that you guys will be blaming the GOP for when they decide to reciprocate.
To change the rules he needs a supermajority. You know that isn't happening.

Quote:
Depending on the number of all 100 senators "duly chosen and sworn" who are actually "present and voting", an amendment (change) to U.S. Senate Rule XXII can be difficult. Paragraph 2 of said rule states that "to amend the Senate rules...the necessary affirmative vote shall be two-thirds of the Senators present and voting." This means 67 senators if all 100 senators are "present and voting", but only 34 senators if under Rule VI, the minimum quorum of 51 senators, i.e., "a majority of the Senators duly chosen and sworn" is "present and voting."
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Quote:
Originally posted by Logical
When the boobs are a bouncin, the Chiefs will be trouncin
What the Raiders fan has said is true, our customs are different. What Al Davis has said is unimportant, and we do not hear his words.

Last edited by whoman69; 09-26-2012 at 02:28 PM..
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Old 09-26-2012, 02:43 PM   #26
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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.
Sorry to burst your bubble but I can't leave your revisionist history unchecked. The number of filibusters started rising greatly with the 103rd Congress in '93-'94. After a modest rise when Republicans took over, the number dipped each year from a high of 80 to 60-70. The numbers we are talking about now are 130 plus.

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Quote:
Originally posted by Logical
When the boobs are a bouncin, the Chiefs will be trouncin
What the Raiders fan has said is true, our customs are different. What Al Davis has said is unimportant, and we do not hear his words.
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Old 09-26-2012, 03:01 PM   #27
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I don't give a shit which party is misusing it - Congress is misusing it. It's going to get used more and more, and the government will get less and less done, unless we either get some bipartisan pissed-off-edness, or one party or the other gains such a crushing majority that they can either put some serious restrictions on it, or force it right the f*** out.
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Old 09-26-2012, 03:37 PM   #28
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I don't give a shit which party is misusing it - Congress is misusing it. It's going to get used more and more, and the government will get less and less done, unless we either get some bipartisan pissed-off-edness, or one party or the other gains such a crushing majority that they can either put some serious restrictions on it, or force it right the f*** out.
Nothing should get done, unless the consent of the governed, i.e, bi partisan support.

Why do you want tyranny of the majority?
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Old 09-26-2012, 03:39 PM   #29
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Heck, Harry can't even pass a budget, and he only needs 51 votes for that. Wait, he doen't want to pass a budget. Budget??? what's that?
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Old 09-26-2012, 03:48 PM   #30
Garcia Bronco Garcia Bronco is offline
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Join Date: Sep 2000
Location: Denver
Casino cash: $7960
Quote:
Originally Posted by Aries Walker View Post
Ah, filibusters. Yet another reason why Aaron Burr is the worst American that ever lived.
thought the same thing myself when I read this OP.

He tried to steal the Presidency from Jefferson leading to a Constitutional Amendment
He killed Alexander Hamilton by cheating
He tried to steal the LA Purchase and raise an Army to take over the US.
And now this...what a cockbag.

This is just the shit I know about off the top of my head.
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