Is the filibuster unconstitutional?

[LiberalFighter]

Washington Post -- Ezra Klein (Read More)

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.

In the end, the Constitution proscribed 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.”

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.”

The filibuster should go.

[struggle4progress]

1. Pfft! Constitution, Article I, Section 5, Paragraph 2:

Each House may determine the rules of its proceedings ...

[longship]

2. I agree, that seems pretty clear. Phfft!

[earthside]

3. That point is addressed in the article ...

... 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.”

Now, whether or not this Supreme Court would even take the case is problematic.

However, I'll guarantee you this: if the Repuglicans take control of the the Senate next year, the filibuster will be gone.

And that is what is so pathetic about Harry Reid's 'leadership' of the Senate -- his timidity and deference has put the progressive agenda and Pres. Obama's proposals up for "super majority" vote defeats, while we all know that the Repuglicans will suffer from no such qualms when (if) they get 51 Seantors.

[struggle4progress]

4. In US v Ballin, the question was whether "the act of May 9, 1890, legally passed,"

Last edited Tue May 15, 2012, 12:25 PM - Edit history (1)

the Speaker of the House of Representatives having determined (in said matter) that members present and refusing to vote, (74 in number,) together with those recorded as voting, (138 in number,) showed a total of 212 members present, constituting a quorum present to do business; and that the yeas being 138, and the nays none, the said bill was passed

You may read the opinion here:

The question, therefore, is as to the validity of this rule, and not what methods the speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. 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 there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=144&invol=1

The learned Justices agreed in that case with the Speaker: the act was legally passed

[treestar]

5. Certainly those rules could not themselves violate the Constitution

Suppose they made a rule requiring obeisance to the Flying Spaghetti Monster? There must be some limit on that. The Constitution meant rules, not changing the Constitution itself. The enumerating of exceptions to majority rules shows us that is only meant for major things, not minor things like when to stop talking.

[struggle4progress]

7. The High Court will be exceedingly reluctant to intervene in the question

of how and when a chamber of Congress brings matters to a vote

[sofa king]

12. Thank you!

Ending a filibuster is a procedural vote, and the Senate may determine its own procedure.

Or for those of you who like weird metaphors, the filibuster and its rules are an entirely enclosed ant-farm buried inside of a giant ant-hill. The larger ant-hill (the Constitutional question) has no effect on the ant-farm inside (the filibuster).

Because the Constitution is an ant-farmer, or something.

[musiclawyer]

6. I don't want an academic discussion;I want a discussion about Harry Reid

and what he is going to do. I think we will keep the Senate. If so, Reid MUST change the rule on day one to make sure you only need 51 to get things done. If he does not, he it a tool and a fool of epic proportions.

Because if the GOP takes the Senate, rest assured they will pass whatever they want and will do whatever it takes.

POTUS giving the banks a bailout with no strings attached was the original sin. Reid not going nuclear in January 2011 was original sin 2.0 because by then he knew what he was up against. Passing things only to die in a GOP house would have been invaluable evidence that the GOP is unfit to govern an animal shelter.

[struggle4progress]

8. Though there be a first day of the House biennially, as the House

could in principle completely change membership every other year, the Senate cannot lose more than a third of its membership in any Federal electoral cycle, and so is regarded as a continuing body. Thus, there is no biennial first day of the Senate. This continuing nature of the Senate is clear in Senate rule V, which contemplates suspension and amendment of the Senate rules:

1. No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.

2. The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

[WillyT]

9. K & R !!!

[hrmjustin]

10. Listen if the gop wins the elections this fall...

...we will need that filibuster. Be careful what you wish for.

[Cosmocat]

11. Which explains the general acceptance of doing away with the filibuster ...

when the Ds has the 58 to 42 margin, it was out of order to consider it ...

But, as the balance of the senate is very much in play, and the potential for the Rs to have a SLIGHT margin or have it remain at slight D margin, sure, you can talk about doing away with it ...