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The Filibuster and the Constitution


To make some comments on the conversation between Drum and Yglesias (and Hertzberg):

  • The case for the constitutionality of the filibuster starts from a compelling basis: Article I specifies that “Each House may determine the rules of its proceedings.” Against this, Kevin makes an argument from structural inference: “The fact that certain types of legislation (treaties, constitutional amendments, veto overrides, etc.) specifically require supermajority votes is evidence that the framers assumed that ordinary legislation should be passed by majority vote.” (Hertzberg makes a similar argument.) I don’t find this terribly convincing. The structure of the Constitution contains any number of non- and counter- majoritarian elements, making inferences of majoritarianism problematic. The fact that the Constitution specifies a counter-majoritarian requirement for certain actions cannot, I think, be considered strong evidence that other countermajoritarian requirements created at the discretion of legislators are impermissible. Moreover, the filibuster doesn’t change the fact that 50%+1 of votes in the Senate is all that’s needed to formally approve legislation. The filibuster is about the procedures for getting to a vote on the merits, and I don’t see how permitting a minority to stop legislation coming for a vote is any more unconstitutional than permitting a minority of senators on a committee from not permitting legislation to come for a vote.
  • I also can’t accept the argument that the filibuster is unconstitutional because the framers expected the Senate to operate on majority votes. First of all, this is the kind of originalist argument — based on the subjective expectations of individual framers — that even most originalists don’t accept. Whatever the framers thought, we’re bound by what they wrote, and the Constitution doesn’t prohibit filibusters explicitly and doesn’t strongly imply their unconstitutionality. But more importantly, I don’t accept the argument because I’m not an originalist. Most members of Congress in the early 19th century almost certainly didn’t think that the commerce clause gave Congress broad powers to regulate the national economy. Certainly, most political elites did not believe at the time of its ratification that the 14th Amendment prohibited segregated schools. And so on. I don’t think that these facts should bind contemporary constitutional interpretation, and I can’t pretend to think they’re any more compelling when they produce an outcome I like.
  • On the other hand, I’m not sure I agree with Matt that political questions doctrine requires that the Supreme Court refuse to hear the question. One certainly can argue that the “validity of enactments” category would make challenges to the filibuster difficult. On the other hand, the Supreme Court has ruled that procedural rules created by Congress are unconstitutional; consider, for example, the invalidation of the legislative veto. So, I think that the Supreme Court could rule that the filibuster was unconstitutional if it chose to do so. I do agree with everyone that it won’t, and I agree with Matt that this appropriate.

The filibuster is a very bad rule. But ending it should be considered a political matter, not a constitutional one.

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