I have an article up at the Prospect about the filibuster and its defenders. (Spoiler: the filibuster is awful.) This time, I wanted to note in particular that it doesn’t matter what the framers would have thought about it:
One response to using the framers to defend the filibuster is that there’s no particular reason to believe that they thought that supermajority requirements for basic Senate votes were a desirable protection for minority rights. The constitutionalism of the framers was a mixture of majority rule and checks on majority power; no support for any particular check can be inferred from this. The fact that they didn’t include a supermajority requirement on Senate legislative votes even though they did for other things (such as veto overrides and constitutional amendments) tends to suggest that they thought that a routine supermajority requirement wasn’t a desirable check.
But that’s not the argument I’m inclined to make. Rather, my response would be even if the framers thought the filibuster was a great idea, so what? This kind of vulgar originalism is just as bad an idea when used to defend the filibuster as it is when people use it to assert that the filibuster is unconstitutional. We’re bound by institutional choices the framers made and entrenched in the Constitution (unless it is amended.) But otherwise, there’s no reason not to benefit from the centuries of experience that the American public had acquired since 1787. Even if the framers would have thought that the filibuster was the greatest thing ever, we would have no reason to defer to their wisdom any more than we’re obligated to protect slavery or deny women the vote.
The filibuster has to be defended on its own merits, not on the coattails of the founding fathers. Which is a problem because it can’t be. The American legislative process is already unusually cumbersome (“tyranny of the majority” isn’t a major fear; the increasing inability of majorities to govern at all is.) So any further countermajoritarian requirement beyond what the Constitution requires faces a steep burden of proof. The filibuster doesn’t even come close to meeting this burden.