Is the filibuster unconstitutional? | Opinion | – Murray Ledger and Times

Posted: September 10, 2021 at 5:54 am

In the U.S. Senate, a filibuster is a tactic employed by opponents of a proposed law to prevent the measures final passage. The most common practice is extending debate to stall a vote.

Emmet Bondurant, a lawyer for antitrust litigation, thinks the filibuster is unconstitutional.

In a 2011 article in the Harvard Law Schools Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines. Here is some history:

In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated. One change it made was to delete the previous question motion. That was the motion senators used to end debate on whatever they were talking about. Burr recommended axing it because it was hardly ever used.

Senators were gentlemen and knew when to stop talking. That was then (LOL).

That was the moment the Senate created the filibuster. It would be three more decades before the first filibuster was used 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 occurrence. Between 1840 and 1900, there were 16 filibusters. Between 2009 and 2010, there were more than 130. But thats changed. Today, 60 votes are required for just about everything.

At the core of Bondurants argument is a very simple claim: This isnt what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. The Framers rejected that idea.

The Framers, famously wary of tyranny of the majority, devised a system of governance to protect minority rights and promote deliberation without a filibuster. The Federalist Papers outline how checks and balances, federalism, and other structural mechanisms prevent abuses of power, suppression of minority interests, and reckless government action. The Framers clearly feared tyrannical majorities and an overly powerful legislature. However, even they deemed a supermajority cloture requirement unnecessary, undermining the argument that the filibuster enhances the Senates intended function.

In Federalist 22, Alexander Hamilton attacked 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 asserted, 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.

The Constitution prescribes only six instances in which Congress would require more than a majority vote:

1) Impeaching the president

3) Overriding a presidential veto of a bill or order

4) Ratifying treaties and amending the Constitution

5) Established rule of construction

6) To declare a president disabled to carry out duties

Also, the majority vote played into another principle: the compromise over proper representation.

Today, with the filibuster, 21 of the 50 states, representing a fraction of the population, can assemble the 41 votes to stop a majority in the Senate. The supermajority vote requirement, Bondurant argues, upsets the Constitutions Great Compromise carefully crafted balance between the large states and the small states.

Theres also a precedent for the Supreme Court to review congressional rules.

In 1892, in United States v. Ballin, the Supreme 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.

Today the filibuster is being used to massage voter suppression, disenfranchisement and election subversion.

We are now faced with the reality that again senators representing a small percentage of Americans can hold hostage the will of the people.

Yes, the filibuster is unconstitutional, Mr. Manchin (D-W.V.) and Ms. Sinema (D-Ariz.).

Editors Note: Opinions expressed do not necessarily reflect the editorial opinion of the Murray Ledger & Times.

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Is the filibuster unconstitutional? | Opinion | - Murray Ledger and Times

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