Skip to comments.Is the filibuster unconstitutional?
Posted on 05/15/2012 11:49:08 AM PDT by Theoria
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 cant afford to lose a lawsuit. He was its 2010 Lawyer of the Year for Antitrust and Bet-the-Company Litigation. But now, hes 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, hes suing to have the Supreme Court abolish it.
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. 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.
(Excerpt) Read more at washingtonpost.com ...
The constitution does not, nor would it, detail every permitted action. This is like saying that oral arguments before the Supreme Court are not constitutional, as it’s not written in there.
My bad ...
“Is the filibuster unconstitutional?”
And BTW...the fact that Common Cause opposes them strengthens my support of them.
These questions are never asked when republicans hold majorities.
Generally speaking, anything that makes it harder for the government to accomplish anything should be considered a positive good.
At least Mr. Klein mentioned the Constitution gives each house of Congress the set its own rules: determine the Rules of its Proceedings.
If the liberals want to end the filibuster than all Harry Reid needed to do was to get rid of the rule when the new Congress was seated but he didn’t. For example, House Speaker Reid in 1890 got rid of the rule allowing a minority to have an effective veto over legislation by not “attending” House proceedings and denying the House a quorum.
Yep. They need to actually do it. The threat is not enough. The same is when a party says they don’t have the votes. Fine, but still vote. Put your vote in the records of infamy.
you are incorrect- when there is a rat in the WH who wants to be king, ruler and demands to get everything he wants, then the filibuster is unconstitutional...
when there’s a Republican president, the filibuster is considered necessary patriotic dissent...
Interesting that this should become an issue just now. The Left anticipating losing the Senate in November?
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
As the Senate has determined that its rules require 60 votes to gain “cloture” - then the making and enforcing of such a rule is Constitutional.
But amazing that when Democrats hold filibuster power in a Republican dominated Senate - the filibuster rule is enshrined in U.S. law and a necessary check on majority rule; but when Republicans hold filibuster power in a Democrat dominated Senate - it is somehow Unconstitutional 0r at least “extra” Constitutional.
One might think they had bias or something!
The House and Senate may set their rules of operation as a co equal branch with the Supreme Court.
A SCOTUS attempt to review those rules would be unconstitutional and cause for impeachment.
What are the Senate (and the House, for matter) rules for a voting quorum? The reason I ask is, Democrats in both Indiana and Wisconsin—within the past year—have walked out of legislatures to prevent the business of government from moving forward. Should that action too, be considered un-Constitutional?
“I have a huge problem with a legislator being able to simply *declare* that he/she will filibuster and it’s deeded to have happened.The legislator involved should be required to TALK...non-stop...in order for it to be valid.Like in Mr Smith Goes To Washington.”
I don’t really understand this filibuster purism. It’s gotta be some kind of nostalgia, along the lines of “in the old days we had to walk a mile to school uphill both ways in the dark during snowstorms.” Them deeming a filibuster having taken place without one actually taking place is a way to exploit the rules to get around a vote, just as old-fashioned filibustering was a means of exploiting the rules. There is nothing about the inherent nature of talking for hours on end that makes it a more legitimate means of vote avoidance.
Oh here we go...now Ezra has been handed Harry Reid’s talking point. These rats see the writing on the wall and it’s curtains for tham in November. So their only path is to try and neuter the effects of being in the minority. Fuggetaboutit...we remember, the “we won” President and Pelosi/Reid years. With disdain. It is going to take years to undo their damage.
“The constitution does not, nor would it, detail every permitted action. This is like saying that oral arguments before the Supreme Court are not constitutional, as its not written in there.”
Exactly. The Framers may have intended for laws to pass by simple majority, but who’s to say when a majority can properly be counted? What if a ragtag group of senators gather on the capital steps and count hands? Does constitute a proper vote? No, because Senate rules forbid it. Votes have to be counted in a certain way under certain conditions.
The rest of us were wrong, he said. If there were anything that ever needed changing in this body, its the filibuster rule, because its been abused, abused and abused.
That's pitiful. His tune will change come November when the Senate changes hands by a small majority to the Republicans. Democrats perfected the fillibuster and make it a near constant when Bush tried to appoint SC Justices.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.