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The Polish Dietization of America

Tom Geoghegan's op-ed arguing that the filibuster is unconstitutional isn't very convincing. I'm also, as a general rule, opposed to declaring all manner of things that people don't like "unconstitutional." But as an argument that the filibuster grossly violates the intent of the Founders, Geoghegan's case is unassailable. Particularly interesting is his reference to the Federalist No. 75, in which Alexander Hamilton examined the argument for subjecting treaties to a two-thirds vote:

It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. ... The history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.

Do people really want America to be like the Polish Diet of yesteryear?

By Ezra Klein  |  January 11, 2010; 3:01 PM ET
Categories:  Senate  
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Comments

I would actually argue the REAL root of our current predicament is the super-majoritarian requirement for amending the constitution itself. We could long ago have modified the legislative process, for instance, to clip the wings of the Senate (providing, say, for merely a "delaying" power WRT legislation as opposed to full veto power, as is the case with other legislatures).

I know the mere suggestion of making it easier to amend the constitution makes lots of Americans pass out in shock, but bad or ill-advised amendments would be easier to repeal, too...

I'm fan of continuity. Not such a fan of calcification. IMHO the balance in America is tilted toward the latter.

Posted by: Jasper99 | January 11, 2010 3:18 PM | Report abuse

Yes, both the Federalist essays and the Records of the Continental Convention are helpful in understanding the intent. In Federalist #64, the text beginning "Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?" continues themes found in #62, #63, and #85.

The presentation at http://thomas.loc.gov/home/histdox/fedpapers.html gives the headings for the various essays and makes useful reading.

Posted by: rmgregory | January 11, 2010 3:23 PM | Report abuse

I'm no constitutional scholar, but I'm not sure why you think his arguments aren't convincing. In a lot of instances, "at odds with the founders' intent" has been deemed sufficient to declare a law unconstitutional, even if there is no explicit constitutional bar. Beyond that, the filibuster seems starkly in conflict with several principles implied in the Constitution, as Geoghegan discusses. The reasoning he uses is pretty standard, as far as constitutional interpretation goes.

If someone were to challenge the filibuster in court, they would face two obvious obstacles. The first is successfully arguing that the court has the authority to address this political question, the second is successfully arguing that the filibuster is unconstitutional. In my opinion, the first obstacle is actually much harder to clear. Although the court has suggested before that it may have the authority to intervene if the Congress totally abandons the role envisioned for it in the Constitution, the severity of the problem caused by the filibuster can really only be highlighted with political science. And the court has a bad habit of mangling any remotely numerical argument that comes before it.

Posted by: WHSTCL | January 11, 2010 3:26 PM | Report abuse

In the Polish Diet (or Sejm), any single member could nullify all pieces of legislation passed that session by proclaiming, "Nie pozwalam!", Polish for "I do not allow!". This was known as the "liberum veto". We're not there yet, but we're getting close.

Posted by: leszekp | January 11, 2010 3:27 PM | Report abuse

There's got to be a joke in there somewhere, something that plays on legislation as sausage-making, while noting that the Polish Diet consists primarily of kielbasa...

Posted by: tps12 | January 11, 2010 3:29 PM | Report abuse

Kind of weak to say Geoghegan's argument is unconvincing without saying why.

I find it pretty compelling to point out that a simple-majority rule for most matters is clearly implied by the Constitution. (The rule is more clearly implied than lots of other rules the Supreme Court has found in the Constitution.) It follows that one senate-session cannot tie the hands of a later senate-session by purporting to impose an extra-constitutional super-majority requirement. But that's what the rules -- which are not re-adopted each session -- purport to do. The senate in session today is purportedly bound by a cloture rule adopted by an entirely different senate in 1917 (and last modified in 1975, also by an entirely different senate).

There's a fair argument that *this* senate-session can make rules applicable only to itself that impose a super-majority requirement. But that's not what has happened, and it would not happen.

Posted by: johnjohn4 | January 11, 2010 4:16 PM | Report abuse

You should note that there are some rights in the constitution that are not supposed to be enforced by the Court but rather the people, on the grounds that it is a "political question." The obvious example is the Republican Form of Government Clause, which basically promises--as the name implies--a right to a republican form of government. There have been suits arguing that this or that act of a government entity violated this clause, but the Supreme Court would dismiss these cases as involving a "political question" that it could not resolve, but rather should be resolved by the people.

The practical upshot of this is that, even if you can't make an argument *to a a court* that something--such as the filibuster--is unconstitutional, its perfectly fine to make an argument *to one's fellow citizens* that they should oppose something on the grounds that it's unconstitutional.

Posted by: blah1 | January 11, 2010 4:18 PM | Report abuse

Hamilton says, in the part you (and Geoghegan!) leave out, that the requirement he's talking about will "amount in practice to a necessity of unanimity". It is unanimity, not a two-third majority, that he say leads to "impotence, perplexity, and disorder", as the example of the Polish Diet bears out.

Posted by: adonsig | January 11, 2010 4:34 PM | Report abuse

The Senate has functioned perfectly fine with the filibuster in place across our history. Pelosi and Reid's inability to get the health bill passed has more to do with Obama's failure to articulate any principles for what he wanted from health care reform, as well as the fact that the bill's becoming less popular every day.

Posted by: tomtildrum | January 11, 2010 5:01 PM | Report abuse

The reason this is not unconstitutional is that the constitution specifically says that the Senate is allowed to select its own rules. It is probably true that the Senate can eliminate the filibuster with a bare majority, but there probably aren't a majority of Senators who will be in favor of this.

Removing the filibuster with a rules change* by majority vote is what the "Nuclear Option", that the Republicans were pushing several years ago, was all about. The problem that the Republicans had was that there weren't enough Senators in favor of limiting the filibuster, even though they had a majority.

All we need to do to get rid of the filibuster is convince a majority of Senators to get rid of it. Some might argue that the minority party would shut down the Senate in retaliation, but since the Republicans are doing everything that they can to shut down the Senate anyway, I'm not sure the threat has as much merit as it once did.

*Technically, they were using a point of order to create a binding precedent rather than a rules change.

Posted by: zosima | January 11, 2010 6:45 PM | Report abuse

To argue the other side of the point I just made, if we imagine a Senate rule that would require all bills to pass a consensus vote(100%) before a bill could be passed via majority vote. We would certainly consider it unconstitutional. I'm not sure why our intuition should be any different if the threshold is 60% and the rule may be enacted optionally at the whims of the minority. It still sets a 60% threshold for passage.

If the Senate can subvert the restrictions of the constitution with its rules, then how can we call it constitutional?

I really think this should go to the Supreme Court.

But the biggest problem is that most Senators don't want to get rid of the filibuster because it maximizes their personal power. It is purely for selfish reasons that they are doing a crappy job running our country.

Posted by: zosima | January 11, 2010 7:10 PM | Report abuse

What is it the right says about strict constructionism and the need to revere our founding fathers?

Posted by: punchaxverulam | January 12, 2010 7:42 AM | Report abuse

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