The Constitution and the filibuster
Over at the Atlantic, David Repass argues that the silent filibuster -- which is to say, the conversion of the Senate into a body that requires supermajority votes to conduct daily business -- is unconstitutional. You can also read law professors Josh Chafetz and Michael Gerhardt debate the same point here.
I'd find this convenient if it were true, but since there's no "thou shalt not filibuster" written into the Constitution, I'm not going to rely on an esoteric reading of the document to make it true. In general, I think that's a bad way to treat the Constitution, and except in rare cases regarding fundamental rights where the document is clear, the bias should be against arguments that try to achieve through constitutional intervention what the speaker can't achieve through legislative action.
My position on this has firmed a bit in recent days as I've gotten a couple of hundred e-mails about a Drudge-popularized misinterpretation of some comments I made on the Constitution. The common theme in these e-mails, aside from my general worthlessness and Stalinist leanings, has been an argument that the Constitution is very clear that the policies the writer prefers are constitutional and the policies they don't prefer are unconstitutional and only an idiot would believe otherwise. There've been enough of them to convince me that the perception that the Obama administration isn't just liberal, but is unconstitutional in a way that's actively dangerous, has more traction on the right than I'd realized.
I suspect that this sort of instrumentalist interpretation of the Constitution is fairly common among minority parties who have to figure out ways of being effective without controlling Congress or the White House, but that doesn't mean it's healthy: Compared to saying something is "wrong" or "bad policy," saying something is "unconstitutional" gets a lot closer to saying that it's "un-American." And that's basically how I feel about the argument over the filibuster: The Constitution's commentary on this question is indirect enough that I don't think there's a really a "right" answer, and so I am inclined to just argue the point on the merits rather than appealing to a higher authority.
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