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Posted at 1:52 PM ET, 01/ 4/2011

The Constitution and the filibuster

By Ezra Klein

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.

By Ezra Klein  | January 4, 2011; 1:52 PM ET
Categories:  Legal, Senate  
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Comments

I understand what you're trying to say, but this isn't a case where one has to adapt 18th century norms to modern issues like abortion or rights of minorities.

The idea of majority rule vs. super-majorities was an issue the Founding Fathers wrestled with repeatedly. It was one of the major ideas behind the Constitution as a replacement for the Articles. The constitution specifically enumerates the rare instances when super-majorities are required, and many original writings by the Founders specifically deal with this issue.

In other words, this is a case where one can clearly trace originalist intent with almost no interpretation. In your effort to be even-handed I think you're ceding an important point.

Posted by: CarlosXL | January 4, 2011 2:24 PM | Report abuse

"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."

Probably want to rethink that statement, lest it come back to bite you

Posted by: stantheman21 | January 4, 2011 2:26 PM | Report abuse

Well, just because people dubiously claim some things are unconstitutional doesn't mean that there aren't some things that are actually unconstitutional.

I'm inclined to agree with arguments that the filibuster is unconstitutional. The Constitution is very clear about setting up two largely co-equal chambers of Congress and legislation is clearly expected to pass with majority support except in certain circumscribed cases. The filibuster subverts the model laid out by the Constitution by essentially turning the Senate into a vastly more powerful body than the House, since the requirement to get 3/5 of the Senate to agree to something is generally a much higher hurdle than the House's majority vote.

I'm aware that the Constitution permits each chamber to write their own rules, but it seems logical that those rules themselves can't violate the constitution; would it be constitutional if the Senate made a rule specifying that only male senators could vote on procedural matters, for example?

Now, I'm afraid this is all academic in that I highly doubt the courts would get involved in intracongressional rules debates. But it seems to me to be pretty clearly in contravention of the Constitution's structural intentions.

Posted by: Isa8686 | January 4, 2011 2:29 PM | Report abuse

My only comment (for now) is a suggestion that you not rely on the volume of email you receive to conclude that the "perception that the Obama administration isn't just liberal, but is unconstitutional in a way that's actively dangerous" has more traction than you'd realized. At the very least, be willing to limit this traction to those Beck- and Fox-watching, tea-partying idiots who can, without much effort at all, be mobilized into sending an email.

Posted by: LynnDee227 | January 4, 2011 2:53 PM | Report abuse

LynnDee227, well, he did limit it by saying that it had more traction "on the right" than he realized. I know a few reasonable conservatives, and there are a few of them that comment here, but it's probably reasonable for Ezra to now believe that there are more unreasonable people on the Right than he had believed.

I predict that the statement from this post regarding Ezra's belief on when Constitutional arguments should be used will almost immediately be twisted and used against him by idiots that will refuse to accept some subsequent post where he explains more precisely what he meant there. But idiots will be idiots.

Posted by: MosBen | January 4, 2011 4:54 PM | Report abuse

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MosBen Wrote:
I predict that the statement from this post regarding Ezra's belief on when Constitutional arguments should be used will almost immediately be twisted and used against him by idiots that will refuse to accept some subsequent post where he explains more precisely what he meant there. But idiots will be idiots.
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Well, Ezra's getting paid the big bucks and all, here at the Post and on MSNBC, so he ought to do a better job getting the facts and concepts right the first time instead of uttering jejune inanites. Or maybe THAT'S a definition of idiocy -- getting it REALLY wrong the first time.
______________________________________
LynnDee227 wrote
My only comment (for now) is a suggestion that you not rely on the volume of email you receive to conclude that the "perception that the Obama administration isn't just liberal, but is unconstitutional in a way that's actively dangerous" has more traction than you'd realized. At the very least, be willing to limit this traction to those Beck- and Fox-watching, tea-partying idiots who can, without much effort at all, be mobilized into sending an email.
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As opposed to, say, the idiots who voted for the current President, who brings new meaning to the phrase "narcissistic petulant hypocrite?" Who has this disturbing tendency to shoot his mouth off about, say, the Cambridge police or the cost of diabetic amputations, without having the facts at hand? Or who says one thing ("Gitmo closed in 1 year!") or another thing ("shovel ready projects!") and then turns around and says or does something entirely different? Whose NASA guy thinks his main job is outreach to Muslims? That the tea-partiers loathe this profligate vacuous ex-community organizer is a testimony to their intelligence.

Posted by: karl-keller | January 4, 2011 6:19 PM | Report abuse

Ezra Klein says "I'm not going to rely on an esoteric reading of the document [The Constitution] to make it true." The Founding Fathers did give clear powers to each branch of government and those powers were carefully constructed to assure equal balance between branches and between the two houses of Congress. This is the "true" structure of our government. The de facto acquisition of veto power by a minority in the Senate fundamentally changes this balance by giving the Senate more power than the House, and preempts the President's veto power. This is a basic change in the structure of government, not just an "esoteric reading."

If the endeavors of any collection of individuals are to be successful, there must be written ground rules for conducting business (bylaws or constitutions). When these rules are laid out in a clear, fair and balanced way, the organization can function. There needs to be a "higher authority" to refer to, not just the ad hoc manipulation of rules by a powerful bloc.

Posted by: pols1 | January 4, 2011 6:44 PM | Report abuse

Karl-keller, if you want to engage with a substantive disagreement with Ezra or someone in the comments sections, that's fine. I was referring to the people that take some random sentence uttered or written by Ezra which is phrased in a way that opens it up to interpretation what he meant, even if it's only a tiny bit unclear, and then continually post the ad hominem comments based on the least charitable reading possible, even after Ezra has elaborated on what he meant. These people are worthless fools, whose thoughts and posts are undeserving of consideration.

Like the Constitution, Ezra's comments from the other day could be interpreted a few different ways, even if I thought it was clear from the original clip what he meant. That is simply no longer the case, as he has explained what he meant, and people that post things about how Ezra "can't understand writing over 100 years old!" are idiots, trolls, or both.

I expect that this comment about when Constitutional arguments are proper, which again, is at this point open to interpretation, will be battered around by a new group of idiots at some point in the near future. The dance will be the same, but the idiots will still be idiots.

Posted by: MosBen | January 4, 2011 10:33 PM | Report abuse

MosBen, what Ezra said on MSNBC was inane and jejune and, frankly, that is NOT subject to interpretation. Had he said, for example, "The reading of the Constitution to open the House is really political theater, and while the Constitution is our defining and binding document, it's subject to differing interpretations in some areas because the language can be understood in a number of ways." THAT would be an adult way to articulate the problem, and it's what we should expect from a guy who has the Washington Post podium and an ongoing gig and MSNBC though I'll give Ezra the benefit of the doubt that maybe he's dumbing it down for the cretins who watch MSNBC. And, pal, when it comes to Federal legislation, Constitutional arguments are ALWAYS proper, and we should commend the new House for formalizing the process of addressing such consideration. A lot of my liberal friends are all shaky-panicky over this, but it's healthy. IS it the purview of the federal government to provide health care? Does the government have a right to MANDATE the purchase of health insurance? Does a Federal agency have a RIGHT to promulgate any rule at all without legislative concurrence? THESE ARE BIG CONSTITUTIONAL issues, and it's about time we had some serious arguments about them in the intellectual arena. And only idiots, frankly, think otherwise.

Posted by: karl-keller | January 4, 2011 11:13 PM | Report abuse


Just found that "123 Get Samples" is promoting a wide variety of major brands by providing free samples. You’ll have to fill in your zip code to see if you can qualify to receive them. You can get all samples from one place. I think it is available for most of the zip codes and it worked for me.

Posted by: dawnhansen06 | January 6, 2011 5:22 AM | Report abuse

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