Monday, January 11, 2010
I'm trying to steer clear of politics, but...
I found this excellent article in the NY Times that says that filibusters in the Senate are unconstitutional. I have to admit this article is extremely thought-provoking. But I wonder if it would have been written five years ago? Anyway, check it out... at this site.
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3 comments:
The reason Congress can set its own rules and judge whether something fulls within/without the rules is the Separation of Powers. The Supreme Court's role in passing on constitutional questions extends to laws duly passed, not the method of passing them or getting them to the floor.
Cheers.
Being a lawyer, I would have to defer to your knowledge in this case, Randall. However, I would think the whole point of having the Supreme Court decide matters of constitutionality is precisely what this author's case is about.
According to this story, the Senate has created a de facto requirement for a super majority on all bills set before it. This requirement is unconstitutional and, in fact, flies right in the face of several constitutional provisions. Therefore, you can't pass a law for the Supreme Court to decide upon without first bypassing the constitution to get it passed.
The Supreme Court has weighed in before on the Constitutionality of questions outside its normal jurisdiction (namely in the 2000 Election, for one). I would think that this is exactly the sort of thing that the Supreme Court was designed to do.
I'm not advocating that the Supreme Court get involved, mind you. I think that would create one heck of a mess. And really, I'm not entirely sure that there needs to be a change to the current system. But I do find the arguments fascinating anyway. I love a good Constitutional question to mull upon from time to time.
I read the op-ed and nothing the author points to is, in fact, contrary to what I suggested. Article I, Sec. 5 mandates that each house set its own rules. The fact that super-majorities are mandated in specific situations, does not preclude those in others. Further, although it is a petty distinction, closing debate, does not enact a law. If the cloture rules are unconstitutional, then so are rules that allow a single committee, i.e. judiciary, to prevent a full senate vote on a presidential appointee.
Second, one notes in the ob-ed a subtle (or not so subtle) shift in constitutional jurisprudence. That is, the traditional view is that unless something is mandated in the constitution or expressly forbidden, then it is allowed, reserved to the branch of government responsible for that aspect of governance or to the States. The author's position seems to be that unless the constitution expressly allows something, it is therefor forbidden, a particularly dangerous notion in our republic, methinks.
More problematic (and unconstitutional for reasons hereafter expressed) is the requirement for a super-majority in order to repeal a bill, as is in the current senate version of the health care debacle. The reason that is a problem is it seeks to limit a future Congress' actions outside of the Constitution. It would be the same thing as Congress attempting by law to limit a future President's powers under the constitution.
Cheers.
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