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Thu, 25 Apr 2013

Fire Dog Lake is angry about the recent Senate vote that killed the Toomey-Manchin background check amendment to the latest gun control bill. However, the anger is not directed at the Democrats that voted against the amendment, but at those who voted for it. What gives?

If the 51 Democrats who voted for the amendment really wanted to see it passed in the Senate, they could have passed it. They could have voted to eliminate the filibuster and than pass the bill with a simple majority vote like the Constitution specifies.

Wait, what? Where, exactly, does the Constitution say that bills must pass by simple majority vote? There is nothing in the Constitution about what percentage of either house's vote is required to pass a bill. Article I says that a majority of each house constitutes a quorum to do business, but that just means being able to debate bills or hold votes; it's not the same as the standard for passing a bill. It also says each house can determine its own rules of procedure, of which the filibuster rule is an example; so, far from being against the Constitution, the filibuster looks like an example of the Constitution being used as it was written.

Of course, nothing in constitutional law is ever that simple; if it were, I would never have been able to get so many posts out of the subject. Nearly a year ago, Ezra Klein blogged about a suit that was submitted to the Supreme Court arguing that the filibuster rule should be reviewed for possible unconstitutionality. The argument was based on three main points. One is simply that, although the Constitution says that each house of Congress determines its own rules of procedure, those rules cannot violate other Constitutional provisions, and the Supreme Court has in the past reviewed procedural rules for constitutionality. The second, more interesting point is that there is apparently an "established rule of construction" called "expressio unius est exclusio alterius", which I won't bother translating literally from the Latin, but which basically means that, since the Constitution does explicitly state particular exceptions to majority rule (there are six in total--for example, the two-thirds majority in each house that is required to override a presendential veto), there is an implication that there are no other exceptions, since if there were, it would have stated them. (A contrast is drawn here with the Bill of Rights, which does explicitly say that the rights enumerated in the Constitution are not a complete list.) The third point is that the filibuster rule isn't what the Founders intended; for example, by decreasing the number of Senators required to vote down a bill, it upsets the "carefully crafted balance" that the Founders set up between the large states and the small states.

The only thing these arguments prove to me is that constitutional lawyers can do sophistry about as well as Supreme Court justices can. This will come as no surprise if you have read the previous posts I linked to above, since one of the main points I argued in those posts is that if the standard were what the Founders intended, most of what passes for constitutional law would be out the window. But even if we just consider the merits of this particular case, the arguments don't hold up. For example, the idea that if the Bill of Rights didn't include the Ninth Amendment, there wouldn't be any other rights than those explicitly given, doesn't hold water even with most constitutional lawyers; many of them have argued that the Ninth Amendment is not really necessary, since what it says is already implied by the rest of the Constitution and the Bill of Rights.

As for the "carefully crafted balance" between large and small states, if that's the objective, why should a 51 percent majority be the default? There's no reason why that particular number must always magically be the "right" balance. The brief for the lawsuit notes that at the time of the founding, the smallest seven of the 13 states, representing 27 percent of the population, could command a majority in the Senate; but now, with the filibuster rule, the smallest 21 of the 50 states, representing only 11 percent of the population, can kill a bill. Clearly this is a major change in the balance of power, but what makes the original balance any more "right" than the current one--or than some point in between? The brief makes no argument for what the right balance should be; it just assumes that a simple majority must be right, because, well, that's what "democracy" means, right? (We'll come back to this last point.)

Of course we know what the debate about filibuster reform is really about. As I said in my post on the fiscal cliff, we have long since stopped thinking of the Constitution as a set of underlying rules for a stable society, the preservation of which is more important than the action we take on any particular issue. We no longer see our government as a tool for arriving at consensus solutions to difficult political problems; we now think of it as a vehicle for imposing our particular beliefs on everybody else. And of course we get frustrated when the rules seem to obstruct our efforts to do that, and we blame it on the rules, instead of on ourselves. As the National Review recently noted, not so very long ago it was the Republicans who were complaining about the filibuster rule, and the Democrats who were saying how important it was to keep it as an aid to wise and mature government. But that same article argues that the Republicans should agree to end the filibuster rule, because, even though that will make it easier in the short run for the Democrats to impose their policies, it will also make it easier in the longer run for the Republicans to impose theirs.

To me this is a classic case of "be careful what you wish for". The problem is not that it's too hard to pass laws; it's that it's too easy. It's too easy for Congress to change the rules by which our society operates, and as a result the rules are changed so often that nobody can keep up. Or, rather, no ordinary citizen can keep up, which means that laws are written by lobbyists and special interests, and are voted on by legislators that for the most part have not even read them. Is that what the Founders intended?

I said we would come back to that word, "democracy". That's another word that does not appear in the Constitution. There is, indeed, only one reference to any form of government in the entire document; Article IV, Section 4, says: "The United States shall guarantee to every State in this Union a Republican Form of Government". The original Constitution had Senators elected by State legislatures; not until the 17th Amendment, in 1913, were Senators elected by popular vote in their States. Even the House of Representatives, which has always been elected by the people directly, has never had each representative representing exactly the same number of people. Indeed, the latest redistricting has the largest district containing almost twice the number of people as the smallest. So even if we do have a democracy in the United States, it is an imperfect one.

The Founders, if they knew anything, knew that any government must be imperfect. Their goal was not to find the perfect set of rules, or even to find the perfect framework for coming up with a set of rules. Their goal was simply to come up with something that worked better than the Articles of Confederation, and to include ways of amending it as time went on. If simple majority rule was that important to them, they could have said it explicitly; and for that matter, if it's really that important to us, we could amend the Constitution now to say that all votes in Congress are simple majority votes unless specified otherwise.

But the Founders could not protect us from ourselves. No system of government, no set of rules, can protect us if our response when the rules get in our way is to blame the rules. Abolishing the filibuster rule won't fix our government; if anything, it will make it easier to mess things up by making changes without a clear understanding of the consequences.

Posted at 18:12   |   Category: opinions   |   Tags: politics   |   Permalink
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