The Filibuster: An Unconstitutional Contrivance

The Filibuster: An Unconstitutional Contrivance

On January 24^th, the US Senate voted overwhelmingly in support of two measures to modify the filibuster process.  While these measures are designed to make it more difficult to use the filibuster to block measures from coming to a floor vote, by most accounts they tinker around the edges and do not amount to the fundamental overhaul of the process which had been discussed.  Notable among the few opponents of the measures were Sens. Mike Lee, R-Utah; Rand Paul, R-Ky.; and Marco Rubio, R-Fla.  All enjoy tea party backing.  Their decision to oppose filibuster reform in the manner put forward calls into question the veracity of their supposed beliefs around original intent and constitutional purity which are also at the core of the stated beliefs of their tea party backers.    

Most students of political science, like me, were required at some point to read James Madison’s notes from the constitutional convention.  His copious notes were written from his memory, each night after the day’s debate had concluded, and only released to the public upon the death of the last participant in the convention.  These priceless gems from history offer a unique glimpse into the debates of our founding fathers which shaped this nation.  Two interrelated subjects dominated the debate: how to represent state interests vs. popular interests and what means of determining the results of a vote should be used.  On this latter point, many founders spoke of whether a simple majority should be required, whether it should differ by chamber (once the Great Compromise was reached to create an upper and lower chamber), whether some votes should require a super majority and others not etc.  We can see all of this in the constitution they created, which in fact requires a simple majority for passage of most legislation but a super majority for appointments and constitutional amendments.  What is the point of this stroll down memory lane? 

It is this: the voting process we have today was the result of a highly deliberative process which considered all permutations and was decided upon at our nation’s inception by our revered founders.  Since that time, each chamber has taken liberties with its procedures; liberties afforded them by the constitutional power to create rules for their operations.  However, what happens when use of the authority to create rules results in procedures which fundamentally alter what was the clear intention of the founders as stated in the constitution?  This is not a mere hypothetical to be discussed by academics and constitutional theorists but rather the actual state under which our nation has long labored.  It is true; the filibuster does not always preclude a simple majority vote from occurring in the Senate.  However, it often does, and the prevalence of its use has grown dramatically in recent years, contributing to the gridlock which has plagued this nation.  This takes us to the tea party opponents of these restorative reforms. 

These Senators have often loudly proclaimed that any authority of the federal government not clearly granted to it in the constitution to be an unconstitutional overreach.  For Sen. Paul, this has ranged from weighty issues around the Federal Reserve and Civil Rights Act to arguably less weighty ones such as new energy efficiency standards for light bulbs.  These views stem from their professed belief in original intent and strict constructionism with regard to our constitution.  It is peculiar, then, that these men would vote in favor of continued use of a practice which does more than simply go beyond what the constitution allows and in fact contradicts one of its more explicitly clear elements.  It leaves me to wonder how they can reconcile their vote with the supposed purity of their beliefs on the constitution.  I believe the facts are so clear that this amounts to an ideological litmus test both for the tea party and the candidates who claim to share the party’s views.  Opposition to the reforms must cast doubt on whether original intent and constitutional purity are in fact truly held principles or merely politically advantageous talking points they trot out to support what they like and oppose what they don’t. 

NRA's view on Obama's absolutism comment

NRA CEO Wayne LaPierre had characteristically strong words in response to President Obama's Inaugural address in which he said that "we cannot mistake absolutism for principle".  He was referring to the entrenched gun advocacy lobby, in particular, to the NRA.  Mr. LaPierre replied that absolutism is not, as the President sought to characterize it, extremism.  He went on to say that “Absolutes do exist. Words do have specific meaning in language and in law. It’s the basis of all civilization. Without those absolutes, without those protections, democracy decays into nothing more than two wolves and one lamb voting on, well, who to eat for lunch.” Of course, the President doesn't disagree that absolutes exist.  What he was decrying was the fact that the NRA seems to view gun rights, as enshrined in the 2nd amendment, as somehow uniquely inviolable among all the rights we possess.  He was speaking against the NRA view that gun control, by its very nature, violates the 2nd amendment.  In reality, this view on rights infringement is an outlier among other rights groups.

The reality, if we choose to acknowledge it, is that all our rights can be abridged by law.  This includes what is perhaps the most sacred and universal of all human rights: the right to life.  States in this country can choose to take life in the form of capital punishment.  Similarly, the first amendment, often considered the lifeblood of a vibrant democracy, can also be curtailed.  The famous example is that you cannot yell fire in a crowded theater.  We have libel laws which preclude certain falsehoods from being written.   We also have limitations on worship.  A congregation is free to worship as it chooses, but they couldn't simply show up on a street and shut it down on a sunday morning (or for that matter perform human sacrifices).  We have a right to protection in our homes and of our possessions, yet many abilities to infringe on these rights are well established in law, through warrants, probable cause, exigent circumstances etc.  The point of all this is the groups that support these rights don't deny, as a basic premise, that the rights can, under certain circumstances, be infringed upon.  The argument is about the appropriate degree of infringement.  This is about balancing rights vs. some competing public interest.  In many ways, this never ending debate is at the center of democratic governance.  The issue is that the NRA seems to think the 2nd amendment is unique among its Bill of Rights peers in that any infringement is in fact not mere infringement but in fact a fundamental, irrevocable weakening.

I would ask those who hold this view to consult their conscience, and their reason.  To ask yourselves, if you believe any infringement on the 2nd amendment is inappropriate but acknowledge the validity of infringement upon other rights, why you think this is acceptable?  What about the 2nd amendment elevates it above other rights we all profess to hold dear?  The is not a minor issue.  Democratic governance demands compromise to allow for achievement for the general well being.  If compromise is viewed as anathema by one side, the general well being suffers.  This is the absolutism the President spoke against in his inaugural address.  I for one hope his words resonate more than those of Mr. LaPierre.