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Tuesday, December 11, 2012

Your Face Is Incompatible With The Constitution

I woulda let this go, but I saw it again at Orange Satan:

“But the filibuster rule essentially imposes a 60-vote supermajority requirement on every piece of legislation coming to the Senate; while the Senate has the power to make its own rules, it cannot impose rules that are incompatible with the Constitution.”

Uh...they can impose any rules they want, except where specifics are laid down by the Constitution--that's what is compatible with the Contitution.  Just look at the Convention record.

When the Committee of Detail presented its draft of the Constitution in August (on my birthday!), this clause was included: Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.

The only debate on the section was about the necessity of a supermajority to expel, so an amendment was made and it was passed without objection.  The clause stands as such today.

One would presume that if there were concerns about customary parliamentary procedures being "incompatible with the Constitution" there would have been some discussion about limits on them, but there were none.  That is, save for explicit rules such as, say...requiring 2/3 to expel a member.  Otherwise, it's fairly clear that the prerogative as to how legislation passes is up to the chambers.

Control over most internal aspects of legislative operation was wisely left to the legislative branch.  Congress is empowered to override States on how and when Federal elections are held, how to judge election results and member qualifications, and even keep some proceedings secret.  How odd that with all the specificity of so many aspects of operation (e.g., what constitutes a quorum, which was more hotly debated than expulsion), the Framers forgot to include "majority rules" anywhere in the document. 

As I said a while back:

[I]t makes me wonder why, if majoritarian principles were the rule proved by those exceptions, the Framers felt a need to even establish a quorum threshold at all.  Perhaps that's because some things they felt must be beyond the House's and Senate's prerogatives, and anything not particularly laid out were left to their discretion.

Really, if the assumption were that a majority vote is required to make law, then why this debate:

Mr. GHORUM contended that less than a Majority in each House should be made of Quorum, otherwise great delay might happen in business, and great inconvenience from the future increase of numbers.

Mr. MERCER was also for less than a majority. So great a number will put it in the power of a few by seceding at a critical moment to introduce convulsions, and endanger the Governmt. Examples of secession have already happened in some of the States. He was for leaving it to the Legislature to fix the Quorum, as in Great Britain, where the requisite number is small & no inconveniency has been experienced.

Col. MASON. This is a valuable & necessary part of the plan. In this extended Country, embracing so great a diversity of interests, it would be dangerous to the distant parts to allow a small number of members of the two Houses to make laws.

The Framers ultimately decided that a majority's presence is necessary, but obviously anything less than unanimity would mean a minority of the memberhip still carried the day.  So they set the minimum threshold to do business, but did not tie the Legislature's hands in how to determine legislative outcomes.

I will also take issue with the claim that filibusters "essentially" impose a 60-vote threshold.  I suppose that is technically accurate in that the practical result is no business can proceed without cloture, or a unanimous consent agreement that sets the bar at 60, but this parliamentary procedure is really about preserving the right to speak on the floor and continue debate.

For over 50 years, the House of Representatives allowed unlimited debate, until it simply became too unwieldy for the larger body, and debate was limited by rule in 1842.  The Senate didn't start tinkering with such things until 1917, and has incrementally changed the vote threshold required to overcome a filibuster, but the fundamental concept of free, unlimited debate remains.  

Given its long history, I cannot imagine the SCOTUS would, even if it deigned to consider what is really a political question, overturn two centuries of internal Senate operation.  That would require the Roberts court to dismiss a significant amount of precedent.

I once again turn to Stuart v Laird (1803):

[I]t is sufficient to observe, that practice, and acquiescence under it, for a period of several years...affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.

And McIntyre v Ohio Elections Commission (1995):

But there is other indication, of the most weighty sort: the widespread and longstanding traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. 

And what exactly would the remedy be?  Should SCOTUS then decide that Senators must be limited to...an hour of speechifying?  1 or 5 minutes as in the House?  Eliminate the concept of unanimous consent?  

One branch--and one chamber--telling another how to do its job seems fairly incompatible with the Constitution.  There's a constitutional option on the table in January, and no legal action is necessary, only political action by constituents who can tell their Senators that they would like to see some changes to a dysfunctional institution.

ntodd

December 11, 2012 in Constitution, Schmonstitution | Permalink

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