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View Diary: Filibuster challenged in federal court (80 comments)

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  •  Actually is a sound legal argument (3+ / 0-)
    Rule XXII of the Standing Rules of the United States Senate is unconstitutional. It “reverse[s]” the democratic principle of majority rule which isa “fundamental principle of free government” on which the Constitution is based. The Federalist, No. 58, at 397 (James Madison) (Cooke ed. 1961).
    I didn't really take this thing seriously until I read through the complaint (freely downloadable version).

    Looks to me like there's a legitimate legal argument there for overthrowing the filibuster. The gist of it is that the Senate lacks the power to impose a supermajority except where it is prescribed by the Constitution. Given that the power of the Federal government itself is limited to those ennumerated in the Constituion, it stands to reason that a creature of the Constitution, like the Senate, would also be limited in the same way.

    This isn't Republican Rome where the "upper house" was established by tradition and had its own independent existence. The U.S. Senate has no existence apart from its establishment under our written Constitution. As others have so aptly pointed out in previous comments,  it would clearly be unconstitutional for the U.S. Senate to enact a rule that reduced the vote of members who were in a racial minority to 3/5 that of a white Senator. Is a rule that allows the arbitrary imposition of a supermajority requirement at the whim of a minority materially different?

    •  I'm afraid you're incorrect. (0+ / 0-)

      The Constitution explicitly assigns each House of Congress the right to formulate its own procedures:

      Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.
      It's cut-and-dried, as far as I'm concerned, particularly since the Senate procedural rules permitting filibusters received the endorsement of a majority of Senators at the start of the 112th Congress, as per standing procedure. Sen. Reid is doing the right thing by forging a majority for filibuster reform at the start of the 113th Congress; these clowns are simply grandstanding.

      And the courts are not a tool of political theatre.

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