Joe Biden on judicial filibusters
Senator Joe Biden recently gave a very interesting speech on the history of the Senate and the nature of our constitutional government, all while stressing the point that eliminating the judicial filibuster runs contrary to that history. While I disagree with that conclusion, the speech is worth reading for anyone interested in the topic.
At one point late in the speech, however, Biden begins mixing apples and oranges in his historical lesson. The bulk of his speech stresses how the Senate was designed to be representative of the states, as opposed to popular representation in that chamber. He also spends a great deal of time on the Constitutional provision that allows each house of Congress to make its own rules. But then he makes this peculiar argument:
"I suffer from teaching constitutional law for the last 13 years, an advanced class on constitutional law at Widener University, a seminar on Saturday morning, and I teach this clause. I point out the essence of our limited constitutional government, which is so different than every other, is that it is based on the consent of the governed. The governed would never have given consent in 1789 if they knew the outfit they were giving the consent to would be able, by a simple majority, to alter their say in their governance."
As I understand the adoption of the Constitution, the states, in their various ratifying conventions, were voting on whether the document prepared by the Philadelphia convention of 1787 should replace the Articles of Confederation. I am not aware of any great debate in these conventions over the internal mechanisms involving the rules of each house, which is the current discussion involving the use of the filibuster on the president's judicial nominees. The "consent of the governed" was given by the people to the Constitution as a whole, and any alteration in that document must come through the amendment process.
Biden's argument on this point was effectively rebutted in 1995 by Joe Lieberman:
"For too long, we have accepted the premise that the filibuster rule is immune. Yet, Mr. President, there is no constitutional basis for it. We impose it on ourselves. And if I may say so respectfully, it is, in its way, inconsistent with the Constitution, one might almost say an amendment of the Constitution by rule of the U.S. Senate.
"The Framers of the Constitution, this great fundamental, organic American document considered on which kinds of votes, on which issues the will of the majority would not be enough, that a vote of more than a majority would be required, and the Constitution has spelled those instances out quite clearly. Only five areas: Ratification of a treaty requires more than a majority of the Senate; override by the Senate of a Presidential veto requires more than a majority; a vote of impeachment requires more than a majority; passage of a constitutional amendment requires more than a majority; and the expulsion of a Member of Congress requires more than a majority."
According to Lieberman (at least in 1995), it is the Senate rule allowing any filibusters that circumvents the Constitutional amendment process, altering the people's say in governance absent their consent. Biden needs to shore up this particular aspect of his argument.
At one point late in the speech, however, Biden begins mixing apples and oranges in his historical lesson. The bulk of his speech stresses how the Senate was designed to be representative of the states, as opposed to popular representation in that chamber. He also spends a great deal of time on the Constitutional provision that allows each house of Congress to make its own rules. But then he makes this peculiar argument:
"I suffer from teaching constitutional law for the last 13 years, an advanced class on constitutional law at Widener University, a seminar on Saturday morning, and I teach this clause. I point out the essence of our limited constitutional government, which is so different than every other, is that it is based on the consent of the governed. The governed would never have given consent in 1789 if they knew the outfit they were giving the consent to would be able, by a simple majority, to alter their say in their governance."
As I understand the adoption of the Constitution, the states, in their various ratifying conventions, were voting on whether the document prepared by the Philadelphia convention of 1787 should replace the Articles of Confederation. I am not aware of any great debate in these conventions over the internal mechanisms involving the rules of each house, which is the current discussion involving the use of the filibuster on the president's judicial nominees. The "consent of the governed" was given by the people to the Constitution as a whole, and any alteration in that document must come through the amendment process.
Biden's argument on this point was effectively rebutted in 1995 by Joe Lieberman:
"For too long, we have accepted the premise that the filibuster rule is immune. Yet, Mr. President, there is no constitutional basis for it. We impose it on ourselves. And if I may say so respectfully, it is, in its way, inconsistent with the Constitution, one might almost say an amendment of the Constitution by rule of the U.S. Senate.
"The Framers of the Constitution, this great fundamental, organic American document considered on which kinds of votes, on which issues the will of the majority would not be enough, that a vote of more than a majority would be required, and the Constitution has spelled those instances out quite clearly. Only five areas: Ratification of a treaty requires more than a majority of the Senate; override by the Senate of a Presidential veto requires more than a majority; a vote of impeachment requires more than a majority; passage of a constitutional amendment requires more than a majority; and the expulsion of a Member of Congress requires more than a majority."
According to Lieberman (at least in 1995), it is the Senate rule allowing any filibusters that circumvents the Constitutional amendment process, altering the people's say in governance absent their consent. Biden needs to shore up this particular aspect of his argument.
posted by Hal | 1:58 PM
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