Unconstitutional filibuster/cloture keeps government big

Senate action on cloture motions, 1917-2016, shows the ascendance of unconstitutional filibuster/cloture

Senate action on cloture motions [1]

Unconstitutional filibuster/cloture violates the Constitution’s core practical purpose, and plain text

…the core purpose of the new Constitution was to jettison the Articles and the “[g]reat inconveniences had… been experienced in Congress from the article of confederation requiring nine votes in certain cases.”

Delegates… fixed representation in the House according to population, while giving each state an “equal voice” in the Senate.

Article I, Section 3 specifies that the Vice President shall serve as President of the Senate, “but shall have no Vote, unless they be equally divided.” Put simply, Article I, Section 3 shows that the Framers meant for final Senate action on proposed matters to hinge on the vote of a legislative majority, with the Vice President’s vote to determine whether an aye-voting or nay-voting majority exists in the event that the Senators themselves are “equally divided.”

Article I, Section 7 states that “[e]very Bill which shall have passed the House of Representatives and the Senate… shall…. be presented to the President. The critical term in this clause is “passed,” which Americans understood at the time of the framing… to hinge on “the act of a majority of a quorum” in the absence of “specific limitations… found in the Federal Constitution” itself. This understanding finds support in established practice at the time of the framing, Noah Webster’s dictionary of 1828, and the two English legal dictionaries that existed in 1787.

…the Constitution specifies five and only five instances in which the chambers of Congress are to act by supermajority vote. This list… demonstrated understanding—noted by Joseph Story nearly two-hundred years ago—that “departure from the general rule, of the right of the majority to govern, ought not to be allowed but upon the most urgent occasions.”

…Article II’s unitary textual treatment of judicial-branch and executive-branch nominees counsels against countenancing a different treatment of the two groups with regard to permissible forms of senatorial “consent,”…

…Article VI requires Senators… to take an oath to support the Constitution, and so they must honor the limits it imposes.

Unconstitutional filibuster/cloture was confirmed illegal during ratification

In Federalist No. 22, Hamilton decried… “If a pertinacious minority can controul the opinion of a majority… the sense of the smaller number will overrule that of the greater…”

Federalist No. 54 assured the ratifying community that “[u]nder the proposed Constitution, the federal actswill depend merely on the majority of votes in the Federal Legislature

In Federalist No. 58, Madison… concluded that… supermajority voting rules would invite “an interested minority [to] take advantage of [such rules] to screen themselves from equitable sacrifices to the general weal or … to extort unreasonable indulgences.” “It would no longer be the majority that would rule; the power would be transferred to the minority.”

Federalist No. 58 spoke of the risks of supermajority voting rules “[i]n all cases where justice or the general good might require new laws to be passed.”

Federalist No. 75… found fault with “all provisions which require more than the majority of any body to its resolutions.”

Unconstitutional filibuster/cloture was Progressively slipped into place

…the earliest Senates permitted a majority of members to halt debate on any pending matter pursuant to what was called the “Previous Question Rule.”

…the Senate abandoned the Previous Question Rule in 1806… instead for a system that in effect required unanimous consent to end debate on pending matters.

A true filibuster—pursuant to which dissenters openly take and hold the Senate floor—threatens to saddle dissenters with opprobrium by exposing their actions for all to see, making vivid their willingness to throw a wrench in the workings of the upper chamber. …the need to filibuster in this way had exactly this deterrent effect.

…senators utilitized speech-based delays only in exceptional cases for the remainder of the nineteenth century.

…targeted use of obstructionist speechmaking triggered ameliorative reforms, including the Senate’s replacement in 1917 of its unanimous-consent policy with a rule that authorized cloture by a vote of two-thirds of the members in attendance.

…during most of the twentieth century, filibusters focused on civil rights bills, which were bitterly denounced by southern segregationists. …the high water mark of obstructionist speechifying came when southern Senators occupied the floor for seventy-four days in an effort to block passage of the Civil Rights Act of 1964.

…in 1975 the Senate adopted its current rule, which requires sixty votes to end debate, regardless of the number of Senators present. In addition, during this same time frame, the chamber embraced a “two-track” system… in which delays in acting on one matter would not block the Senate from moving forward with other business… The modern stealth system leads to no floor debate.”

Unconstitutional filibuster/cloture keeps unconstitutional big government ratchet-locked in place

One effect of these changes is that the use of Rule XXII to block action by Senate majorities has soared to unprecedented heights in recent years—indeed, to dizzying heights. As a result, “almost all significant legislation” now needs the support of sixty Senators…

…the Cloture Rule… has come to contravene the fundamental principle of legislative majoritarianism established by our founding charter.[2]

  1. Senate Action on Cloture Motions.Senate.gov. www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm. Accessed 28 Jan. 2017.
  2. Coenen, Dan T. “The Filibuster and the Framing: Why the Cloture Rule is Unconstitutional and What to Do About It.” Boston College Law Review 55.1 (2014): 39-92.

Political parties need designs that are structures like the Constitution

Current political parties don't follow the Constitution. Conservative Review Liberty Score for Paul Ryan is F - 52%.      Current political parties don't folllow the Constitution. Conservative Review Liberty Score for Mitch McConnell is F - 40%.

Political parties weren’t designed by the founders, and don’t have structures like the Constitution

In those days, political “parties” were considered evil. Just as the term democracy had the same valence that the term demagogue has today, the term party had the valence of partisan.[2, p. 87.]

Both political parties started as coalitions – Democrats defending slavery, Republicans opposing slavery 

Above all, the new Democratic Party was founded on the idea of states’ rights in defense of slavery.[2, p. 89.]

After the Kansas-Nebraska Act passed Congress over bitter opposition, “popular sovereignty” led to gruesome violence that engulfed the Kansas Territory, as warring factions vied to control the content of its new constitution.

…the Whig party collapsed. In its place rose a new party committed to a different conception of the Constitution than that of the Democrats.

Though the Republican platform conceded the constitutional power of states to preserve slavery (“slavery local”), it advocated a national antislavery program in which slavery would be abolished in the District of Columbia, in the territories, and in federal enclaves (“freedom national”). So threatening was this program to the Slave Power that the southern states seceded even before the Republicans could take power to implement it.[2, p. 98.]

Both political parties have long failed to follow the Constitution

…the rise of progressivism in both political parties led to… the concepts of “judicial restraint” and “deference” to the majoritarian branches, along with the concept of “a living constitution.”[2, p. 81.]

“In state after state, progressives… urged adoption of the secret ballot, direct primaries, the initiative, the referendum, and direct election of senators.“[2, p. 124.]

All of these tropes were devised to evade the constraints on their progressive legislative agenda imposed by our Republican Constitution.[2, p. 81.]

…the more important the issue, the more likely it will engender a political war of all against all to avoid having another’s social policy imposed on you. So, the more important the issue, the less it is fit to be decided at the national level.[2, pp. 183-184.]

“In state after state, progressives… urged… regulating railroads and utilities, restricting lobbying, limiting monopoly, and raising corporate taxes. …workers’ compensation, child labor laws, minimum wage and maximum hours legislation (especially for women workers), and widows’ pensions.“[2, p. 124.]

The Constitution can’t limit the national government until a major party has a structure like the Constitution, and follows the Constitution

… a system of voting does not allow the sovereign people to “rule,” and it is a pernicious myth to claim that they do. For a variety of reasons, ours is generally a two-party system. The best voters can do is discipline the “in“ duopoly party by shifting their electoral support to the “out” duopoly party and hope for some marginal improvement.[2, p. 177.]

Our Republican Constitution will not be restored in our two-party system until one of the two major political parties embraces it as a central plank of its political platform.[2, p. 252.]

Then the electorate will be faced with a true choice, rather than an echo of the Democratic Party.[2, p. 253.]

  1. “Representative Paul D. Ryan.” ConservativeReview.com, 10 Dec. 2016, www.conservativereview.com/members/paul-ryan/liberty-card/. Accessed 10 Dec. 2016.
    “Senator Mitch McConnell.” ConservativeReview.com, 10 Dec. 2016, www.conservativereview.com/members/mitch-mcconnell/liberty-card/. Accessed 10 Dec. 2016.
  2. Barnett, Randy E. Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. HarperCollins, 2016.

Constitution design is a structure to limit the national government

James Madison stops Barack Obama from relighting the Constitution, illustrating the Constitution design in Article I that All legislative powers herein granted shall be vested in congress.

Constitution design controls the people in the national government

…the Declaration of Independence tells us, it is “to secure these rights” that “Governments are instituted among Men.”

The… Constitution, then, provides the law that governs those who govern us

Those servants or agents who swear the oath to “this Constitution”—the written one—can no more change the “law that governs them” than we can change the speed limits that are imposed on us.[2, pp. 23-24.]

Constitution design uses structure to limit the national government

Federalism at the founding can… best be described as “Enumerated Powers Federalism.” …expressed in the first words of Article I, which created Congress: “All legislative powers herein granted shall be vested in a Congress of the United States.” …reinforced by the words of the Tenth Amendment: “The powers not delegated to the United States by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people.”[2, p. 190.]

…the more important the issue, the more likely it will engender a political war of all against all to avoid having another’s social policy imposed on you. So, the more important the issue, the less it is fit to be decided at the national level.[2, pp. 183-184.]

In Constitution design, structure is primary protection for individual rights

The U.S. Constitution is primarily a structure that was intended to protect the individual sovereignty of the people.

Only secondarily, and incompletely, does it expressly protect any particular rights retained by the people. In this sense, the few rights that are enumerated in the text of the Constitution are like the lifeboats on a ship. The fact that today our legal system pays so much attention to the few rights that are contained in the Constitution—such as the freedoms of speech, press, assembly, and the free exercise of religion—is a bad sign. It is a sign that the structural protections of the Constitution have been breached, and we are now all in the lifeboats.[2, pp. 167-168.]

“We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.”

Instead, Justice Thomas urged us to “return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power.”[2, pp. 213-214.]

  1. Romano, Robert. “Momentum Builds for Article 1 Supplemental.” conservativereview.com, 7 Feb. 2016, www.conservativereview.com/commentary/2016/02/momentum-builds-for-article-1-supplemental. Accessed 10 Dec. 2016.
  2. Barnett, Randy E. Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. HarperCollins, 2016.