Liberals are invoking the framers of the Constitution in their latest attempt to employ judges to subvert the institutions of government. At issue is the Senate's cloture rule, the requirement for three-fifths of voting members to vote to end debate and vote on a bill. Supporters of the Dream Act, which passed the House but couldn't get to cloture in the Senate, are suing to have the practice overturned as an unconstitutional imposition on majority rule.
The argument in Common Cause et al. v. Joseph Biden et al. centers on essays by Alexander Hamilton and James Madison in the Federalist Papers that opposed requirements for supermajority votes in the legislature. The six exceptions - which include ratifying treaties, impeachment, expulsion from the legislature and amending the Constitution - are by this logic the only intended examples of permitted supermajority voting. Cloture imposes a de facto supermajority requirement and, in the words of Hamilton, substitutes "the pleasure, caprice or artifices of an insignificant, turbulent or corrupt junta, to the regular deliberations and decisions of a respectable majority."
It's tricky business invoking the framers, especially for liberals, who have to face a mass of contradictions. After all, they usually argue the Constitution is infinitely flexible and never intended to be a captive of the "dead hand of history." Suddenly discussing original intent when it is convenient comes across as hypocritical.
Whatever liberals suppose the Founders might have thought about cloture, they have to contend with Article 1 Section 5 of the Constitution. Clause 2 states, "Each House may determine the Rules of its Proceedings." Courts have been loath to intrude on the inner workings of the other branches of government, and in this case the constitutional mandate for the Senate to order its affairs is clear. Furthermore, the remedy suggested by the plaintiffs - an unprecedented breach of the separation of powers - is overbroad, particularly when the Senate itself could change its rules whenever it wants.
The cloture rule was devised in 1917 and modified in 1975, but critics say the country is facing a cloture crisis. Cloture votes have soared in the past 40 years, and the number of motions filed today are about 10 times what they were before the 1975 rule change. This argument, however, confuses an effect for a cause. The rise in filibusters has closely tracked the increasing partisanship in American politics, which is itself the result of the expansion of centralized government power. The partisan lines are so starkly drawn because there is much more at stake than there used to be, with the country facing crippling debt. Ironically, ending the cloture rule may lead to even more bitter partisanship because requiring 60 votes to pass legislation leads to more compromise and deal-making than requiring a simple majority.
The solution to this problem is not having activist courts dictate Senate rules. It is reducing the power of the federal government and returning to the type of federal system envisioned by the Founders. Those seeking to appeal to original intent should stop cherry-picking positions that support their particular concerns and develop an appreciation for the original framework as a whole. They might be surprised how well it can work.
James S. Robbins is a senior editorial writer at The Washington Times and author of the forthcoming book, “Native Americans: Patriotism, Exceptionalism, and the New American Identity” (Encounter, 2012).
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