The Constitutionality of the Filibuster

By Gerhardt, Michael J. | Constitutional Commentary, Summer 2004 | Go to article overview

The Constitutionality of the Filibuster


Gerhardt, Michael J., Constitutional Commentary


INTRODUCTION

Ignorance about the filibuster is almost universal. What many people might know about the filibuster is based on the climax of the classic film, Mr. Smith Goes to Washington, when Jimmy Stewart's character launches a filibuster to stop legislation that would usurp land on which he had hoped to build a special place for wayward boys. Some people might recall reading in history about the use of the filibuster to block civil rights legislation, while it is possible that most literate Americans are familiar with the recent denunciations of the filibusters that have blocked floor votes on six of President George W. Bush's judicial nominations as "outrageous," "disgraceful," "unconstitutional," and nothing short of a violation of basic principles of democratic government. (1) The denunciations fell short of their intended purpose of embarrassing the senators responsible for the filibusters, much less of motivating the full Senate to consider the Senate Majority Leader's proposal to amend Senate Rules to allow only a simple majority rather than three-fifths, or 60, senators to end a filibuster. (2) In the end, none of these fragmentary images nor the heated denunciations have enhanced popular understanding of the filibuster or the reasons for its longevity and constitutionality.

This Essay addresses the basic arguments for and against the constitutionality of the filibuster. In spite of the fact that intense debates over the constitutionality of the filibuster have been front page news and intensely divided the Senate throughout 2003, (3) very few legal scholars have devoted serious attention to the filibuster. (4) Determining the constitutionality of the filibuster is, however, by no means easy. It requires analyzing surprisingly complex problems within the legislative process. These include, inter alia, making sense of majority rule within the legislative process; the limits to the Senate's discretion in formulating internal rules; the Senate's unique structure and organization; and how the filibuster may alter the balance of power within the Senate and between the Senate and other institutions, including the presidency and the federal judiciary. Assessing the constitutionality of the filibuster further requires determining whether any Senate rule violates "anti-entrenchment," an ancient principle forbidding a past legislature from binding a current one to accept a rule or practice it otherwise would reject, because it allows a filibuster of a motion to amend Rule XXII (or any other Senate rule) that may be ended only by supermajority vote.

Finally, this Essay sketches some solutions for redressing problems with constitutional argumentation in, and theorizing about, the Senate. It calls attention to the need to measure and ensure the quality of discourse within the Senate on the filibuster and other constitutional matters. This Essay also develops a theory of nonjudicial precedent, that will clarify how much deference senators and perhaps other institutions (including courts) ought to give to the Senate's historical practices. (5)

Part I reviews the relatively straightforward textual, structural, and historical arguments supporting the constitutionality of the filibuster. The filibuster derives its principal authority from the Senate's express power to design its own procedural rules to govern its internal affairs and the Senate's consistent support for its constitutionality. It is also one of many counter-majoritarian features of the Senate, such as the committee system and unanimous consent requirements for agenda-setting. The same constitutional arguments support each of these practices. If these practices are constitutional, so is the filibuster. (6)

Part II addresses the strongest arguments against the constitutionality of the filibuster. First, the filibuster is arguably illegitimate, because it is not included among the supermajority voting requirements explicitly set forth in the Constitution. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Constitutionality of the Filibuster
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.