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* A Constitutional Argument Against the Filibuster as Used by the Republicans

By   Follow Me on Twitter     Message Andrew Schmookler     Permalink
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The argument I make here against the constitutionality of the filibuster rule --as now practiced by the Republicans-- is an unorthodox one. Indeed, I can't recall coming across a constitutional argument of its kind before.

The nub of the unorthodoxy can be found in that phrase "as now practiced." In other words, I am saying that a change from using the filibuster rule from how it has been used traditionally --only in somewhat extraordinary circumstances-- and how it has been used by today's Republican Party --as an across the board hurdle for passage of any legislation-- alters the status of the rule and its relationship to the Constitution's expectations regarding the Senate.

The Constitution gives each house of Congress the right to establish its own rules. But does the Constitution allow those rules to supercede the Constitution?

Thus I argue:


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The filibuster has become unconstitutional. The filibuster is not even a law. It is just a rule of the Senate. It is below a law, and the Constitution is a level above the law: the ultimate authority.

The Constitution would have measures pass the Senate if they enjoy a majority support. But when the Republicans started using the cloture rule intended for special situations and emergencies--into an across-the-board, "Nothing can pass without 60 votes," it crossed the line of constitutional acceptability.

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The inferior was allowed to dominate the superior. What could be acceptable used in a minority of instances becomes a violation of the spirit and intent of the Constitution if is exercised all the time.

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Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. His new book -- written to have an impact on the central political battle of our time -- is (more...)
 

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