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More Re: Fillibusters


Ramesh, before we close this thread:

Your entire argument is based on what the Constitution doesn’t prevent, and you draw no reasonable inferences from the Constitution’s specific provisions or structure, e.g., supermajority requirements for convictions related to impeachment, adoption of treaties, expelling members, overriding vetos, amending the Constitution, 14th amendment, and 25th amendment. Justice Brennan’s Irish eyes are no doubt smiling upon you. The absurdity of this position is that the framers apparently should have spent the summer of 1787 enumerating every instance in which they specifically desired non-supermarjority votes, rather than the opposite. Meanwhile, for over 200 years, most of us — and more importantly, most senators — understood how the Senate’s advice and consent responsibility operated, i.e., that the Senate could not impose a supermajority requirement through the use of the filibuster. I guess it took Ted Kennedy et al to breath life into this. Perhaps we should call it the dormant advice and consent clause. But let’s follow your logic. Forget about the filibuster, for argument sake. Can the Senate declare that it will require a 60 vote majority (or any supermajority number) to confirm judges? I assume you would contend that since the Constitution is silent on this, and the Senate has the authority to make its own rules, it could. And that’s exactly what it’s doing through the backdoor.

The advice and consent clause is an Article II power — an executive power. Congressional efforts to weaken that power, under the guise of legislative rule-making, are an assault on the separation of powers and a dubious argument at best. I’ve yet to receive a single constitutional defense for the Kennedy-Ramesh position, other than to argue in the alternative and repeatedly cite the advice and consent clause.

As for the committee argument, that’s a strawman. The full Senate can take up any issue before any committee. And that’s the point. As applies to judges, the filibuster prevents the full Senate from giving its advice and consent.

Now, as for the Commerce Clause, you’re mistaken. Congress’s power to regulate non-commerce flowed from Wickard, which bastardized the word “commerce” in the Commerce Clause. The literature is too long to cite here. It has absolutely nothing to do with the Tenth Amendment. The Commerce Clause speaks to what authority has been granted to Congress. And I say that with a straight face.


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