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View Diary: Common Cause, Members of Congress sue to end filibuster (74 comments)

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  •  I'd be embarrassed to bring this case. (2+ / 0-)
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    Loge, archer070

    I mean, I get the big idea of trying to do something rather than nothing, but there is really no legal precedent here.  The few precedents cited by the WaPo article are plainly inapplicable.

    [T]he Court held that while “the Constitution empowers each house to determine its rules of proceedings,” it “may not by its rules ignore constitutional restraints or violate fundamental rights.”
    I haven't yet heard a "constitutional restraint" being cited, and a "fundamental right" is a  technical term with specific meaning relating to the Bill of Rights and the 14th Amendment - no individual whose fundamental rights have been violated through application of cloture rules can be cited.

    In Bondurant's article, he frames the issue in a dishonest fashion:

    The notion that the Framers of the Constitution intended to allow a minor- ity in the U.S. Senate to exercise veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth.
    Was the filibuster on the mind of the drafters?  Probably not.  But it is completely settled law that the Congress may set its own rules within Constitutional bounds.  So I don't disagree with Bondurant on that point - there was no right to unlimited debate in the English Parliament.  But it takes an absurd leap to get from "no right to unlimited debate" to reading an additional unwritten clause into the Constitution that, in invisible ink, articulates permitted and prohibited parliamentary rules.

    I also don't disagree that an unconstitutional rule is plainly justiciable.  By way of example, the Senate probably could not by its own rules refuse to sit an individual protected by the equal protection clause.  It probably could not establish its own term limits.  Those issues are plainly justiciable.

    But for this suit to be credible, I'd have to be convinced that the Senatorial majority vote is a fundamental right.  And Bondurant just doesn't get there; he skipped that step.  It's not enough to prove that the rules are probably justiciable.

    "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

    by auron renouille on Thu May 17, 2012 at 06:42:20 PM PDT

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