Nuclear Fallout

Presumably by this time tomorrow we’ll be suffering from the effects of nuclear fallout, or its absence.

I’ve written a number of times that, in my opinion, this whole debate has been overheated, that the republic will not survive or fall because a minority of Senators are, or are not, allowed to talk things to death.

Others, however, disagree, seeming to believe that the Senate filibuster has become the lodestone, the Plymouth Rock, of our political culture. An able (and quite long) expression of this view was expressed on the Senate floor a couple of weeks ago by Sen. Joe Biden, and his remarks are worth revisiting in their entirety. They are unusually well researched (lots of quotes from founding fathers and cousins), well-expressed, and besides, Biden is reportedly considering another presidential run. (See here for many other examples of Democratic hypocrisy on filibuster, especially by then Senator Barack Obama.)

Biden’s entire speech is a paen to “checks and balances,” to preserving the rights, and powers, of political minorities.

The Framers sought not to ensure simple majority rule, but to allow minority views — whether they be conservative, liberal, or moderate — to have an enduring role in the Senate in order to check the excess of the majority.

That system is now being called into serious question….

Really? Checks and balances, however, usually refers to the branches of government checking each other, not to a minority in one branch preventing it from acting. Thus I believe Biden goes overboard when he asserts:

Some in this body propose a radical change to the constitutional structure of the Senate to remove this independence.

As I’ve argued, there is nothing in the Constitution, or even in the small “c” constitution of the Senate, that provides an unfettered right to filibuster. Even Biden himself recognized this not long ago, when he supported shutting off debate by majority vote, but he now recants and apologizes for that mistake.

In 1975, I was part of a bipartisan effort to lower the threshold for cloture from 2/3 to 3/5. Many of us were reacting against the filibustering for so many years of vital civil rights legislation. Civil rights is an issue I feel passionately about and was a strong impetus for me seeking public office in the first place. Don’t get me wrong — I was not calling the shots back in 1975; I was a junior Senator having been in the chamber for only two years. But I will make no bones about it — for about two weeks in the winter of 1975 — I was part of a slim bipartisan majority that supported jettisoning established Senate rules and ending debate on a rules change by a simple majority vote.

…. It was a change in degree, not a fundamental restructuring of the Senate to completely do away with minority rights [And this change is?]…. Nonetheless, my decision to support cutting off debate on a rules change by a simple majority vote was misguided.

Indeed, if this quote is correct, as recently as 1997 Sen. Biden was ardently defending up or down votes on nominees:

But I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor. [Congressional Record, 19 March 1997]

But let’s let bygones be bygones. Everyone, especially Senators, can change his mind. The basic point is that I think Sen. Biden reads too much Constitutional significance into the current debate, just as he tries — without much success, in my opinion — to enlist the whole panoply of the Founding Fathers into his defense of what is, after all, only a procedural rule of the Senate that has been changed several times in the past.

Although there is much FF (Founding Father) quoting in Sen. Biden’s speech, one highly relevant and interesting part of the Constitutional debates goes unmentioned. As Ann Althouse of the University of Wisconsin law school (HatTip to Instapundit) has just reminded us (you did know this before, didn’t you?), the Constitution’s framers gave no thought whatever to requiring a supermajority of Senators to approve judicial nominations, but they seriously considered allowing the president’s judicial nominees to be approved with the advice and consent of only one third of the Senators.

Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

Indeed, notwithstanding Sen. Biden’s erroneous comment to Chris Matthews — “During those debates on the Constitution, there was no one single time where more than, I think, three votes for allowing the president even in on the deal” — the framers were quite concerned that giving the Senate too much influence over the selection of judges would be a mistake. Typical of these concerns was Madison’s:

Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides, the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies.

Of course, Madison foresaw much but even he could not foresee today’s Senate:

On the other hand He was not satisfied with referring the appointment to the Executive. He rather inclined to give it to the Senatorial branch, as numerous eno’ to be confided in–as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments.

Today’s Senate, for better or worse, is much more like yesterday’s (and today’s) House than the Senate of wise and stable men envisioned by Madison.

Although Sen. Biden himself seems ambivalent about identifying himself as spokesman for a minority — he couldn’t help insisting to Chris Matthews that “We 46 Democrats represent more of people in America than the 54 of them” [For the record, there are 55 Republicans and 44 Democrats and 1 Democratic fellow traveler, Jeffords, in the Senate], a recurrent theme in his (and others’) defense of the filibuster is that it is essential to protect the minority against the “excess” of the majority. (Before long they’ll be defending states rights — Oh wait, I forgot. They did that in Florida 2000 –and even the Electoral College — if only Kerry had won a few more votes in Ohio.)

As long ago as here I mentioned one aspect of this argument that has always struck me as peculiar, and that is the eery resemblance of the extreme position taken by Senate Democrats on their constitutional, or even Constitutional, right to block offensive appointments and the strikingly similar argument made by John C. Calhoun well over a century ago for what he called the need for a “concurrent majority.”

The eeriness of this association was just brought home to me in force, since as it happens I read Sen. Biden’s speech for the first time while we were in Calhoun Country, central South Carolina, recently for a wedding. Talk about deja vu all over again! (Yes, I remember Calhoun well.) A quick look at some Calhoun material confirmed my initial suspicion.

According to Calhoun, numerical majorities were as selfish and rapacious as individual men when it came to trampling on minority interests. His proposed solution was the concurrent majority, essentially a constitutional method of enabling minorities to block the actions of majorities that might threaten the rights of the minority, making them, in essence, veto groups.

Or again, from a new foreword to Calhoun’s classic Disquisition on Government:

The Disquisition expounds his doctrine of the concurrent majority — the right of significant interests to have a veto over either the enactment or the implementation of a public law.

….

In essence, Calhoun suggests that the theory of The Federalist Papers makes inadequate safeguards for the maintenance of limited government. In the absence of such provisions, Publius’s extended republic not only fails to prevent majority tyranny, but actually encourages it by allowing a numerical majority to make laws on any subject it declares to be the legitimate business of government. Given the nature of man, argues Calhoun, it is not long before such majorities become overbearing: They begin to enact laws to their own advantage and to the disadvantage and abuse of minority interests.

John C. Calhoun (D, SC) would be right at home as a Democrat in today’s U.S. Senate.