The debate on the filibuster of judicial nominations and the nuclear option to permit cloture with a simple majority rather than the current three-fifths majority seems, unfortunately, to be mired in partisan thought. Lo and behold, Republicans see no problem with changing the rules of Senate debate, while Democrats consider this an outrage against the spirit of the Constitution. Surprise, surprise.

I propose to consider this problem from the top down rather than from the bottom up. Rather than ask whether this particular action is justified, I propose to ask a question about the general principle of the use of supermajorities. The Constitution requires supermajority votes in seven situations. The basic concept seems to be that matters of great import should require a higher standard of agreement than normal matters. I think we can all agree on the basic principle here; we don't want to be amending the Constitution or impeaching the President by a 51-49 vote in the Senate.

The question we face today is whether judicial nominations fall into the category of matters of great import, or whether they should be treated as business as usual, and should therefore require a simple majority. We can of course butt heads all day on this question, when it is so particular. But I propose to challenge the readership with a question that will force a more in-depth analysis of the question:

What criteria would you establish for distinguishing normal legislative business from those matters of greater import that should require some form of supermajority?

Remember, this IS a trick question! If you construct a quick and dirty set of criteria designed only to support the particular side you take on the filibuster question, the rest of us will pounce upon you by applying your criteria to all manner of other situations with the goal of making your criteria look stupid. So think this through!

I suppose it's incumbent upon me to answer my own question. I still have many doubts about my answer, but I can make a few statements:

A necessary but not sufficient condition for requiring a supermajority is a case in which a new President and Congress would not be able to reverse the issue in question. For example, there's no point in requiring a supermajority for this year's budget, because the next Congress can readily alter the budget in any way they see fit. Note that this criterion would apply to judicial appointments but not to Cabinet appointments. It does not apply to the eventual consequences of a decision, but only to the condition established by the decision. In other words, if this Congress chose to declare war on the entire world, the consequences of that decision would remain with us for decades, but a new Congress could reverse the decision itself by cutting off funds for the prosecution of that war. The original decision is therefore quickly reversible and therefore fails to meet this criterion.

A second necessary but insufficient criterion I would apply would take into consideration the political import of the decision. Clearly there's no point in requiring supermajorities for votes on minor issues. The difficulty with this criterion lies in the interpretation of "political import". I would base it on the number of people who hold strong opinions on either side of the issue. To put it in negative terms, I would define an issue as politically important if the number of people who profess to have no opinion on the question is small. For example, on a hot-button issue such as abortion, I would require some kind of supermajority for ANY substantial alteration in current law, regardless of which side it favors.

These two criteria do not complete my list; I have several others in mind but so far have not been able to articulate them precisely enough for inclusion here. I'm hoping that somebody else will be able to give form to some of these concepts.

By the way, a supermajority need not be two-thirds. I can see applying three-fifths supermajority requirements to many votes.

The fights in the Senate over the judicial nominations are happening because the judiciary wields absolute power. I think the Constitution should be amended to put a check on that power. The Supreme Court should be limited in its ability to overturn legislation as unconstitutional. Two possibilities come to mind:

(1) Permit Congress to overturn such a Supreme Court decision by a supermajority vote.

or

(2) Require any Supreme Court decision that overturns legislation as unconstitutional to be signed on to by a "supermajority" of justices -- say 7 out of 9 of them.

I favor #2 because it maintains the independence of the judiciary but requires the opinions in these cases to cut across political lines.

Hayleyanne, I disagree with your statements but, as they're not germane to this topic, I'll refrain from taking them up until we have a topic to address them directly. In the meantime, though, I'd like to ask if you have response to this topic.

Erasmussimo, I'd like to debate your proposals but your meaning is unclear to me. Are you saying: (1) if Congress (and/or the President?) wishes to make an "irrevocable" decision AND (2) the issue is politically "hot", then supermajority mode is engaged? Or are you saying: (1) if Congress is not making an "irrevocable" decision AND (2) the issue is not politically "hot", then supermajority mode should not be engaged? Maybe, once that's elucidated, I can give a better response. Until then...

I find the idea of involving politically "hot" topics as part of the requirement for supermajority to be interesting. How would political "hotness" be ascertained (in a legislative context)? Would it be a simple majority vote? Would it be decided in committee? If there's more than X numbers of hours of debate, is it politically "hot"? I think there's major implementation details to be addressed.

I'm not ready to post my criteria. I'll think about it some more.

I disagree with your points Hayleyanne. The judiciary does not, in fact, wield absolute power. The judiciary's obligation is to interpret the law that Congress creates. The flaws usually lie with the law to begin with, because they are naturally written vague (because that is the only way they would pass to begin with) and open to interpretation. The Constitution already inherently has the checks and balances in place for the Legislative branch to check the judiciary's powers. They have the power to create new laws.

The options you gave as ways to check their power are flawed and very destructive to the framework of the country. The first option gives Congress absolute power and as partisan as they are currently, would be very destructive as it would give Congress multiple oopportunities to overturn judge's decisions just because they didn't like the outcome. What if they didn't agree with Brown v. Board of Education? We would go back to segregated schools and an even greater racial divison, all at the whim of a few hundred people who didn't agree with the judicial decision. Even though that sounds silly, that would be a great possibility if the wrong people got in control of Congress. The second option is dangerous as well, because usually the unconstitutional question is very important, and the Supreme Court would not take the case unless it is extremely important to the country. If you make it necessary that 7 out of the 9 justices sign off on the unconstitutionality question, that would undermine the judicial process and the Supreme Court would end up only taking cases that were "slam dunks." Under that scenario, Roe v. Wade would probably never been heard before the Supreme Court. And whether you agree with the result or not, I'm sure you can agree that it was an important enough issue to be heard.

Indeed, it is. You are asking for the criteria for distinguishing normal legislative business fom matters of greater import, under the assumption that the latter should require a supermajority and the former should not. I disagree with such assumptions.

Currently, the Senate's filibuster rule sets up a scenario under which the whim of one Senator forces a supermajority on any issue that needs a floor vote to pass, effectively allowing any Senator to usurp the Veto power granted in the Constitution to the President.

Now for my criteria. Where the Constitution says a majority is sufficient, Congress defies the Constitution to mandate a supermajority. Where the Constitution does not mandate a vote ("consent" can be granted silently through inaction after a period of time) Congress violates the Constitution to mandate a vote as the only form of consent. Congress would not violate the Constitution to allow voting as one of several means of consent, and Congress would not violate the Constitution to allow an extraconstitutional supermajority requirement as a means of delaying a majority vote for a period of time, but as with the Cardinals selecting a Pope, if a cloture supermajority cannot be mustered after a period of time, the cloture threshhold should eventually be reduced to a majority level in order to avoid defiance of the Constitution's requirement of majority votes or consent in most circumstances.

Using the terms framed by the question, the Constitution already distinguishes "normal legislative business from those matters of greater import that should require some form of supermajority". It should take an Amendment to force a firm supermajority where the Constitution does not already require one, not just the whims of one Senator.

I believe a supermajority requirement should exist in only rare instances, specifically for actions that limit the democratic process. The Constitution can only be amended by supermajority because it trumps regular legislation enacted by the people through the democratic process. It therefore requires a supermajority to amend it. Theoretically, then, the supermajority requirement should be reserved for those instances where the normal democratic process cannot easily correct the action.

Theoretically, if you believe that the federal courts simply interpret the Constitution, there should be no need for supermajority requirement in the nomination process for judges. In other words, if the judiciary is not “political” you should see no need for a supermajority in the Senate to confirm judicial nominees. After all, the courts are not making new law, they are simply interpreting existing law. In other words, if judges are not legislating, there is no circumvention of the democratic process.

In contrast, if you acknowledge that the federal courts have the ability to amend the Constitution to trump democratically enacted legislation you should support a supermajority vote in the nomination process. Under this view, the judiciary is indeed politicized, and it holds the power to circumvent the democratic process with no check.

You can’t have it both ways, which is what liberals are trying to do. I can’t tell you how many times I have seen, read, heard, this type of response when a court is accused of judicial activism:



Liberals are loathe to acknowledge that courts do, indeed, legislate from the bench. Barbara Boxer let slip the real view of liberals when it comes to the judiciary in recent comments made regarding the judicial filibustering that is going on:



Yes, judges do, indeed, legislate from the bench. I find it duplicitous on the one hand, to deny that judges are doing anything more than interpret the Constitution, and on the other hand, decry the need for a supermajority requirement in the confirmation process for federal judicial nominees because there is “absolutely no check and balance” on their decisions. Why is there a need for a check on the judiciary if it is not legislating from the bench?

Hypocrisy aside, given the power of the judiciary to circumvent the legislative and democratic process, a supermajority requirement is arguably necessary in the nomination process. The problem with this conclusion is that the Constitution itself does not require any such requirement. The Constitution was very good about anticipating such situations—why did it not anticipate this one? It is too much of a stretch to argue that it did anticipate it through the rules on Senate governance. The Constitution clearly spelled out those instances where a supermajority is required and the nomination process isn’t one of them.

I am afraid the topic question of this thread ignores the pink elephant in the room. It doesn’t really matter what kind of restrictions we place on congressional action when the Court can trump all of it.

The real question is whether we should continue to permit the Court to run roughshod over the democratic process at all. The Left argues that the court is the only institution that will protect the rights of minorities and prevent the tyranny of the majority. But is this really true? Perhaps it is an interesting question for debate in another thread. Does the country need nine Justices to save us from ourselves? If this was the intended function of the Court, why then did the Framers not require a supermajority vote on judicial nominations? Finally, by allowing the judiciary to become politicized, have we not destroyed its ability to protect the minority from the majority at all?


Finally in response to this post:



Right. Congress has the power to check the judiciary's power by creating new laws that the judiciary can then declare unconstitutional.

I think haleyanne's point is on topic because the question referenced "normal legislative business" and not the Congress. Judicial Review is the legislative power of the judiciary, and because it is used so frequently, it qualifies as "normal legislative business." Also, her option to allow a supermajority in Congress to check Judicial Review is a direct answer to the posed question, even if "legislative" intended a "Congressional" implication.



Who has the final say on law? Whose opinions trump legislation without legislative recourse? The judiciary, particularly its highest levels.


And that is it's only Constitutional mandate-- it is to hear appeals and issue opinions that apply only to specific cases. Instead, it issues opinions that defy its constitutional mandate by striking down legislation with which five of its members disagree, rather than interpreting it.


So is the Constitution. It's one thing to make specific exceptions to general rules under the disgression allowed by the language of the law-- few people would argue with a judiciary that limited itself to that. It is quite another to strike down democratically enacted laws entirely, without recourse.


And the judiciary has the power to overrule the new laws without recourse, so the power of Congress to create new laws is hardly an effective check on the judiciary's power to strike them down, is it?

Almost every power granted by the Constitution to any branch has a corresponding check in at least one other branch, and that check has a corresponding balance in the original branch against the abuse of the check. It is a brilliant system, but it has one major flaw-- Judicial Review is the highest governmental power, and it is not in the Constitution. As a result, Judicial Review is definitely not checked in the Constitution and is definitely not balanced in the Constitution.

Judicial Review was asserted by the Court under the principle of Silent Consent-- the idea that if the People ever thought the Court was abusing the power, they would pass an Amendment to either abolish the practice, or empower it along with more appropriate checks and balances. So the misperception that the Constitution already checks and balances Judicial Review was not shared by those who first asserted Judicial Review.

Instead, they asserted that Judicial Review would be checked by Silent Consent (or the revocation thereof through an Amendment) and balanced by Judicial Restraint. Judicial Restraint is the extraconstitutional principle that justices can be trusted to restrain themselves from abusing their power. Those who first asserted Judicial Review did so under the promise that it would not be used very frequently, and for our nation's first century, the promise was kept-- Judicial Review was used only twice in its first hundred years. Now that it's used closer to twice a year, the promise has been broken, and the lack of Judicial Restraint has proven the truth of "power corrupts." Now, the People's only recourse is to revoke their Silent Consent, probably by making Judicial Review a Constitutional power with appropriate checks and balances.


Since when is democracy always destructive? Yes, sometimes democracy can be destructive, but history has proven other systems, such as monarchies and oligarchies, to be much less trustworthy and much more destructive. hayleyanne has not suggested that the judiciary should have no role to play and that Judicial Review be repealed, only that a democractically elected body be given a reasonable chance to reign in a judicial oligarchy, or that a higher standard be applied to judicial votes that tend to contradict democratically-enacted law.

Is Congress's power to override a Presidential Veto through a supermajority also "flawed and very destructive to the framework of the country?" It's no different than hayleyanne's first option.


If the majority of the Supreme Court can't even get one third of one chamber of Congress to agree with it, then the majority of the Supreme Court is wrong. Period. If the Supreme Court happens to be right while more than two thirds of both houses of Congress are wrong, then the country has problems so big that to allow the Supreme Court the final say would only serve to make matters worse.



I disagree with hayleyanne on option two in that I think in the Supreme Court, unanimity is easier to justify than a supermajority. Whenever there is reasonable doubt (at least one dissenting or abstaining justice) over the unconstitutionality of a law, then a democratically elected body (Congress) should resolve the reasonable doubt, possibly through the supermajority override option. However, I wouldn't have a problem if the amendment that empowers, checks and balances Judicial Review were to also allow a unanimous ruling of the Court to prevent the possibility of a Congressional override-- that way, if there were no resonable doubt at the Supreme Court as to the unconstitutionality of a law, then the Court could keep a runaway Congress from attempting a supermajority override.

Under such a scenario (a blend of hayleyanne's #1 with my unanimous version of #2), there would never be any extra incentive for the Court not to hear a case-- chances are, their majority rulings would stand because it is rare for Congress to muster 2/3 in both houses. In the event an override were almost certain, the Court could still have an opportunity for the final say if their decision were unanimous, as in Brown v. BETK.

(Added later: )

I have recently read some arguments on other forums that before a Congressional supermajority override of the Court is allowed, a determination should be made as to whether or not the Court's decision actually leads to repealed law. However, I would argue that the precedent effect makes every Supreme Court decision equivalent to (or superior to) legislation, so I would protect against bills of attainder (or laws passed to rule on a specific case rather than to establish general rules) by making the override of any Court decision applicable only to nullify the effect of the ruling as a precedent, but to keep intact the Court's decision with respect to the litigants in the specific case.

For example, if a 2/3 supermajority override of Judicial Review had been in place in 1973, and if Congress had mustered 2/3 of both houses to override it, then the Court's decision would continue to apply to the case before it (Roe and Wade would remain bound by the Court's decision, not the override), but the Congressional override would have prevented the opinion in Roe v. Wade from becoming the generalized law of the land-- courts could continue to issue case-by-case exceptions to the general rules, but the general rules would remain intact.

However, I doubt Congress could have mustered a 2/3 majority in both houses to overried Roe v. Wade (or a more structurally sound case), so we'd probably still be in the position we are today-- the difference would be that a democratically elected body would have had the final say, and as a result the pro-lifers and pro-choicers alike would have had to agree that any problem was not with unelected judges, but with a divided populace resulting in a divided Congress, so that the only means of overriding the Court's opinion would be to muster a large consensus among the People who believe the abortion issue important enough to factor into elections-- until then, the judgement of the Court would remain the law of the land. I would think the losing side of any such debate would agree the result would sting a lot less if Roe v. Wade and other controversial decisions could be blamed on the People and their elected representatives more than unelected judges.

I also don't fully understand resistence among self-described liberals against providing a Congressional check against the power of a Court that will probably get far more conservative within the next four years as the "nuclear option" paves the way for easy confirmation of Bush appointees. National elections recently have been nearly 50-50, and with a Democrat Congress being the only thing keeping a truly conservative Court in check, surely the Democrats could persuade enough undecided voters to swing Democrat to give liberalism a fighting chance against the strict constructionists Bush has promised to nominate. When a Bush-appointed Court overturns Roe v. Wade and Congress has no recourse, maybe then liberals will begin to see the value in checking and balancing Judicial Review with a 2/3 supermajority override.

My main interest is in structuring government to protect the People against tyranny (including the tyranny of slight majorities)-- Congressional supermajorities as checks against powerful Courts and Presidential Vetos are good weapons against Tyranny in all three branches, no matter which side of the aisle is in control.

edited for clarity

That's a very good question. I am unclear here because I suspect that some additional criterion should be applied to my first two. So I can say with certainty that the second (negative) form of the proposition you state is correct. The first (positive) is not correct -- it needs to be a bit more restrictive.


This is a really good question. It reveals a kind of Catch-22 in my criterion. If the matter would attract a supermajority, then it doesn't need to require a supermajority, but if it's going to be a close vote, then it requires a supermajority. Catch-22!
Philosophically, I'm thinking in terms of public opinion rather than vote counts in the Congress. I realize now that there's no way to translate my idea into formal practice. We can't have a Gallup poll deciding whether a supermajority is required. I believe that my principle is sound -- that a razor-edge majority on a hot issue should not be able to force an irrevocable issue down the throats of the minority. But translating that into formal expression is proving to be difficult.

This places you in disagreement with the Constitution itself, which mandates supermajorities in seven cases that are clearly of great import.


This is way off the mark. When the Senate makes a decision, that's NOT a "usurpation", that's its Constitutional mandate. And the Constitution specifies that the Senate establishes its own rules of procedure.


Your statements about Constitutional requirements here are patently incorrect. Where does the Constitution say that a majority is sufficient? Where does the Constitution say that absence of consent after a period of time constitutes consent? I defy you to provide the quotations from the Constitution to support your claims.

Hayleyanne, you provide us with a respectable criterion for requiring a supermajority:

But then you turn around and violate your own criterion by introducing a completely unrelated factor:

The function of the federal courts has no bearing on the uncorrectability of the action of confirming the judges. Confirmation is most definitely an uncorrectable process, as positions on the Federal bench are held for life.

I disagree strenuously with your position on the separation of powers; I am therefore creating a new topic to specifically address this issue. For this topic, I implore all to confine themselves to the particular topic of criteria for supermajorities.

Actually, your point would only be valid if I had not used the remainder of my post to qualify that I believe the Constitution specifically states the cases in which a supermajority is required, so that the Constitution rather than Congressional whims should determine when a supermajority is necessary. All matters of law are simultaneously "normal legislative business" and "matters of great import." Determination of when supermajorities are appropriate are primarily structural, not based on some threshold along a spectrum from unimportant laws to important laws. Determining whether a committee meeting will be held on Thursday or Friday rarely takes an act of Congress, and such issues are usually passed by acclamation or unanimous consent-- when you talk about the distinction between a majority and supermajority threshhold, the situation is already important enough-- the question becomes which makes the most sense structurally.



I'm not disputing the power of the Senate to make rules, only their power to make rules that directly contradict the Constitution. Hypothetically, if the Senate made a rule saying that only the votes of white male Senators would be counted, they would also be doing so under their Constitutional mandate to make rules. They would also be violating sound judgement and other Constitutional provisions. Just because the Senate makes a rule and the Constitution allows them to make rules does not mean the rule is unquestionably constitutional.



The Constitution uses words like "approval," "consent," and "majority" which have specific legal definitions-- merely using the terms is enough to convey that they do not imply that failure to achieve a supermajority vote would necessarily prevent them from happening.

Of course, the Constitution does not specifically say, "the only time a supermajority is appropriate is when the Constitution says so," and I have not argued against intermediate use of supermajority cloture votes to delay a vote for a long period of time-- however, the allowability of a majority to meet the Constitutional mandate of "approval," "consent" and "majority" would seem to preclude the notion that the will of the majority in those cases should be indefinitedly blocked by failure to achieve a supermajority.

As to the meaning of terms like "consent" and "approval" allowed to be silent and assumed after a period of time of inaction, the Constitution provides practical descriptions of silent consent or silent approval in the case of Bill becoming law without the signature of the President. If the President can only disapprove (veto) a bill directly-- a period of inaction is interpreted as silent consent/approval, not a veto. The language of the Constitution might leave a certain amount of wiggle room to Senate rules as to the form that their consent of Judicial appointments will take-- passing a resolution should suffice, but the same kind of consent that the President gives to bills could apply-- if an appointment is not voted down within a reasonable amount of time, then the Senate may have silently consented to the nomination as surely as the President who leaves a bill on his desk too long has silently consented to it becoming law without his signature.

edited for clarity

Do you really mean to say that, as a practical matter, all issues before Congress are of equal political import? I find that statement prima facie incorrect.

Are you stating this as a demonstrable fact or a personal preference?

OK, so what provision of the Constitution would be directly violated by a Senate rule requiring a supermajority vote?

I see nothing in the terms "approval" and "consent" that forbid a supermajority vote. Since you declare these to be legal terms with specific legal definitions, could you provide me with the specific legal definitions of these words and point out where those definitions specify simple majorities and not supermajorities?


It would seem to preclude? You are arguing that, since a majority vote could satisfy Constitutional requirements, then it must satisfy them. That doesn't follow.


Your argument fails on two points: first, if the President fails to sign a bill for ten days, AND Congress is not in session, then the bill is vetoed; it's called a "pocket veto". Second, by no logical process does a Constitutional provision applying to the President apply to the Congress.

What criteria would you establish for distinguishing normal legislative business from those matters of greater import that should require some form of supermajority?

This is a hard question for me to answer. I do not favor court tampering schemes of any kind, including Franklin D. Roosevelt’s failed 1937 bid to pack the court.



http://www.msnbc.msn.com/id/7517565/

I just can’t get upset about the issue of activist judges as it is expressed by Pat Buchanan who substituted for Joe Scarborough recently. It seems to me that “judicial activism” is yet another dragon created by the right to malign liberal opposition.

Let’s see: dragons/judicial activism/Scarborough Country=myth

To answer the question: I can’t think of anything that should require a supermajority.

What criteria would you establish for distinguishing normal legislative business from those matters of greater import that should require some form of supermajority?

I'm of the opinion that we should make everything require a super majority, there would be no difference between routine business and urgent issues.

I don't know if things were this way in the 1700's when the framers were cooking up our system of government or if they even dreamed this could possibly happen - but at some point the men and women representing us in Washington stopped representing us and started representing corporations, and special interest causes.

These days most things get passed with a straight party line vote with a few dissenters on each side. If you are a Democrat you are supposed to vote this way, if you are a Republican you are supposed to vote this way. It goes for everything from legislation to confirmation of judges. I highly doubt that the men and women in these positions actually consider the issues anymore, so much as vote against the other side. The other side's position might benefit the people in their districts but that isn't important to them.

The fact that in recent decades we have been heavily legislating "moral" questions on both sides is deeply troubling to me. The side in power, even if only by a percentage point, thinks they have free reign to run with their "mandate" ignoring the fact that close to 50% of the country apparently disagreed with them.

What this would result in is legislation would actually have to serve broad interests and benefit the American people. There would be little chance of extremist legislation getting passed, politicians would have to compromise to get things done. Judges would have to be examined and not just rubber stamped.

If you could get 60-66% of Congress to agree upon an issue then you very well might have an issue that actually needs to be solved by Congress instead of an issue on the agenda of the majority party.

Probably the perfect example of this is the Bankruptcy Bill that recently passed. There is not one single benefit in this bill for the American people, whether they are Republicans or Democrats. There is however a whole lot of benefit for the corporations that have been sponsoring the Republicans for years. If we needed a 60% super majority to pass legislation then something like this would never come to pass - nor should it.

Time to check your facts, Cube. The Bankruptcy Bill passed with large super majorities in both Houses of Congress: 74 Senators (74%) and 302 Congressmen (65%) voted for that legislation. It was bi-partisan (to the extent that the term "bipartisan" has any meaning today...). Apparently some people felt it was the correct thing to do legislatively.

What criteria would you establish for distinguishing normal legislative business from those matters of greater import that should require some form of supermajority?

None! The Constitution spells out that "a Majority of each [House] shall constitute a Quorum to do Business" (Article 1, Section 5). The Constitution then spells out the lone instances where a simple majority are insufficient. Doing it any other way would put a very different slant on the way business is done in Washington and the Law of Unintended Consequences is always ready to rear its ugly head.

There's a long Latin phrase (expressio unius est exclusio alterius) that constitutes a legal term for what you are describing. The purport of it is that a list of specifications is assumed to be complete and to exclude any other specifications, unless language is otherwise entered that specifies otherwise. This is the foundation for the boilerplate phrase "including but not limited to". The most common interpretation is that this rule applies when all the elements of the list are gathered together into a single whole. In other words, if the document says, "A, B, C, E, H, and J" in a single place, then the most common interpretation is that D, F, G, and I are excluded. However, where the document scatters items, they are not interpreted to be a list under expressio unius. Therefore I think your intepretation does not comport with most legal opinion.

Please reread my original post and stop quoting me out of context. I contrasted matters of law with such things as scheduling issues. Any law that restricts the rights of the People is important, and most law either restricts the rights of the people in some way or reverses law that restricted the rights of the People in some way. Lawmaking is intended to be important and have important ramifications-- to assert otherwise would be prima facie incorrect and an overt disregard of how law affects the People and the erosion of their rights.



Cite an example of how I'm wrong if you care to discuss this further. Otherwise, accept my opinion as dogma. Muahahahaha! Sorry, couldn't help injecting a little humor.



Any that does not explicitly require a supermajority vote. Take your pick. Throw a dart.

For approval or consent, a supermajority is sufficient but not required. Congress routinely consents without a supermajority. Congress routinely consents by acclamation and unanimous consent without even bothering to see if a quorum is present or if a majority of that quorum actually voted. A supermajority is not required for consent-- if present, it is sufficient (unanimous consent can be construed as a supermajority)-- but generally stated consent does not imply a supermajority, so if consent is given by some other means (majority being a common one) then consent is given.



No, that particular straw man is not what I am intending to argue-- I am arguing that the framers of the Constitution meant what they said and said what they meant-- they required a supermajority when they believed one was needed for structural reasons (in cases where a simple majority would not allow a good enough check on the potential tyranny of slight majorities, etc.)-- and used words implying various means of determining simple majorities in all other areas. I am only arguing that the Constitution actually means what it actually says, that's all.



My argument succeeds on two points. First, the pocket veto is an interesting exception, but not really relevant to the fact that a form of silent consent is in the Constitution, therefore it does not detract from my example. Second, you inquired as to an example of silent consent in the Constitution, and I provided one. The logical process is that terminology is used in a generally consistent and meaningful way throughout the Constitution; and that it is not the kind of document that stops and provides long, drawn-out definitions and qualifications for words that are commonly used; and that the Constitution is a document that only grants those powers which it specifies and reserves all others for the People-- whenever the Constitution intended a minority to have power over a slight majority, it said so-- otherwise, such a power is not granted.

If the framers had been under an obligation to list off everything they did not mean when they used words from the dictionary or with well-established definitions in the English language, we would end up with sentences like "advice and consent, but not by casting lots or duelling or reading tea leaves or consulting magic 8-balls or by forcing unanimity or by forcing a 3/4 vote or a 2/3 vote or a 3/5 vote, but by simple, plain old consent, whose definition we will now reprint from 459 sources in 97 languages and 347 dialects verbatim so that we can be clear... ad nauseum."

Instead, where the Constitution means 2/3 vote, it says 2/3 vote. Wherever else the Constitution mentions approval, consent or majority, to extraconstitutionally grant more power to those holding unpopular positions than they are given in the Constitution (beyond a temporary delay) becomes an unconstitutional, undemocratic power grab by those in the less popular position.

The same applies regardless of which party is doing it and regarless of how noble they think their reasons are--except maybe one. If I were a senator, I'd filibuster every last piece of legislation the old fashioned way until the Senate adopted my proposal to revert to a majority cloture vote after a certain number of days during a session, and also to provide for silent consent of nominations that are filibustered longer than a certain amount of time during a session. Everybody be glad I'm not a Senator.

I actually like the first option better Halley. In the second option, the Supreme Court must effectively remain silent unless it has a 2/3 consensus. The first option just gives the congress a veto.

It's an interesting concept overall though. I think that judges have very few checks on their power, and they've abused it a bit too much recently.

I find your reasoning particularly difficult to penetrate. You seem to be saying that, since simple majorities are often used for a great deal of Congressional business, supermajorities are forbidden by the Constitution. Huh?
I am nonplussed by your statement that, "generally stated, consent does not imply a supermajority". This strikes me as a non sequitur. A supermajority is the means by which the end consent is obtained. Could you clarify this point?
And your last clause, "if consent is given by some other means (majority being a common one) then consent is given" amounts to a tautology. The question is whether consent can be given in the absence of a supermajority.


OK, so you are taking a strict constructionist position. That means that you can't apply interpretations to the text of the Constitution; you'll have no truck with arguments about the meanings of the various terms used; they must be taken at face value. You argue that only what is explicitly declared in the Constitution constitutes law. Very well, how does that position comport with your subsequent paragraph:


Doesn't this constitute your own interpretation of the meaning of the text?


C'mon, Jack22, this is a pretty silly argument, don't you think? The drafters of the Constitution were lawyers who knew how to deal with such issues, and did so. The fact that they specified 7 cases in which supermajorities are required means only that supermajorities are required in those seven cases. It does not mean that supermajorities cannot be required in cases otherwise unaddressed in the Constitution.


The only explicit statement that the Constitution makes with regard to Senatorial filibusters (to which you are obviously referring) is that Congress may make its own rules. That's what the text says and that's what the Founders meant. So, as regards the particular question of the Senatorial filibuster, the Senate can pass any rule it wants. This is not a law, it's a procedural rule.

But I am asking here about the general issue of supermajorities. Under what conditions should minorities have the additional protections provided by supermajorities? An earlier correspondent voiced what appears to be a general agreement that supermajorities should be required when a matter cannot be readily reversed by normal democratic processes. I take it that you reject this formulation, and would dispense entirely with the supermajority requirement except in those cases mandated by the Constitution. Is this correct?

I was talking about the original version of the bill that was sent to the house, you know the one that started that other debate? The same one where the senate Democrats tried to insert all of these amendments to soften the blow?

And apparently a lot of politicians are either picking their battles or they are bought, just because it passed does not mean it was the right thing to do. I sincerely hope that the people who say that "this was a good bill" have to experience bankruptcy some day, we'll see what they say then.


The question doesn't have to do with can a supermajority be required, it had to do with should it be required. Obviously the Constitution lays out how things are to be done. The discussion here is whether they should be done that way ot not. Clearly a constitutional amendment would be required to change this.

I don't understand how you got that, either. I was making the point that the term "consent" does not preclude a simple majority, and if the Constitution had intended to convey such power to the minority when elsewhere it reserves that power for the majority, then the Constitution would have explicitly discussed a supermajority in order to convey that power.


generally stated, consent does not imply (the necessity to use) a supermajority (as opposed to less restrictive means of measuring consent)


And in logic, a tautology is synonymous with answering, "Yes." If you had not taken the clause out of context, you would probably have been able to understand my implication that even if a more restrictive possiblity (supermajority) is not present, it is the most minimal threshhold that determines whether or not consent is is present. To assert that "I have met the minimal requirements of the definition of consent, but yet I have not consented" is a non-sequitur.


Bzzt. Different straw man, same presumptions. Where have I said that folks "can't apply interpretations to the text of the Constitution"? I am merely saying that those interpretations have to be reasonable and relatively direct without drawing conclusions that are way off topic and bear the weight of law just as if they had been enacted by Congress. Some have talked about a "textualist" position as opposed to strict constructionism. If strict constructionism means what you say it means, I'm obviously not one.


Well, that particular quote constitutes an easily verifiable observation, but I certainly don't begrudge people their interpretations of the text, and I certainly don't withhold my own. I imagine a strict constructionist would even have to agree that where the Constitution says the Court is supposed to interpret the Constitution, it means the Court is supposed to interpret the Constitution-- but not being a strict constructionist myself, I wouldn't know. It seems the only disagreement is to what degree the interpretation should be allowed to stray from the straightforward, textually verifiable meaning of the Constitution. That's a common point of contention in most forms of interpretation and translation, whether one is talking about applying a general rule to a specific situation, translating a document from one language to another, or porting software from one platform to another. In general, the truer you can stay to the original the better, within reason. Political preferences are not good enough reason to stray too far from the Constitution.



Absolutely, yet you seem to imply that's it's okay to require a supermajority where the Constitution only requires consent, the conditions for which can be met with a simple majority or even silently under the right conditions.

If consent were ever construed so as to allow a mandate for a supermajority, it would result in the transfer of power from the majority to the minority, a transfer of power that the framers were careful to explicitly detail in situtations where they felt is was warranted. The Constitution grants to the states all governmental powers not otherwise discussed in the Constitution. It is an explicitly minimalist document intended to conserve as much power for the People as possible and to grant to government only those powers the People believe are absolutely necessary for the it to reasonably function.

Consent is present when its minimal requirements are met. In situations where consent can ever be given without a supermajority, then it can always be given without a supermajority so long as one of the lesser requirements are met.



Can the Supreme Court interpret the Constitution to mandate that we all eat spinach on Thursdays? There's nothing in the Constitution saying it can't! The "general welfare" clause could be loosely interpreted to mean that anything the government thinks is healthy for the People can be forced upon them by law. There, all we need now is the ACLU to conjure up a case for us, the Supreme Court can issue its opinion, and everyone will eat spinach or go to jail.

But should such loose interpretations really be allowed, or should we make it more difficult to interpret the Constitution in such a way that forces us all to eat spinach on Thursdays-- perhaps by making all judicial power-grabs sublect to a 2/3 supermajority override, or Constitutional amendment, we can protect ourselves from the Big Spinach special interests.

We all benefit when we require power grabs to be authorized by the Constitution or at least protected by a more comprehensive system of checks and balances. If you assume that the Supreme Court should just willy-nilly assume any power over the People that it so desires and can orchestrate a Court case for, then you will probably have a difficult time understanding the logic of assuming the Constitution actually limits the power of government and that all of its wording fits within that framework.


Um, I think you're trying a little to hard to read between the lines. I agree that the filibuster is empowered by the senate's authorization to make it's own rules. I have repeatedly said I do not have any problem with the Senate making its own rules. The problem I have is with the Senate making rules that tend to contradict the Constitution. Earlier, you mentioned there must be a hierarchy of law-- the Senate rules, although authorized by the Constitution, are still subject to the Constitution, or else there would be nothing wrong with the Senate routinely violating the Constitution on grounds that the Constitution empowers them to set their own rules. Because the Senate rules are subject to the Constitution, they become unconstitutional when they violate other measures of the Constitution.

For example, could the Senate pass a rule saying that they could override a Presidential Veto with a simple majority in the event they couldn't muster a 2/3 majority. Theoretically, yes, but wouldn't such a rule be unconstitutional? If it is unconstitutional for the Senate to lower a threshhold from a Constitutionally-specified supermajority to simple consent, then why would it not be unconstitutional to do the reverse via a filibuster? You can't have it both ways-- either lowering and raising a voting threshhold are both unconstitutional, or they are both constitutional, assuming the Constitution is actually worded in a way that makes any sense at all.



Nope. If you'll go back and read my posts, what I said was that I don't mind intermediate extraconstitutional supermajorities so long as they do not inevitably result in contradicting the voting threshholds in the Constitution-- a temporary filibuster with a 3/5 cloture for a few days or months of the session after which point a majority cloture would suffice would not be a problem to me, because at some point, the Senate would eventually get around to simple consent, approval and majority rule as discussed in the constitution; and a vote could not be delayed indefinitely without eventually allowing the minimal requirements of consent or approval to suffice.

The only reasonable reasons for a non-temporary supermajority that I see right now are the ones currenly empowered in the Constitution, plus an amendment to allow a supermajority of Congress to balance Judicial Review-- all for structural reasons that probably define the category of "when a matter cannot be readily reversed by normal democratic processes," but that phrase is not mine and is too generalized for my taste, so I wouldn't defend it if it is attacked, and just because someone else considers a different situation difficult to reverse, I wouldn't automatically add that situation to my list of reasonable reasons for mandating a supermajority.

Well, Jack22, I must say, you certainly have a way with words. I can plow through Supreme Court decisions and IRS regulations more easily than I can navigate your prose. I therefore fear that it is impossible for us to come to grips with this issue, and shall confine myself to the simplest, most difficult-to-confuse matters.

Yes. Nor does "consent" imply an obviation of a supermajority. The concept of consent has no bearing whatever on the means used to obtain that consent. Use of that word is therefore irrelevant to the discussion.


Your statement has got to set some kind of record for convoluted prose.


Yes, if at least five members of the Supreme Court went stark raving bonkers, that could happen. Of course, if the President went stark raving bonkers, we could find ourselves in a nuclear war, which would be a lot worse than eating spinach on Thursdays!


You say that you are willing to accept the Constitution's authorization for the Senate to make its own rules -- so long as those rules don't violate the Constitution. But the Constitution applies only one restriction to the rules the Senate can make: a 2/3 supermajority to eject a member. The Constitution doesn't apply any other restrictions -- so how can the Senate violate restrictions that don't exist? You're cutting bits and pieces of the Constitution from one place and pasting them into another. That's not correct.


Theoretically, no, they couldn't -- because the Constitution clearly states that a 2/3 supermajority is required to overturn a veto. You seem to note that point in your next statement, although you again confuse "consent" with "simple majority".


Because the former is specified by the Constitution and the latter is not specified by the Constitution.


OK, we're getting back on topic. In the first place, the mind boggles at the phrase "intermediate extraconstitutional supermajorities". I think you mean "requirements for supermajorities that are not specified by the Constitution and are only temporary in effect". I'll proceed on that assumption. So you are saying that you approve of the supermajority requirements of cloture, so long as the filibuster merely slows things down, but you disapprove of a supermajority requirement for cloture if the filibuster actually stops the final decision. It seems to me that this constitutes nothing less than the elimination of the filibuster, as it makes it possible for a Senator to use the filibuster to make a symbolic demonstration against an action, but not an effective weapon against the action.
So, the only situations in which a supermajority is justified as a way of making final decisions, in your thinking, are those specified by the Constitution?

Me, too. Consent is consent. Supermajority is supermajority. A supermajority is one means of consent. Consent does not require a supermajority because as soon as you have a simple majority, you have consent. The need to lead one through what those four sentences mean is rather tiring. Once the simple and obvious are rejected, there is nowhere to go but the increasingly complex and oblique. But I'm a trooper-- I'll make one last try.


Only if the Constitution is irrelevant to the discussion. I say a supermajority cannot be required where the Constitution mandates consent, because consent is fulfilled by majority. You disagree. Fine. But that doesn't mean I'm off topic.


You rejected simplicity and repeatedly twisted my words around-- seemed like what you wanted, I went with it.



So I assume by "stark raving bonkers" you would admit that there is a case where interpreting the Constitution too loosely can be a bad thing. But the same mechanism that allows the "stark raving bonkers" scenario is the one that allows the Constitution to interpret "consent" as "supermajority" rather than as "consent." Do you not see an inherent problem there? The alternatives I propose are not much different that what we already have in place, yet they preclude the "stark raving bonkers" scenario. Empowered by that mechanism which allows "consent" to mean "supermajority", our current system allows a "stark raving bonkers" scenario without any recourse. One way seems preferable to the other, but then maybe I'm just


Everywhere the constitution mentions how Congress votes (veto override, amending the constitution, etc.), restrictions are placed on how the Senate votes. I apologize for continually stating near-tautologies, but I don't really understand why you believe Senate rules should be allowed to supercede the rest of the Constitution's provisions concerning voting.


The Constitution means something when it says "consent." Some may think consent means whatever the Senate rules or the Supreme Court says it means in defiance of all logic.

The Senate has already interpreted "consent" to mean "except when a Senator wants to make passage more difficult, when we mandate a supermajority"-- if that's valid, what's stopping them from interpreting supermajority references to "except when a Senator wants to make passage easier, when we mandate that a simple majority is sufficient." If the Constitution didn't get in the way of the former, the Constitution doesn't get in the way of the latter.


Such is our disagreement.


More or less. Governmental powers (weapons) must be granted through the Constitution if they are to be wielded in such a way as to override Constitutional powers. A filibuster could be more than symbolic if it effectively delayed a vote long enough to change some minds.


Yes-- including an amendment to balance Judicial Review with a 2/3 supermajority in Congress, as I stated previously.

You are right there...that's why the framers of the Constitution created something so brilliant as to address the fact that while it takes awhile to pass good laws, it also makes it more difficult to pass bad laws. Brilliant!

One question, what makes the conservatives believe that the judiciary is abusing their power? Is it only because the Republican leadership tells you that they are? Or have you actually looked at the cases in question and determined for yourself that they are in fact overabusing their power.

OK, Jack22, at least I understand one factor in our disagreement: throughout this entire discussion, you have equated "consent" with "simple majority". This is of course incorrect; here's a definition I grabbed out of then nearest dictionary:

1. agreement; accord of minds; concord
2. voluntary allowance or acceptance of something done or proposed; permission; approval; compliance; acquiescence.
3. agreement; coherence; correspondence in parts, qualities, or operations
4. in physiology, sympathy
5. in law, deliberate concurrence in the terms of a contract or agreement, of such a nature as to bind the party consenting

As you can see, there is nothing here that applies to method by which consent is obtained, and certainly nothing about simple majority versus supermajority. But your misunderstanding of the term "consent" does explain why you have presented such apparently perverse arguments.

OK, so now we can get to the interesting part: what is the underlying rationale you are using with regard to the desirability of requiring supermajorities? You concede the requirements in the Constitution, and you add one more requirement for a supermajority -- what's the common thread? What's the underlying principle on which you rely?

I never equated consent with simple majority, I have consistently asserted that a simple majority is sufficient to indicate consent. A nuance to some, a nuissance to others.



You don't think I understand consent, I don't think you understand consent. Fine. Why get so personal, Eras? I could honestly point out that your penchant for the straw man fallacy and word-twisting inability to understand the simplest of concepts is now legendary-- but that might not be very constructive, so I won't do it.



As I said in my first post, the structure of government. I suppose now you'll want to get into a word-twisting competition on what "structure" is.

Structure is the main topic of the Constitution-- when it sets up a separation of powers, the nature of Congress, the Court, and the Presidency, that's structure. When it describes a system of checks and balances, that's structure. When it talks about how Amendments can happen, how government officials can be elected, appointed or removed, that's all structure.

Judicial Review, although not in the Constitution, has become a Constitution-level structural power because it allows one branch of government to overrule the Constititutional power of another branch of government-- Judicial Review is a check on the legislative power of Congress, but without a corresponding balance. How should it be balanced? The Constitution already structures government to include the veto as a similar Presidential check on the legislative power of Congress, and prescribes a form of supermajority balance against an out-of-control President. Thus, a supermajority balance against Judicial Review arises out of the desire for a consistent structure of government.

As I have also said in a previous post with regard to this question, I believe the issue of whether the decision can be easily reversed by democratic means might factor into structural decisions-- but in general a supermajority is reserved for requiring a higher level of certainty as a check against overruling a democratic process or a Constitutional power of another branch of government when a simple majority has already been tried and overruled (or in need of being overruled).

Restating another answer, supermajorities effectively take power away from the majority and hand it over to the people holding a unpopular beliefs-- as a result, supermajorities are by nature counter-democratic. The need to counter a democratic process (majority rule) arises whenever structuring a government like ours that has a system of checks and balances. When not dealing directly with Constitutional issues that specifically require a supermajority, Congress should abide by the practice of majority rule.

One more thing about the filibuster-- as originally practiced, the filibuster required the filibustering Senator to stay awake and talking. As soon as a filibustering senator stopped talking, the filibuster was over and no cloture vote was necessary (in fact, cloture itself is a relatively recent concept, introduced in 1917, revised in 1949, 1959 and 1960). The longest filibuster in history was Strom Thurmond's 24-hour tirade against the Civil Rights Act of 1964, which was passed as soon as Thurmond stopped talking. There was an inherent limitation to a filibuster by the physical ability of a senator to keep talking. However, the delay often killed measures, anyway.

It is only recently that "procedural filibusters" have been allowed to block measures in perpetuity without actually requring any actual floor debate, so that there really aren't any actual filibusters any more, only cloture votes. I don't mind the old-style filibusters, it's the procedural filibusters that are so insidious. According to Daniel Lazare's 1997 The Frozen Republic, there were more filibusters in the 1991-92 session than in the entire 19th century. That would be fine if they were of the 24-hour variety, but now that filibusters last forever, they have effectively transformed the senate from a majority-rule institution to one ruled by those holding the most unpopular ideas-- hardly a prime example of democracy at work.

(BTW-- Don't bother trying to turn Lazare into another straw man for me-- I don't agree with most of his conclusions.)

edited for clarity

First, I suggest we continue the discussion of judicial review in the topic that I created for that discussion.


Not quite. A supermajority requirement does not "take power away" from the majority in the black and white sense -- it reduces the power available to the majority. Specifically, it prevents the majority from imposing an extreme measure upon the minority. The majority retains the power to enact measures that don't inflame the minority. So we're talking about a reduction of power, not an elimination of power.

Second, supermajority rules most certainly do not "hand power" over to "people holding unpopular beliefs". Supermajority rules enable minorities to block action, but not to take action. They are intrinsically conservative. They confer a very limited kind of power to the minority. Again, we shouldn't talk in black and white terms of supermajority rules stripping the majority of all power and granting total power to the minority. They take away the most extreme exercises of power from the majority and give the minority the power to prevent the most extreme actions of the majority.

Lastly, I'd like to focus on this statement:

This is vague. What, precisely, do you mean by "Constitutional issues"? Do you mean only those matters that are specified by the Constitution to require supermajorities?

We're saying the same thing using different words-- talking about six of one and half-dozen of another. Regardless of how you spin it or candy-coat it, requiring a supermajority prevents normal majority rule and transfers their power to those holding the unpopular ideas-- power that they would not otherwise have. When that transfer of power happens outside of the situations that the Constitution allows it, it is unconstitutional.



I'm sorry, this is a quote from an earlier revision of that post... here's the current version: "When not dealing directly with Constitutional issues that specifically require a supermajority, Congress should abide by the practice of majority rule."

There are dozens of threads discussing Judicial Review. In this discussion, I have limited my mention of Judicial Review to direct answers of your question for this thread about when I believe supermajorities are necessary, and I will continue to do so.

I've read your thread about Judicial Review. It is on a topic I'm not interested in discussing, concerning those who believe Judicial Review is usually bad. Judicial Review is a good thing when not abused, as it provides a useful check on Congress, but a check that needs to be balanced for structural consistency, probably by a supermajority similar to the veto override.

As I don't really have any major beef with Judicial Review other than the structural inconsistency of its lack of a supermajority override, I don't see that I would have anything useful to contribute to the other thread, and my belief that it needs a supermajority override is a precise answer to the question for debate in this thread.

Good. So we have Jack22's preferred Rule of Congressional Procedure: "In all votes not otherwise specified by the Constitution as requiring supermajorities, the Congress shall accept simple majority votes as determinative."

Now let's just suppose that the Senate adopts, in violation of your rule, a rule that specifies that supermajority votes are required for cloture. You sue and take the case to the Supreme Court. Counsel for the Senate quotes Article I, Section 5 of the Constitution: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the concurrence of two-thirds, expel a Member." He argues this sentence explicitly declares that the Senate may determine its rules of procedure, and that cloture rules are rules of procedure. Therefore, the Senate may determine its own cloture rules.

How do you respond?

With the URL of this thread.

A self-referential response! The Cretan says, "All Cretans are liars."