On the constitutionality of the filibuster

Lessig

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The Hill has published an essay of mine, arguing that the modern filibuster is unconstitutional. There are many who have insisted as much — see, e.g., Gregory Diskant, Robert Reich, Erwin Chemerinsky & Bert Neuborne, Madeleine Polubinski, Kirk Jenkins; but see Michael Gerhardt, and this great debate between Josh Chafetz and Michael Gerhardt.

The point I emphasize in this debate is that it is the evolution of the procedure that has rendered it unconstitutional. (Adam Jentleson’s book, Kill Switch, is a brilliant account of that history.) When it was a procedure to assure members had the opportunity to speak, it was fine (if a bother). But as a procedure to effectively block the beginning of any debate, it has morphed into an effective supermajority requirement. My claim is that acting to effect a supermajority requirement in the Senate has no constitutional justification. Defending and perpetuating the supermajority requirement of the filibuster — as Sinema explicitly does (“continues to support the Senate’s 60-vote threshold”)—therefore, has no constitutional justification.

As I write, this is not a question the Supreme Court will ever resolve (Diskant’s noble effort notwithstanding). But constitutional judgment reaches beyond those the Court can utter. This is one we should repeat, often.

I’m hopeful the comments to this Medium post might continue the discussion (please don’t feed the trolls). It is a critical question to build understanding upon.

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