The Founding Fathers would be mortified if they were to witness the filibuster of Judge Neil Gorsuch.
I can imagine Hamilton, Madison and Jay saying, “what are these people in the Senate doing? Why did they dream up this artificial device called a ‘filibuster’? Don’t they realize it is destructive to the very nature of the democracy which we so carefully devised and envisioned? Didn’t they read what we wrote? This is not what we wanted!”
The Framers were very deliberate in expressing their intentions of how Congress should operate. They debated, but abandoned, the idea of a requiring a supermajority of two-thirds or three-fifths to pass legislation or confirm presidential appointments. It had been tried with the Articles of Confederation and produced nothing but chronic dysfunction.
So the Founders rejected the same concept for the new Constitution. They regarded it as a pernicious restraint on representative government grounded in majority rule. It would be, quite simply, undemocratic. And lead to a tyranny of the minority.
They therefore limited the supermajority imperative to just five specific circumstances: ratifying treaties, overriding presidential vetoes, expelling senators, amending the Constitution, and impeaching presidents. All other acts, by exclusion, were meant to be made by a majority vote which was regarded universally as the natural law of democracy.
These desires were spelled out in detail in The Federalist Papers, the 85 articles composed by Hamilton, Madison and Jay which serve as their defense of, and rationale for, the principles and text expressed in the Constitution itself. In Federalist 22, Alexander Hamilton derided the supermajority method by warning that “smaller numbers will overrule the greater…and destroy the energy of government.”
These writings make clear the Framers did not want a minority of Senators to have the equivalent of veto power over congressional acts, which is precisely what the filibuster rule accomplishes by giving 41 Senators the power to block legislation.
The principle of majority rule was the fundamental feature of democracy at the founding of our republic. Its practice was reflected in the many Articles within the Constitution. Any exceptions were expressly provided.
Hence, in the context of the document as a whole, the filibuster is manifestly unconstitutional. The Supreme Court said as much in 1892 when it ruled that the prerogative of each house to determine the rules of its own proceedings “cannot ignore constitutional restraints.” (U.S. v. Ballin, 144 U.S. 1)
Ignoring all this or, more likely, in complete ignorance of it, Senators began utilizing in earnest the filibuster in 1917. Their actions prompted then-President Woodrow Wilson to remark, “A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible”.
Wilson was prescient. From that point forward, the fears of the Framers came to ugly and shameful fruition. Much of the civil rights legislation in the 1950’s and 60’s was either defeated or delayed for years. So, too, were bills to outlaw workplace discrimination and gender inequality.
In the last decade, hundreds of productive bills that would surely have passed but for this tyranny of the minority have fallen victim to the filibuster. The words “obstruction, gridlock and paralysis” are now common lexicon in describing Washington, all thanks to a rule inimical to the Founders’ intent.
The filibuster is primarily to blame for the palpable anger toward lawmakers and the widespread loss of confidence in our government. But the damage can be repaired and faith restored, though it will demand courage in casting aside the pettiness of partisan politics so engrained in the halls of Congress.
The upper house has the constitutional authority and the moral obligation to rid itself of this contrived parliamentary scourge, once and for all, by a majority vote. Not just for a presidential nomination to the Supreme Court, as the Senate finally did on Thursday, but for all legislation.
If Senators bear any allegiance to the history of our democratic republic or fidelity to the hard work of the wise men who risked their lives to create the vital documents upon which future generations could live and prosper, then they will cast that vote.
Here’s hoping that the Gorsuch filibuster drama may serve as the impetus for the kind of permanent and constructive change Washington so desperately needs.
It is time to say goodbye to the rule forever… and for everything.
Gregg Jarrett is a Fox News Anchor and former defense attorney.