The Filibuster is Unconstitutional
Or, The Spaghettification of American Democracy
Our Constitution does not contain within it a complete and explicit set of rules for its own interpretation. It couldn’t. That’s because any set of rules powerful enough to cover all practical contingencies would also contain ambiguities or outright inconsistencies, thus necessitating a set of meta-rules, which would in turn require a set of meta-meta-rules, and so on ad infinitum. This is especially true where the document in question, like our Constitution, is itself a set of rules that both embodies a host of often competing values, and is intended to endure long past the lives of its drafters.
Judges cannot look to the text itself to settle certain questions, but must instead rely on a body of informal rules and cultural norms handed down to us over generations. These rules and norms are what Harvard Law Professor Laurence Tribe calls The Invisible Constitution. Much as the bulk of the matter in the universe is dark matter, hidden from view but binding whole galaxies together, the bulk of what must be understood to grasp the meaning of the Constitution also lies in the spaces between the text.
Take one example: expressio unius est exclusio alterius. This Latin phrase, meaning “the express mention of one thing excludes all others,” was handed down to us from the English common law tradition, and was certainly known to the Framers at the time the Constitution was drafted. Now that document provides that “a Majority of each [House] shall constitute a Quorum to do Business…” (Art. I, Sec. 5(2)). In other words, all that is needed to pass a law is a simple majority. Certain exceptions are explicitly stated, like the two-thirds requirement for impeachment (Art. I, Sec. 3(6)), for expelling a member (Art I, Sec. 5(2)), for the overriding of a presidential veto (Art. I, Sec. 7(2)), or for the ratification of treaties (Art. II, Sec. 2(2)).
The filibuster effectively constitutes an additional exception to the general rule, but it has no explicit support in the text of the Constitution itself. Indeed, according to the rule of construction expressio unius est exclusio alterius, we must find that the filibuster violates the clear Constitutional command that a majority “shall” suffice to pass a bill.
To this argument one might raise two objections. The first is that the Constitution implicitly authorized the filibuster when it conferred on each House the authority to “determine the Rules of its own Proceedings…” (Art. I, Sec. 5(2)). The idea is that expressio unius doesn’t apply if residual language allows for the creation of more exceptions than those explicitly authorized, and that Art. 1, Sec. 5(2) contains just such residual language.
To see clearly why this argument fails, let’s return to Professor Tribe’s idea of the Invisible Constitution. In his book of the same name, he offers six models for thinking about how to construe Constitutional language in difficult cases, which he alliteratively names the Geometric, Geodesic, Global, Geological, Gravitational, and Gyroscopic. It’s the Gravitational model that I want to discuss in this article (if you’re interested in the others, you’ll have to check the book out from your local library).
Tribe’s idea is that the Constitution creates a constellation of institutions. The purpose of these institutions isn’t just the efficient administration of the state, but to provide a kind of counterweight to one another, to prevent any one institution from becoming so powerful that it effectively swallows up all the others, just as a supermassive star might collapse into a black hole, taking its neighboring stars with it. And we can extend the metaphor further, for the Framers clearly intended that the structure of government they were creating would allow the emergence of constellations of private institutions, wherein economic and cultural life would flourish. The Constitution would allow public institutions to regulate private ones so that the latter would also not grow so powerful as to threaten individual liberty.
Therefore, Tribe’s argument is that in difficult cases federal courts should be guided by this idea of maintaining a balance of institutional power across all sectors of society. Now, some might think that Tribe is just another Ivory Tower liberal trying to find justifications for judicial activism, but in fact all he has really done here is provide us with a powerful visual metaphor for another hallowed rule of legal construction. For centuries English common law courts have recognized that when they are interpreting any kind of legal document, be it a statute, contract, will, or whatever, they must interpret the document as a whole in order to give effect to all of its provisions. They must not interpret one section of a legal document in such a way as to nullify any other, for this would clearly betray its drafters’ intentions.
Indeed, Tribe’s gravitational metaphor is actually a subtle but powerful argument against judicial activism. That’s because it doesn’t just restate the ancient rule requiring courts to give effect to all of a text’s provisions. It also helps us understand why this rule is so important in the first place. If judges were not bound to respect all of the text of the Constitution or laws, if they could in fact interpret some provisions in ways that obliterated others, think how much more easily they could enshrine their own political preferences into the law.
So yes, Art. I, Sec. 5(2) does authorize the Senate to create rules for its own proceedings, but, as Chief Justice Marshall famously wrote, “we must never forget that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. 316 (1819). In other words, we must contextualize our interpretation of any one provision within the document as a whole. Here, to take the Senate’s rule-making authority to be absolute would vest that institution with powers so great they would effectively undermine the rest of the Constitution. For example, what would prevent the Senate from changing the age requirement for Senators from thirty to sixty, or from decreeing that any Senator elected three times in a row should hold his or her seat for life?
The second objection is that this whole debate centers on what legal scholars call a “non-justiciable political question.” In other words, the whole discussion is moot because in fact federal courts do not have jurisdiction to decide whether the filibuster is constitutional. But this objection can be refuted along the same lines as the first.
The political question doctrine is a self-imposed constraint on judicial authority designed to protect the separation of powers among our three branches of government. It requires courts to consider a number of factors before taking jurisdiction over a case, but most important of these is whether there has been “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker v. Carr, 369 U.S. 186 (1962).
The case of Powell v. McCormack, 395 U.S. 486 (1969), is instructive. In that case, the U.S. House passed a resolution to prevent Adam Powell, newly-elected from the 18th Congressional District of New York, from taking his seat. Powell sued, but the lawyer for the House of Representatives claimed the courts lacked jurisdiction since Art. I, Sec. 5(1) says that “Each House shall be the Judge of the… Qualifications of its own Members.” The Supreme Court disagreed. For the sake of maintaining a healthy balance of power among the coordinate branches of government, the Court opted to “resolve any ambiguity in favor of a narrow construction of the scope of Congress’ power,” since to do otherwise might empower Congress to enact rules that would undermine the people’s ability to choose their leaders freely and fairly.
And in a passage that seems tailor-made for our discussion of the filibuster, the Court had this to say: “Moreover, it would effectively nullify the Convention’s decision to require a two-third vote for expulsion…. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.”
By the same token, the Constitution does not vest in the Senate the power to deny a majority the right to pass legislation. To hold otherwise would turn the Senate into a black hole. Indeed we may justifiably say the Senate is already a black hole. In its ravenous maw the rest of government as well as our economy and civil society are being stretched to the breaking point — “spaghettified” — to use Stephen Hawking’s memorable imagery.
If American democracy is not ultimately to be crushed in its irresistible singularity, the filibuster has to die.
