The Framers Vs. Senator Frist

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Mr. Kyvig is Distinguished Research Professor at Northern Illinois University and a recipient of the Bancroft Prize for Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995. He is a writer for the History News Service.

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Conservatives portray the men who framed the Constitution as repositories of democratic wisdom. If that's what they believe, they ought at least be faithful to one of the Framers' core principles. But they aren't doing so. Instead, ignoring that principle, they're rushing headlong to impose a radical reform on the United States Senate.

Senate Republicans, lusting to install a few judges who can only be confirmed by slender partisan majorities, are ignoring a principle in which James Madison and his contemporaries deeply believed. Senate Republican leader Bill Frist is advocating a different approach to representative democracy from the one the Framers embraced.

The men who gathered in Philadelphia in 1787 thought that the more enduring the result of a democratic choice, the greater the need for widespread consensus to give it legitimacy. For more than two hundred years the United States has applied that wisdom to lifetime judicial appointments as well as other decisions with lasting impact.

Now Frist, aided by Vice President Dick Cheney and other Republicans, seeks to change Senate rules on judicial nominations. Their proposed reform, as the Framers would have immediately understood, would institute a form of democracy far less prudent than what the nation has long enjoyed.

Majority preference is at the core of self-government when choices can be confirmed or reversed on a frequent basis. In our representative form of democracy, one-half plus one determine elections and routine legislative policy. If majority sentiment changes, these choices can be overturned. But as the enduring impact of a decision increases, so too does the need for greater agreement that it represents a good choice. Broad support is needed for decisions we're stuck with.

The Framers weren't comfortable with slender majorities when the nation's representatives needed to make a decision that would bind the nation for a long time. They believed that a higher degree of democratic consensus was essential to obligate the government for an extended period. The longer the duration of the democratic commitment, the greater the degree of consensus they demanded.

For instance, treaties with foreign countries obligate the nation far into the future. They override contrary federal and state legislation and, once adopted, are difficult to change. The Framers sensibly required treaties to win the approval of two-thirds of the Senate before taking effect.

Impeaching a duly chosen public official also has enduring impact. Impeachment overturns normal democratic selection practices because it disgraces and removes from power properly chosen officials. To carry out such a drastic action, the Constitution requires both majority approval by the House of Representatives and a two-thirds vote by the Senate. A simple congressional majority won't do for such consequential business.

Setting fundamental and permanent rules of government requires an even higher degree of democratic consensus. More than two-thirds of the original states, 9 of 13, had to agree for the Constitution to take effect.

While the ability to alter the Constitution is an essential component of democratic self-government, an easily changeable constitution would be dangerously unstable. The Framers were not content with a constitutional amendment endorsed by two-thirds of both houses of Congress. They also insisted that all amendments be ratified by three-fourths of the states. Overwhelming democratic consensus for permanent change in the fundamental law has become a hallmark of American constitutional democracy.

A judicial appointment may affect laws for decades to come. It's consistent with the American constitutional tradition to require more than a simple majority for a congressional decision to grant lifetime tenure to a judge. Most judicial appointments over the years have in fact won such broad endorsement from the Senate. Even in the current contentious era, the vast majority of judicial nominations have been confirmed overwhelmingly.

When presidents select, and the Senate confirms, judges who are widely acceptable, respect for the federal judiciary is enhanced. To now abandon a system that has served the nation well, as Senator Frist and his allies rashly propose, imperils the American tradition of consensual democracy.

The Senate's filibuster rule simply provides that when a full 40 percent of the members are not in agreement with the majority they can delay action. In other words, 60 percent of the Senate must agree to confirm a judge if there is substantial objection to the nomination. Sixty percent agreement is not an impossibly high threshold, not nearly as high as a treaty ratification, impeachment or constitutional amendment. But a 60-percent consensus does assure that a decision irreversible for decades to come has more support than the most slender democratic majority of one half plus one.

The Frist proposal should be seen for the corrosive measure that it is and be soundly defeated. It has grave consequences for our democratic system. In the long run, what matters for the United States is not whether a few questionable judicial nominees are approved or blocked. What matters is whether the longest serving officials in our constitutional system are confirmed with an appropriately high degree of democratic consensus to validate their judicial authority.

This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.

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Nathaniel Brian Bates - 5/9/2005

There is another issue at work here. The Republicans on the Bench killed Terri, not "liberal" Judges. This is the historical truth, starting with Judge Greer himself.

The Fourteenth Amendment was very clear in this case, yet it was BOTH Parties that failed to act correctly.

Tomas Kaldor - 5/8/2005

We have it advanced that the Founders would oppose a change of rules that eliminate the filibuster. Prof. Kyvig offers no text in support of the notion, and Mr. Mosche offers remarks by Madison, as though these fully informed the Constitution, or should. Madison, in fact, did not write the Constitution, and the Federalist Papers are not canonical interpretations of their content. No amount of repeating the assertion that Madison was the Father of the Constitution will transform Madison's views into the Founders' views, not into Constitutional text or norms. Moreover, the Federalist Papers were little published in the South, and only in part, and late in the ratification process.

We are faced with several questions. Can we attribute a general view to the Framers? Can we attribute a general view of the Framers on the basis of Madison's writings? And can we interpret the Constitution solely on the basis of Madison's writings? The answers are No, No, and No.

A separate question is whether it is wise to eliminate the filibuster rule. Opinions will differ, of course. As one professor has pointed out, at the very beginning of the Senate in 1789, there was no provision for a filibuster, as a mere majority vote was necessary to close debate. That was the rule adopted by the generation of the Founders. It was changed in 1806, and again later, and still again later, when reduced further, and then finally reduced to the 60 vote rule in 1975. On that occasion, Sen. Kennedy condemned the filibuster as anti-democratic.

One may offer reasons for and against the elimination of the filibuster, but the filibuster was a dead letter, avoided by a mere majority vote, when the Senate first took up its business in 1789, when the generation of the Founders was fresh from ratification of the Constitution.

Marc "Adam Moshe" Bacharach - 5/3/2005

A very true point.

Marc A. Comtois - 5/3/2005

Ah. But we err when we try to apply logic to politics.

Marc "Adam Moshe" Bacharach - 5/3/2005

I don't believe that the procedure "necessarily" leads to the slippery slope, but I am at a loss to figure out what logic would wish away the one but retain it for the others.

Marc A. Comtois - 5/3/2005

Thanks for the answers. However, I must confess that I don't see how a narrow rules change stating that executive and judicial nominees can't be filibustered necessarily leads to an end to the filibuster. I guess one could counter with the "slippery slope" argument. Anyway, in the end, I think you're right about one thing: This is a political pi**ing match. I don't think anyone but the base of each party really cares that much. By the time the mid-term elections roll around, most "average" voters will have forgotten about this and chalk it up to "politics as usual."

Marc "Adam Moshe" Bacharach - 5/2/2005

You raise many excellent points in your post, and I hope I can do some of them justice.

1) “what of later Senate traditions?”

To me, those latter Senate traditions fall under Article I, section 5, which says quite simply:
"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member."

My claims about the distrust the Founders had on majority-rule was simply address the common criticism of late that the filibuster should be eliminated simply because it is counter-majoritarian. The filibuster is, in my view, consistent with the principles behind the Constitution and its long-standing history in Senate history indicates to me that such a time-honored tradition should be abolished for near-sighted partisan reasons.

2) “In other words, at what point, politically, do the rights of the minority get rendered useless?”

Excellent question! Ultimately, at the end of the day, no system could ever call itself “democratic” if the majority simply never got its way. I can assure you that if Democratic Senators’ constituents were vocally opposed to what they were doing, they would defect and join the Republicans. However, since the Democratic Senators represent more people than Republican Senators, I am not sure that what we are seeing now really represents “the minority.” Public opinion polls currently favor the Democrats as well.

To answer your question on this issue specifically, the Republicans could get what they want the following ways:
a- Bush could actually nominate someone (ANYONE) else other than simply spite the Democrats by re-nominating the same unacceptable people. In other words, actually compromise rather than bully, or
b- The Republicans could garner enough votes from Democrats to overrun any filibuster

The reality is that much of the nation could not care less about what happens in this case, and I predict that it will have no effect on how they vote in November, making this entire debate an appeal to each party’s base. If Americans truly cared enough to vote on it, any attempts to filibuster a judicial nominee would be abandoned in the face of public opposition. Remember, this is not a case of 10 people obstructing 10,000. It is the case of a divided nation more spiteful and partisan than ever battling it out in the Senate.

3) “what is to stop future senate minorities from taking the next step, based on precedence, from applying the "new" definition or "right" to filibuster to any, or all, Presidential nominations?”

My answer would be, the same thing that stops Senators from filibustering any or all legislation, or any and all nominations. A filibuster is not an easy thing to do. It puts the spotlight on the individual Senators engaging in it, and inevitably leads to a reputation of obstruction. Remember, the filibuster is more a political tool than a legislative one. Its prevalence will depend entirely on how people view it. Remember, filibusters were used in the past for far more consequential reasons than a few judges out of hundreds. Then, as now, it was a political tool.

Right now, it seems, the Democrats are winning the game, as it has made Republicans look like they will change Senate tradition for partisan reasons and it has put light on what appears to be Bush’s stubbornness.

If the Republicans overturn the filibuster, and the Democrats retaliate by shutting down government, I suspect it is they who will loose, as people will blame the Democrats for being bitter and petty. That is my speculation, in any event.

Marc A. Comtois - 5/2/2005

Without being ideologically driven and in the spirit of keeping the debate going, a few questions prompted by these two statements:

1) "No one is arguing that the Senate CAN'T change the rules. The argument is that they SHOULDN'T."

2) "Remember, minorities cannot, and were not designed to dictate policy, or initiate legislation. They can, and were designed to, obstruct and PREVENT policies from being enacted. The difference between the two are fundamental."

First, a technical question: The selections from the Federalist Papers offer some insight into the behind-the-scenes thinking of the Founders, but if we are to point to these "originalist" explanations, what of later Senate traditions? These were based on equally viable interpretations of differenct sections of the Constitution and other documents that give the Executive the right to nominate and the Senate right to "advise and consent" as it sees fit, including changing rules if it deems proper? Thus, if the Senate majority changes the rules, as they have done before, and if the American voters believe that they shouldn't have, then the voters have the power to vote out the majority, though it would be difficult. But what if the opposite happens? What if the filibuster holds and Democrats are perceived as quashing nominations by misusing the filibuster (much like happened with Sen. Daschle) and the voters turn them out in the next election, resulting in a clear 2/3s majority for the Republicans? Do the aforementioned Federalist Papers address the rights of the minority in such cases? In other words, at what point, politically, do the rights of the minority get rendered useless?

Secondly, does nominating individuals to the judiciary or executive branch positions equate to policy? If one is to argue that, collectively, these nominations are essentially the implementation of policy (a "radical judicial agenda," for instance), then what is to stop future senate minorities from taking the next step, based on precedence, from applying the "new" definition or "right" to filibuster to any, or all, Presidential nominations? Is it proper to equate "policy" with the individuals who may implement or adhere or, more broadly, tend to sympathize with, Presidential policy?

Again, I'm only mildly playing Devil's advocate here. I'm genuinely curious what others think.

Marc "Adam Moshe" Bacharach - 5/2/2005

They didn't have to.

Article I, section 5:
"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."

No one is arguing that the Senate CAN'T change the rules. The argument is that they SHOULDN'T. Since much of the debate today seems to revolve around the filibuster's anti-majoritarian nature, it is worth noting, as this article nicely does, that our Constitution system was not designed to be a majority-rules system, quite the opposite.

If I may offer my own examples to supplement those of the articles:

Read carefully the following words of the father of Constitution, whose beliefs and ideology were the foundation of this country and note the fear of majority tyranny:

“If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.”
-- Federalist #10

Thus wrote James Madison, one of his MANY condemnations of democracy and majority rule.

Here are some other gems he left us with:

“If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majoritygthat is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.” (Fed. 51)

Here he addresses the Senate specifically:

“There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution.” (Fed. 51).

There are so many more examples of the Founders distrust of majority-rule democracy, I don’t even know where to end, but I think you get the idea. This is what made American government distinct and successful, this is what Washington, Jefferson, Jackson, Lincoln, Roosevelt, and Reagan all swore to protect, this is what our system is.

Remember, minorities cannot, and were not designed to dictate policy, or initiate legislation. They can, and were designed to, obstruct and PREVENT policies from being enacted. The difference between the two are fundamental.

Neal Jonathan Lavon - 5/2/2005

David Kywig's article is a nice try but if the Framers truly wanted judges confirmed by 60 percent of the senators, they would have said so the same way they did with treaties, etc.

Arnold Shcherban - 5/1/2005

The fascination of the American intellectuals with the Framers of the US Constitution and socio-political system, in general more than 200 years after it was established has become purely dogmatic and ideological.
Nominally, they cannot reject the reality of enormous,
in scale and character, changes occured since the end of
the 18th century and moreover, when needed, use them very skilfully, but on the socio-ideological level they, as the worst conservatives in the worst sense of the latter term hang on the many principles and ideas behind the
Framers design that became absolutely obsolete.
Doing this they not only create great obstacles to the development of the American intellectual thought in the socio-historic frame, but to the progress of the American society as a whole.
This not the only, and perhaps not the main reason behind the backwardness of the American conservatism comparing
the respective ones in other democratic countries of the world, but certainly a prominent one.
One of the major causes of the obsolete perception of history and refusal to practically acknowledge the changes mentioned above is the religious faith.
The same way as religion refuses to accept changes in the human perception of the world, nature and history based on the inborn intellectual curiosity of men and therefore, constantly attempts to take us back into medieval ages, the mainstream ideologically-religious adepts of the obsolete and miserably failed socio-economic and political practices perpertually try to revive and accomodate them in the completely new socio-economic atmosphere (and by all means keep those that still exist).
As one example let me instroduce one of the most surreal and ridiculous argumentation I have ever heard.
The issue is gun ownership and gun control.
We are continiuosly reminded that the main justification for citizens bearing and posessing firearms is the protection from a possibility of a bad or, God forbid, evil government. This justification might have been valid at the times when the government had no more military and police power than a large gang of criminals (not mentioning already the enormous means of official propaganda and consent creation and other pertaining means of societal influence), but I yet to see any well-armed citizen or group of citizens under today's or recent past US goverment prosecution who have or had any odds (say, even, as little as 0.0001%) to protect themselves using possessed firearms from the US goverment's "offense".
But as far as I'm concerned, I've never heard this kind of reality check forwarded as the argument in any debate on the issue, though it is so evidential and illustrative.
The other issues that come to mind here are social and economic justice, wealth distribution, legal system, health care, etc.