Hertzberg on the Constitutionality of the Filibuster


Avi Zenilman points to an August 1994 New Yorker article by Hendrick Hertzberg making the constitutional case against the filibuster:

It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it, any more than it occurred to them to specify that senators should not dunk each other’s powdered wigs in the inkwells. For, as the Supreme Court noted in 1892, “the general rule of all parliamentary bodies” that “when a majority is present, the act of a majority of the quorum is the act of the body…has been the rule for all time.”…. Unfortunately, the Court, which is extremely shy of challenging the internal workings of Congress, is not about to outlaw filibusters.

I would just want to be clear about the scope of the “unfortunately.” I do think the existence of the filibuster is unfortunate, and therefore it’s unfortunate that it doesn’t get somehow stricken from afar. But I think the Supreme Court’s reluctance to poke into the internal deliberations of Congress is pretty well-founded; this strikes me as a good rule that happens to have a bad result in this case. Ultimately, the people responsible for making congress work are the members of congress. The unfortunate fact of the matter is that senators of both parties overwhelmingly favor nutty institutions like the filibuster and the even-more-ridiculous “holds.” Both practices advance the interests of individual senators, and most senators care more about their personal power and prerogatives than they do about the welfare of the country or the world.