Commentary: Carper and Coons must choose between filibuster rule and Constitution

The notion that the U.S. Senate — which at one time was called “the world’s greatest deliberative body” but in recent years has become virtually broken and dysfunctional — would somehow become the only legislative body in the world to require a supermajority, is an insult to the men who wrote the Constitution and an assault on the American people, who need a government that can work to solve the immense problems facing us in the 21st century and restore our position as a country that shows by our example that a democratic republic is the best form of government ever devised.”

Sens. Tom Carper and Chris Coons, both D-Del., both of whom I have voted for each time that they have run for their offices, have, upon taking their seats in that body, sworn an oath, in which they have pledged to “support and defend the Constitution of the United States” and to “bear true faith and allegiance to the same.” I believe that, to honor that oath, they must support a change in Senate rules to abolish any remnant of the filibuster, a requirement for a supermajority (presently 60 votes out the total membership of 100) to approve any legislation.

This rule, in my judgment, patently violates the Constitution that they have sworn to uphold.

George Washington, James Madison, Alexander Hamilton and any other members of the 1787 convention that wrote the Constitution would, I am certain, be stunned and appalled to learn that the United States Senate, the body that they created, has somehow become the only legislature in the world that requires more than a majority vote to do its work. One of the biggest reasons they had come to Philadelphia in the first place was that the Articles of Confederation, our first system of government, required a supermajority of nine states out of 13 in the Congress to pass laws, and that had proven to be a fatal flaw that had helped make the system almost dysfunctional.

Mr. Madison, especially, was upset with the notion that his state, Virginia (which had the largest population at the time) would have the same number of votes in the Senate that Delaware and other much smaller states had. As Madison, Washington and other large-state citizens saw it, the notion of equal votes for each state in the Senate was already bad enough, making it possible for the minority of the American people to rule over the majority. They would have almost surely refused to accept the “Great Compromise” that allowed for equality of the states in the Senate if they had thought for one second that the Senate would also one day be turned into another version of the Articles of Confederation Congress, in which even the majority of votes would not be enough to get things accomplished. Yet, that is what has happened.

I believe the framers of the Constitution are rolling in their graves. They were generally wise and experienced men, who understood a lot about how government worked and the practicalities of politics. They were not naive, and I refuse to accept the idea that they would have created a system of government that defied both their experience and common sense and was almost destined to fail. Simply put, I believe that they would consider the filibuster rule to be both a violation of the document that they signed and, moreover, patently ridiculous.

You can see clear evidence for this in The Federalist Papers, the greatest source for the “original intent” of the two most thoughtful framers, Madison and Hamilton. In Federalist 22, Hamilton, writing about the failure of the Articles of Confederation, declared that “its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.” While Madison, in Federalist 62, speaks of majority rule as an unquestioned axiom: “(Under the proposed Constitution,) no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.”

But the best evidence is in the Constitution itself. It is clear that the framers of that document were self-evidently in favor of the Senate operating under majority rules, as they carefully specified the instances in which more than a majority would be required! These are as follows:

• Article 1, Section 3: In impeachments, “no person shall be convicted without the Concurrence of two thirds of the Members present.”
• Article 1, Section 5: “Each House, may ... with the Concurrence of two thirds, expel a Member.”
• Article 1, Section 7: To override presidential vetoes, “two thirds of that House shall agree to pass the Bill.” (This refers to both houses and makes it obvious that a simple majority was sufficient to pass the bill before it was sent to the president.)
• Article 2, Section 2: Treaties negotiated by the president shall become law “provided two thirds of the Senators present concur.”
• Article 5: Constitutional amendments shall be proposed “whenever two thirds of both Houses shall deem it necessary.”

In other parts of the Constitution, majority rule in both Houses is treated as an obvious given:

• Article 1, Section 5: “A Majority of each (House) shall constitute a Quorum to do Business.”
• Article 2, Section 2: The president can make appointments to federal offices “by and with the Advice and Consent of the Senate” (as opposed to the two-thirds required for treaties).

The clinching piece of evidence is in Article 1, Section 3: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” With the Senate operating as the Founders intended, John Adams, the first vice president, cast 29 tiebreaking votes in eight years; John C. Calhoun, who was vice president over a quarter-century later, cast 31 tiebreaking votes in eight years.

The notion that the U.S. Senate — which at one time was called “the world’s greatest deliberative body” but in recent years has become virtually broken and dysfunctional — would somehow become the only legislative body in the world to require a supermajority, is an insult to the men who wrote the Constitution and an assault on the American people, who need a government that can work to solve the immense problems facing us in the 21st century and restore our position as a country that shows by our example that a democratic republic is the best form of government ever devised.

One does not need to go into the sordid history of the filibuster rule — which started as a parliamentary oversight, then was taken up by defenders of slavery and later by opponents of anti-lynching and civil rights bills, and is truly “a relic of Jim Crow” — to demand that this rule be forever buried, so that the U.S. Senate can return to its role as a thoughtful legislative body.

You can simply demand that our two senators, as well as the other 98, honor their oath to the U.S. Constitution.

Daniel Pritchett lives in Dover.