America's Unwritten Constitution: The Precedents and Principles We Live By (59 page)

Third, the Constitution’s text evidently incorporated this majoritarian premise, albeit by implication. Whenever a federal institution was authorized by the Constitution to make a certain decision using some principle other than simple majority rule, the exception to the (implicit) rule was specified in the document itself. For example, the text made clear that a two-thirds vote was necessary for the Senate to convict an impeachment defendant or approve a proposed treaty, or for either house to expel a member, approve a constitutional amendment, or override a presidential veto. For other actions, majority rule simply went without saying.

Several of the Constitution’s provisions prescribing supermajorities make the most sense only if we assume that majority rule was the self-evident background principle that applied in the absence of a specific clause to the contrary. Thus, Article I presupposed that each house would “pass” legislative bills by majority vote—except when trying to override
presidential vetoes, which would require a
special
supermajority. The supermajorities explicitly required for constitutional amendments likewise were designed to be
more demanding
than the simple majorities implicitly prescribed for ordinary statutes; and the Senate supermajority needed for treaty ratification was meant to erect a
higher bar
than the rule for ordinary Senate agreement to ordinary legislation—a higher bar meant to offset the absence of the House in the formal treaty-making process. Similarly, the provisions empowering each house to exclude improperly elected or constitutionally ineligible candidates were meant to operate by simple majority rule—as distinct from the
exceptional
supermajority rule that applied when a house sought to expel duly elected and fully eligible members.
³¹

But if majority rule truly went without saying, then why did the framers feel the need to specify, in Article I, section 5, that a majority of each house would constitute a quorum? The obvious answer is that state constitutions and British practice had varied widely on the quorum question, and thus,
on this special issue
, there did not exist an obvious default rule from universal usage or mathematical logic. For example, Pennsylvania set the quorum bar at two-thirds, whereas the English rule in effect since the 1640s had provided that any forty members could constitute a quorum of the House of Commons. But neither Parliament nor any state circa 1787 generally required more than simple house majority votes for the passage of bills or the adoption of internal house procedures, even though, in many of the states, no explicit clause specified this voting rule. In America circa 1787, majority rule in these contexts truly did go without saying.

We should also note that the Constitution’s electoral-college clauses explicitly speak of the need for a majority vote. In this context, involving candidate elections, majority rule did not go without saying as the obvious and only default rule. Plurality rule furnished a salient alternative (and indeed is the rule that even today remains the dominant one for candidate contests in America). But this point about candidate elections, which might involve voting on three or more persons simultaneously, did not apply to the enactment of house rules or the exclusion of members under Article I, section 5, or the enactment of laws under Article I, section 7—all of which involved
binary
decisions against the status quo. (As noted, majority rule has unique mathematical advantages in situations of binary choice.)

Fourth, as we saw in
Chapter 2
, majority rule was not only implicit
in the Constitution’s text, but also visible in its very enactment. Nothing in Article VII explicitly said that ratification conventions should act by simple majority rule, but this is what every convention did, and in a manner that suggested that the issue was self-evident.

Thus, in a wide range of constitutional contexts, majority rule went without saying. For the same reason that this background rule applied to ratifying conventions and to each house of Congress, it also applied to the Court.

From its first day to the present day, the Court has routinely followed the majority-rule principle without even appearing to give the matter much thought. As a rule, when five justices today say that the law means X, and four say it means Y, X it is. Over the years, the Court has invalidated dozens of congressional laws by the slimmest of margins: 5–4.

Politicians and commentators have occasionally urged Congress to respond with a statute forbidding the Court to strike down federal legislation unless the Court vote is at least 6–3. Yet Congress has never followed this advice—and with good reason, for hidden within this proposal there lurk at least two distinct and insuperable Article VI supremacy-clause problems. First, in situations not governed by the proposed statute, the Court would presumably continue to operate by majority rule. For example, Congress surely would not want the Court to enforce state laws violating congressional statutes so long as the state got four of the nine Court votes. But if a simple majority vote would suffice to vindicate a federal statute over a state law, the same simple majority vote should suffice to vindicate the Constitution over a federal statute. By trying to change the Court’s voting rule
selectively
, the proposed statute would violate the legal hierarchy laid down in Article VI, which privileges the Constitution over federal statutes in exactly the same way that it privileges (constitutionally proper) federal statutes over mere state laws. Second and more generally, any statute that gave a jurist brandishing a mere congressional law (or any other subconstitutional law) a weightier vote than a dueling jurist wielding the Constitution would improperly invert the clear prioritization of legal norms established by the supremacy clause.
³²

Could the justices themselves decide by simple majority rule to abandon Court majority rule in some situations where these sorts of supremacy-clause
problems do not arise? In fact, the Court has done just that, but in a manner that has preserved the ultimate authority of majority rule. By Court tradition, four justices—a minority—can put a case on the docket and, ordinarily, can guarantee that the petitioner seeking review will be able to press his case via full briefing and oral argument. But ultimately, the Court majority of five has the last word—not just on the merits of the case, but on whether the Court itself will in fact issue any opinion. At any time, a simple Court majority of five can dismiss any case on the docket, even if the remaining four justices adamantly object. In short, minority rules such as the “Rule of Four” nest within a framework of simple majority rule.
³³

A
SIMILAR ANALYSIS APPLIES
to the voting rules followed by the House of Representatives. In general, the House follows the Constitution’s implicit directive of simple majority rule in performing its basic constitutional functions: enacting legislation, authorizing expenditures, organizing itself, judging its members’ elections and qualifications, issuing subpoenas, adjudicating contempts, maintaining order within its own walls, and impeaching executive and judicial officers. True, a labyrinth of House rules—most obviously, a set of rules enabling committees and the House leadership to dictate the House agenda and another set of rules regulating parliamentary procedure—may prevent a given matter from ever reaching the House floor for a simple majority vote. But these internal rules are themselves authorized at the biennial beginning of each new Congress under the aegis of Article I, section 5—and they are authorized by a simple chamber majority in keeping with the Constitution’s letter and spirit.
³⁴

NOT SO WITH
what has now become perhaps the most dysfunctional aspect of modern American institutional practice: the Senate filibuster. Thanks to an internal Senate rule allowing filibusters—Senate Rule 22, to be precise—the de facto threshold for enacting a wide range of legislation has in recent years become 60 votes instead of the constitutionally proper 51 votes. Under Rule 22, a mere 41 senators can prevent a typical bill from ever reaching the Senate floor for a final vote, even if 59 senators on the other side are intensely eager to end debate and approve the bill. Can you spell “gridlock”?

The filibuster rule itself is not approved biennially at the outset of each new congressional term. Rather, this old rule, initially adopted by the Senate in the 1910s and significantly revised in the 1970s, simply carries over from one Congress to the next by inertia, under the notion that the Senate, unlike the House, is a continuing body. Senate rules, once in place, need never be formally reenacted. Similarly, Senate leaders, once in place, need never be formally reelected.
³⁵

But the Senate does generally retain the right to oust any holdover leaders at any time and to do so by a simple majority vote—and this majoritarian principle, which clearly applies to holdover Senate leaders, should also apply to holdover Senate rules. All Senate rules, including the filibuster rule, are valid
if and only if a majority of the Senate at any time may change the old rules by simple majority vote
.
³⁶

But some senators today seem to believe that a simple Senate majority cannot change the old filibuster rule, even if this Senate majority emphatically wants change. Why not? Because the old filibuster rule says so. That’s some catch, that catch-22.
³⁷

This circular logic will not do. The filibuster rule, like every other American law or regulation, is ultimately subordinate to America’s Constitution. If the Constitution requires ultimate majority rule in the Senate, no purported Senate rule may properly say otherwise. And in fact, America’s Constitution, correctly understood, does require ultimate majority rule in the Senate. Insofar as the old filibuster rule claims the status of an entrenched protocol that cannot be altered by an insistent current Senate majority, then the old filibuster rule is to this exact extent unconstitutional and should be treated as such by the senators themselves acting as the proper promulgators and judges of their own procedures. Concretely, if a simple majority of the Senate ever did take steps to repeal the filibuster rule, the Senate’s presiding officer should rule this repeal to be in order, and this ruling from the chair should be upheld by a simple Senate majority. And that would be that: No more filibusters.

We need not insist that a current Senate majority has the right to change its rules instantaneously and peremptorily. The Senate’s presiding officer may properly allow each side ample time to make its case before holding a vote on a Senate rule change. But any attempt to prevent a reform vote
altogether via dilatory tactics—that is, any attempt to indefinitely filibuster attempted filibuster reform—would violate the applicable written and unwritten constitutional principles.

THIS CONCLUSION MAY ASTONISH,
coming as it does in the middle of a survey of American institutional practice. Some might think that if the name of the game is actual governmental practice, the fact that the filibuster exists, and the fact that many senators claim that it cannot be altered by a simple majority, are unanswerable game-winners.

It is precisely at this point that this book’s general framework proves its worth. Let us, then, carefully apply this framework to the filibuster issue.

Begin by noting that even though majority rule is not always explicitly specified in various clauses of the written Constitution, it surely forms part of America’s
implicit
Constitution in certain respects. If the Senate may entrench (that is, enact and insulate from simple majoritarian repeal) a rule that 60 votes are required to pass a given bill, then the Senate could likewise entrench a rule that 70 votes are required. But such a rule would plainly violate the letter and logic of Article I, section 7, which provides that a two-thirds Senate majority always suffices, even when the president vetoes a particular bill. Surely it follows
a fortiori
that something less than a two-thirds vote suffices in the absence of a veto.

And that something is majority rule, as is powerfully evident from America’s
enacted
Constitution, which teaches us that majority rule does indeed go without saying in the Constitution, in the absence of strong implicit or explicit contraindication. Majority rule supplied the self-evident master norm for state ratifying conventions organized under Article VII. This key fact provides a compelling reason to believe that majority rule likewise provides the self-evident master norm for senatorial legislation under Article I, section 7, and also for senatorial internal rulemaking under Article I, section 5. Thus, unless we find in the written or unwritten Constitution some strong contraindication, majority rule is the Constitution’s proper voting protocol when the Senate decides whether to keep or scrap the filibuster rule.
³⁸

Nothing in America’s
lived
Constitution provides strong contraindication. Although it would be surprising if the daily rhythms and routines of
average Americans decisively answered technical questions concerning the Senate’s internal procedures, it is perhaps noteworthy that when average Americans participate in various clubs and the like, they quite often and without much ado practice majority rule.

Likewise, nothing in America’s
doctrinal
Constitution, either pre-Warren or post-Warren, supports the entrenched filibuster. Not only have the justices themselves always followed majority rule, but in the 1892 case
United States v. Ballin
, the Court explicitly embraced majority rule as the background master norm for each house of Congress: “[T]he general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body. This has been the rule for all time, except so far as in any given case the terms of the organic act under which the body is assembled have prescribed specific limitations.… No such limitation is found in the Federal Constitution, and therefore the general law of such bodies obtains.”