I should remind everyone, by the way, about Greg Koger's series of posts at the Monkey Cage a while back. Meanwhile...
Kevin Drum is once again pushing his theory that the filibuster is unconstitutional. Anti-filibusterer Matt Yglesias points out that the Supremes wouldn't rule on it under the political question doctrine, but I don't think it matters anyway; I think the case is pretty weak. Here's his argument:
The fact that certain types of legislation (treaties, constitutional amendments, veto overrides, etc.) specifically require supermajority votes is evidence that the framers assumed that ordinary legislation should be passed by majority vote. Assumed it so strongly, in fact, that they never seriously considered the possibility that they had to spell it out.The problem is that against that -- even if true -- is the basic Constitutional language:
Each House may determine the Rules of its Proceedings (Article 1, Section 5).That sounds pretty absolute to me: Congress can set any rules it likes. Well, any rules it likes other than those (such as the supermajority requirements cited above) that are specifically mandated by the Constitution.
It seems pretty hard to argue a "they must have meant" against a "they said explicitly." I'm open to a more complex argument, but I'm really not seeing it.
(Does anyone know if Parliament had any supermajority rules that the Framers would have known about? I'm certainly not familiar with that history, and I suppose that it would shed a little light here, although I just can't see anything overriding what I read as a flat-out grant to Congress of control over its own rules).