Political Hay

Constitutional Ignorance

In the filibuster debates, Democrats again wear it as a badge.

By 5.17.05

Send to Kindle

The Discovery Channel has conducted a survey and with some significant tinkering (I hope and assume) by the executives at the Discovery Channel has come up with the American public's choice of the 100 greatest Americans of all time. James Madison didn't make the cut, losing out to such luminaries as Madonna, Dr. Phil, and Ellen DeGeneres. That's good news for Senate Democrats whose "constitutional" arguments against getting rid of the filibuster as a tool to block judicial nominees would be laughed at by a more constitutionally literate public.

Senate Democrats have been fond in recent weeks of quoting James Madison and talking about the grand vision of the Founding Fathers and our system of checks and balances. They even got the Senate Republican leader, Bill Frist, to admit -- as widely reported in the news media as if it were a great point -- that the Constitution doesn't use the word "vote" in describing the Senate's duty to provide advice and consent for a president's judicial nominees. Well, arguing on that basis that the Senate can provide advice and consent without voting, even at the committee level, is a rather "strict" interpretation of the Constitution -- one that might even be called "extreme." How, one wonders, do these hyper-strict literalists find a constitutional right to abortion?

The constitutional scholars of the Democratic Party insist that the filibuster is the cornerstone of the Constitution's protections against the "tyranny of the majority" and is essential to the maintenance of a check on the Executive Branch's power. Really? Do properly functioning checks and balances require that a minority of the Senate have the right to thwart the will of the Executive Branch and the will of a majority of the Senate?

The Constitution seeks to guard against a "tyranny of the majority" by limiting the power of government. The government, for instance, is barred from closing down newspapers, or from forcing everyone to be Christians, even if a majority desires such things. Eliminating such limits on government power would require the large -- and long-standing -- majorities needed to succeed in the rigorous process of amending the Constitution as specified under Article V. Or at least that's how the dangerous, extremist, Bush judicial nominees see it. Democratic "moderate" judges recognize that the Constitution is not really a binding legal document and can be altered and amended by judges based on what they perceive to be the feelings of the day. And that goes for any law -- federal or state -- too.

So while we get the Democrats wailing about dangerous conservative extremist judicial nominees, Democrat-appointed judges, at the federal and state levels, have made such recent rulings as that the Boy Scouts must be barred from using government property, that the Pledge of Allegiance is unconstitutional, that homosexuals must have the right to "marriage," and that on election night, polls in Democrat strongholds in St. Louis have to remain open longer than in the rest of Missouri.

Of the actions by the President that require the "Advice and Consent" of the Senate (enumerated in Article II, Section 2), the Constitution only specifies the consent of more than a simple majority of senators for the ratification of treaties (which requires a two-thirds majority). If the Founders had intended that Senate approval of a president's judicial nominees should require a super-majority, they would have said so in the Constitution, just as they did for treaties. Filibusters are not part of our constitutional protections; they are the result of Senate rules. And for more than 200 years, no Senate has thought it appropriate to use the filibuster against judicial nominees as the Democrats are now using it.

Senator Frist is seeking support for the so-called "nuclear option" to thwart further Democratic filibustering of judicial nominees. This would require a majority of the Senate to agree to change the rules regarding how filibusters can be used. According to the Democrat leader in the Senate, Harry Reid, this would constitute "breaking the rules." Breaking the rules? The "rules" of the Senate are that the Senate can, by majority vote, make (and change) its procedural rules. That's in the Constitution (Article I, Section 5). Saying that the Senate can't change its rules is, in fact, the unconstitutional position. But we shouldn't be surprised that the Senate Democrats are opposed to the Constitution when it inconveniences them, or that they don't even seem to understand it.

The Democratic Party has been systematically attacking the Constitution since the days of FDR. With the aid of "intellectuals" and various law school faculties, the Democratic Party has succeeded to a great extent in supplanting the idea that the Constitution is the law of the land with the view that it is a "living document" that can and should be "interpreted" to suit our changing times. That success should chill Americans far more than the possibility that the Patriot Act might allow the FBI to look into the library records of suspected terrorists. But then, if the Discovery Channel is to be believed, Americans think that the work of James Madison is somewhat less important than that of Tom Cruise.

Like this Article

Print this Article

Print Article
About the Author
Brandon Crocker is the chief financial officer of a commercial real estate development and management company in San Diego.