Constitutional Opinions

Ex Parte Scalia

By From the October 2013 issue

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IF WE CONSTITUTIONAL fundamentalists ever triumph in the courts, the person to have whispering the reminder that all glory is fleeting would be Hendrik Hertzberg. A former chief speechwriter for President Carter and now a writer for the New Yorker, he is an honest liberal—and a crafty constitutionalist. He is just out with a column on the only remaining feature of the Constitution that the parchment itself says can’t be amended, namely the equal representation in the Senate of each state, no matter what its population.  Hertzberg’s column came up on the scope when I started poking around about the logic of the Senate, which has been creeping into the national conversation. There was the 13-hour filibuster against drones mounted by Rand Paul. There are all of Harry Reid’s threats to use the “nuclear option”—to change the chamber’s rules so that certain filibusters can be ended with just a simple majority, instead of the 60 votes now required. There is the rat-a-tat of the New York Times against the evils of the upper house, the latest being that it is the “least democratic legislative chamber in any developed nation.”

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).