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The Confederate Lawyer
March 25, 2010

Destroying the Traditions of the Senate
by Charles G. Mills

GLEN COVE, NY — In 1787, the delegates to the Constitutional Convention wrote the United States Constitution and created a model for constitutional government that has never been surpassed. Two years later, the French Estates General created the model for modern tyranny. These represent polar opposites of modern government. The American model was designed to require concurrent majorities and institutions to make any change to a basic institution or abridge any established civil right. The French model was designed to allow popular majorities to kill former tax collectors, aristocrats, clergy members loyal to the Pope, and chemists. The American model protects the individual, while the French model empowers the majority even to the point of tyranny.

The keystone of the American Constitution is the United States Senate, which the Framers regarded as a bulwark against tyranny. They designed the Senate to protect the small states from the will of popular majorities in the House of Representatives and from overreaching by the federal government. The more deliberative Senate was able to give careful consideration to proposals passed hurriedly by the House of Representatives in response to popular enthusiasms, and the Senate established a tradition of taking sufficient time to do this.

The House of Representatives and the Senate quickly developed different approaches. In the House of Representatives, the leaders control the flow of business and the majority sets the legislative agenda. In the Senate, unanimous consent governs much of the legislative work, and traditional courtesies protect the rights of every senator.

Unlimited debate is a crucial part of the Senate’s ability to give thorough consideration to proposed legislation. Sometimes this process involves the filibuster. The classic filibuster required those who wanted to prevent a vote to talk continually, night after night. In recent years, however, the Senate has not insisted on actual debate but simply neglected any matter that was being filibustered until the votes were sufficient to close debate. Once Senators were no longer required to stand for hours talking during a filibuster, the filibuster became much easier and was used more often. In response, an unwise change was pushed through as part of the civil rights revolution that reduced the number of votes necessary to close debate from two thirds to 60.

Filibusters are also restricted by the rule limiting debate on bills that reconcile the amounts authorized in laws to the amounts in the budget. The proponents of the health care Intolerable Acts have used this rule in a way in which it was not designed and which will open the door to rushing legislation through the Senate without deliberation.

The Constitution originally provided that Senators be elected by the state legislatures. This requirement gave the states a valuable voice in Washington to protect them from excessive centralization of the government. In 1913, Progressives pushed through the 17th Amendment to the Constitution, which established direct popular election of Senators. This change deprived the several states of their last voice in the federal government and made the Senate far too much like the House of Representatives. Senators elected by state legislatures were likely to block action to concentrate power in the federal government; they were unlikely to pass laws that would violate state sovereignty, and they were unlikely to advise and consent to appointees hostile to state sovereignty. The 17th Amendment deprived us of these prudent protections.

A government that is too efficient in taking away rights from individuals or state governments can be the gateway to tyranny. A Senate that is more or less a carbon copy of the House of Representatives may be more efficient, but it also may be hazardous to liberty.

The Constitution originally provided for a Senate that represented the states rather than the voters. A popularly elected Senate that can easily end debate is no check at all on the House of Representatives. The people need to be educated about the intent of the Framers when they established the system of delay and deliberation as a protection against the tyranny of popular passions. Perhaps then the Senate will be able once more to serve as a needed brake on reckless legislation. Perhaps then we could even return to the original way of selecting Senators. The Senate was once a far, far better place. It should return to its roots.

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The Confederate Lawyer column is copyright © 2009 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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