Monday, January 16, 2006

Can congress bind future congresses?

An article from the "wrong" Amar is at FindLaw.

Summary. Probably no court would accept a challenge to strike down a future-supermajority requirement because of the political question doctrine--although courts have decided congressional rules before (Chadha and Powell). He asks the critical question:
Recall that the Constitution stipulates that "each House may determine the Rules of Its Proceedings." "Each House" probably means "a majority of each House." But which majority? The majority now, or the majority when the rule was enacted? After all, a majority of the Senate passed the current version of Rule XXII, which requires 67 votes for any rule changes.
He concludes that despite the Senate's somewhat countermajoritarian origins, entrenchment is probably a bad thing. On this he quotes Blackstone
"'Acts of Parliament derogatory from the power of subsequent parliaments bind not. . . Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament.'"
He notes that to do otherwise would be undemocratic--although he neglects what G.K. Chesterton has called "the democracy of the dead".

Finally, he agrees that this same argument applies to the constitution. The Senate filibuster debate is a miniature version of this. You need to follow Art V to change the constitution--but you really only need a majority to abandon it. You could in theory abandon it, and then reinstate it with a small change, avoiding Art V. This would be what in contract-land they call "mutual rescission" but we all know this makes a mockery of all that America and baseball stand for. Anyway, you'd need to admit that you have something new--a sort of "constitution-prime".

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