Comments on: The Theory of Constitutional Moments

By: Can the Occupy Movement Tackle Crony Capitalism? — The League of Ordinary Gentlemen

Mon, 31 Oct 2011 03:48:22 +0000

[...] They were baked in the cake as we evolved our federal government by way of court decisions and “Constitutional Moments.” We got the progress and economic growth hoped for, but we failed to install structural [...]

By: Cartoon Congress : Organon

Cartoon Congress : Organon — Thu, 04 Mar 2010 17:21:45 +0000

[...] I thought this Tom Toles cartoon, via Ezra Klein, was a good illustration for the hypothetical in Len’s recent comment. [...]

By: Len

Len — Thu, 04 Mar 2010 01:42:00 +0000

I can get behind the Congressional waterboard plan.

If the Democrats had any guts they would just say, screw you guys, it’s 50 votes plus Biden for everything. What are the GOPers going to do? Go on TV and cry? You KNOW that as soon as the GOPers are back in the majority that is exactly the rule change they will do.

This is 2010. Dump the arcane rules and create a functional legislative body. Here’s the thing – suppose that whatever majority it takes today today to change a rule somehow comes together and makes a rule that says 100 Yes votes are required to pass anything in the Senate. Is that rule any different from today’s filibuster rule, other than being more crazy?

Go for straight majority. I’ll bet the Dems get a 10 point boost in the polls for showing some guts. David Broder may cry, but who cares?

By: The Constitutional Implications of Institutional Failure : Organon

The Constitutional Implications of Institutional Failure : Organon — Wed, 03 Mar 2010 16:34:12 +0000

[...] post yesterday about constitutional moments was really just an aside to a discussion of Jack Balkin’s post [...]

By: Jim Hufford

Jim Hufford — Wed, 03 Mar 2010 15:40:23 +0000

You’re right, what I’d written was terribly misleading. Hopefully, for my sake, it was only a matter of clumsy writing and not confused thinking. Thanks for alerting me to it. Changes above should clarify.

I do think the word “constitutional” needs some help. It has too much work to do. We often use it when talking about whether something violates some rule of constitutional law. For example: sure, Mr. President, your plan to waterboard Congress is totally constitutional. But we also need that word to be a simple adjective meaning “of, like, or pertaining to the Constitution.” E.g.: Congress is first among three co-equal branches in the constitutional design. Things get confusing when we talk about “constitutional change.” Does that mean “change permitted by the Constitution”? Or “change to the Constitution”? Or both: “change to the constitutional relations between constitutional branches that is permitted by the Constitution”? See what I mean?

This, by the way, is another example of why it takes so many words to say things in legal language. It’s not that legalese is a foreign language or dialect. It’s that common English usage is rife with ambiguity and vagueness.

By: Lee

Lee — Wed, 03 Mar 2010 11:43:54 +0000

I’m confused… my understanding is there is no mention of the filibuster or reconciliation in the Constitution… they are just traditional Senate procedures (the latter being more recent). So changing or abolishing these rules wouldn’t be “constitutional,” unless you’re using the word to indicate “a really big deal,” which would be uncharacteristically imprecise of you!

Separately, I would like to register my annoyance over people (not you) who make no distinction between the reconciliation strategy being discussed a few months ago (i.e. using it for the entire HC bill), and what’s being discussed now (using it to amend budgetary aspects of a bill that’s already been passed through the normal, filibusterable, voting procedure)