It is popular these days to state that the founding fathers were interested in a “Judeo-Christian” nation despite ample evidence to the contrary. For example, there is the Unites States Treaty with Tripoli, passed by acclamation in 1797 and signed by President John Adams, which states in article 11, “As the Government of the United States of America is not, in any sense, founded on the Christian religion.“ Likewise, it is popular to have the founders endorse all kinds of ideas ranging from the 20th century insertion of “under God” into the pledge of allegiances to the columnist Walter Williams' “our founders harbored a deep distrust and suspicion of Congress.“ An opinion hardly supported by the both under the Articles of Confederation (see esp. Article V) and then under the Constitution, as they explicitly required a Congress. Presumably, under this rubric and like God and Jesus, the Founders would intercede in sporting matches.
I bring this up because Senator Jim Bunning has just backed off a filibuster that certainly gives credence to one's belief that congress is not to be trusted. This on top of Senator Richard Shelby giving credence to that distrust and whole gaggle of GOP reasons to distrust the congress during their highly-scripted participation in the so-called health care “summit” last week.
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At the center of the current mess, and you'll be hearing about it even more as we approach the fall elections, are senate rules that allow a single member to anonymously place a “hold” on pending legislation and the hoary rules on the filibuster. The founders had no practical opinion on the filibuster. The term itself came up in the 1840s and the procedure under which it became possible were proposed in 1806 by former Vice-President Aaron Burr to eliminate the ability to “move the previous question.” The reason that Burr proposed to abolish the ability to extend debate indefinitely was that no one used the rule rather than from some deeply held conviction of the rights of minority parties to be heard.
The fact that the Founders and filibusters hang separately and not together does not prevent their invocation, often in logically challenging ways. It is part of the current GOP healthcare lexicon that they refer to “reconciliation” as the “nuclear option,” referring to a totally separate Republican proposal of the Bush years which had been denounced by then-Senator Barack Obama and other Democrats as an “‘arrogant’ power grab against the Founders’ intent.“ The implication being, after some twisting, that the Founders' intent was against Reconciliation and that Democrats are hypocrites. They would have a point if apples were oranges and the nuclear option under discussion then not a ban on the filibuster of judicial nominations as opposed to reconciliation, an established part of the conference process, which turns separate House and Senate bills into a single law.
However, the more important point here is not the tortured use of the Founders as endorsers of 21st century political machinations. Instead, I would like to leave you with the idea that just maybe the Founders intent, as with the neo-Levitican constitutional treatment of slaves for instance, was meant to be reviewed over time and changed in its implementation. The rules of Congress date from a time when it was assumed the members to be “gentlemen” and not litigious politicals taking every inch and more. Insofar as they had intent in regards to the filibuster, it was probably that the members of the senate would be honourable enough to know the difference between a matter of critical minority rights and that of the timely delivery of pork to their own district. Since we now have a congress made up of Bunnings and Shelbys instead of gentlemen (or those sufficiently afraid of a duel to act like gentlemen), perhaps it is time to revisit the filibuster rules.
Maybe duels too.
