"constitutional moments" and the health care bill

With the Senate health bill having received 60 votes the danger of strong-arm tactics, designed to pass the bill with fewer than 60 supporters, has subsided for the moment. But talk of such tactics--and the likelihood that similar situations will recur in the future--makes the issue worth discussing nonetheless. The issue is important, I think, less for the sanctity of the 60-vote requirement than for what the tactics say about constitutional theory and its application in the current political environment.

Writing at Balkinization last week, Jack Balkin, the creator of the blog, argued that Barack Obama faced a "constitutional moment" of the type identified by his colleague Bruce Ackerman's theory and, if he failed to act appropriately, might see his entire agenda unravel. Balkin called for aggressive action, including the use of reconciliation procedures or other similar members, so as to force the Senate's hand. A few days later Paul Krugman, writing in the NY Times, called the existing political system "dysfunctional" and called for changes in the Senate rules, albeit in a somewhat less confrontational manner.

It must be conceded, at the outset, that the 60 vote requirement is a matter of Senate rules rather than a constitutional provision; the term "quasi-constitutional" is probably best applied to it. And it can hardly be denied that both Democrats and Republicans have misused the rule: the filibuster concept, to which it is tied, was always intended as a way to slow down legislation rather than permanently defeat it. A combination of excessive partisanship and rule changes, which allow an effective filibuster without even the need to keep talking, appear to be responsible for the deterioration.

That said, the attempt to end-run or simply overpower the 60 vote rule leaves cause for alarm. While the rule has questionable origins, it has been understood to be the rule for some time, and both sides have played with that understanding. If the rule can simply be avoided when the results are displeasing, what is to stop other rules--constitutional or otherwise--from suffering a similar fate? It must be remembered here that health care is not the only Democratic priority: cap and trade, financial reform, and perhaps a second stimulus bill are similarly "vital" measures in the liberal worldview, and if means are subjected to ends one time they will likely be again.

The theory of "constitutional moments" is especially troubling here. The theory was originally intended as a descriptive matter, explaining how important constitutional changes (the post-Civil War amendments, the New Deal, etc.) often came about as a result of procedurally dubious, extra-constitutional developments. I doubt that even Bruce Ackerman intended it to be used as a prescriptive tool, justifying the intentional strong-arming of existing rules and procedures so as to achieve a desired result. Suppose, in this context, that the Democrats lose the next election and Obama himself is voted out in 2012. Will it be time for a Republican constitutional moment, in which a GOP majority rides roughshod over Democratic dissent, or tries (again) to remove a Democratic President on legally dubious but politically attractive grounds?


I also wonder about the effect on "civility," which everyone claims to favor, if these proposals go forward. It is said that Glenn Beck and the "tea party" types are paranoids for thinking that the constitution and the republic are in danger as a result of Obama's agenda. Won't direct assaults on established rules give them more credence, and won't the long-term damage outweigh any short-term gains?