Quote:
Originally posted by Mmmm, Burger (C.J.)
That's a fair point, but why is this Senate better positioned to make that determination? It's the reverse of an originalist argument they're making. That is, ordinarily a practice that was in place at the founding (or thereabouts) is presumed to be constitutional because absent something explicit in the constitution, we assume there was no intention to make it unconstitutional. For example, we assume teh death penalty is not cruel and unusual punishment because it was used regularly in the 18th century. Had that clause been intended to make the death penalty unconstitutional, we would have seen something more explicit, like discusison of the fact and acknowledgement of the new era.
Same with the fillibuster. It's been used for 200 years, without a question of its constitutionality. That means something.
|
Well I'm going to fight the hypo - This particular senate is not making any determination. It would be a court making it if it were challenged.
This particular Senate is no better positioned than any other Senate, just like a plaintiff that challenges the constitutionality of a statute is no better positioned to do that than a person to whom the statute was applied prior in time.
