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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.
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The House had one too - they chucked it.
As for the Senate, only in the last 10-15 years has this "silent filibuster" been in effect. And unlike "true" filibusters, which you can beat by waiting the opposition part (e.g., Byrd and his filibuster of the Civil Rights Bills), this new "silent filibuster" acts as an outright minority veto. Wholly different result.
