Dec 202021

The Hill has published an essay of mine, arguing that the modern filibuster is unconstitutional. There are many who have insisted as much — see, e.g., Gregory Diskant, Robert Reich, Erwin Chemerinsky & Bert Neuborne, Madeleine Polubinski, Kirk Jenkins; but see Michael Gerhardt, and this great debate between Josh Chafetz and Michael Gerhardt.The point I emphasize in this debate is that it is the evolution of the procedure that has rendered it unconstitutional. (Adam Jentleson’s book, Kill Switch, is a brilliant account of that history.) When it was a procedure to assure members had the opportunity to speak, it was fine (if a bother). But as a procedure to effectively block the beginning of any debate, it has…

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