Invitation to sue Senate for filibustering

Open Memo to:

the ACLU, Mayor Bloomberg of NYC, and George Soros et al

I urge you to consider filing a lawsuit against the United States Senate, seeking a judicial order to cease and desist the practice of the filibuster and its partner-in-crime - the senatorial hold. The following argues against the Constitutionality of the filibuster, though similar logic could be used against the hold. In essence, the filibuster is nothing more than a tool used by a minority to thwart the will of a majority, thus being a gross denial of our cherished "one man, one vote" ideal.

Constitutionality

The practice of the filibuster is in direct violation of at least three different sections of the US Constitution:

Article V: "...no state, without its consent, shall be deprived of its equal suffrage in the Senate." If, for example, a state were (like all other states) allowed two senators but (unlike the others) only one could vote, that would be a clear deprivation of "equal suffrage." And yet, if a state's senator were to find his vote rendered meaningless by a minority threatening a filibuster, that is a comparably clear deprivation of "equal suffrage."

The Fifth Amendment: "No person...[shall] be deprived of life, liberty, or property, without due process of law..." When a citizen's senator finds the value of his vote diminished in Senate chambers, that citizen finds the value of his own vote similarly diminished. In other words, that citizen is being denied full and complete representation in the Senate, which in turn means he has been "deprived of...[his] property [that is, the full value of his vote], without due process of law."

The Seventeenth Amendment: "...each senator shall have one vote." That must mean, by any fair and sensible standard, that each senator's vote is to be considered equal to each other senator's vote. Allowing for filibusters denies this equality.

The Matter of Standing

If the merits of this lawsuit are to be considered by the US Supreme Court, the issue of standing must (obviously) be addressed. There are several possible parties you could recruit to be plantiffs:

1. A currently-sitting US Senator on record as having voted for cloture in a current filibuster session. Of course, it would help if this senator had not, earlier in his career, voted against cloture.

2. The parents of shooting victims at Sandy Hook Elementary School, who didn't have a chance in the Senate of having a gun control bill passed due to an implied filibuster threat.

3. A soldier who swore to defend the Constitution and chooses to do so by participating as a plaintiff in this suit.

4. A state with senators who have always voted for, and never against, cloture.

5. A homeless person - who is essentially a stateless person (in terms of the state he happens to live in) - who would love to have his voice heard for once in the lofty chambers of SCOTUS.

6. Any USA citizen who objects to, and is harmed by (who isn't?), the legislative gridlock caused by the Senate's insistence on supermajority rule.

7. Any combination of the above.

Sovereign Immunity

The Supreme Court might refuse to hear this case based on the long-assumed right of Sovereign Immunity possessed by the federal government. The idea that the government cannot be sued without its permission, however, is one that should be challenged. There are strong arguments to be made against the absolutism of this right and in favor of the sovereignty of the individual, as follows:


1)  From the Declaration of Independence: "...to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..." That is, without the consent of We-the-People (each of whom has Individual Sovereignty), the Sovereign government would not have its "just powers."

2)  The Tenth Amendment identifies three sovereign entities - the United States, the individual states, and the people.

3)  Nowhere in the Constitution does this concept appear: "The state can do no wrong and therefore cannot be sued without its permission." Since Article VI states, "This Constitution...shall be the supreme law of the land..," any other source promoting state Sovereign Immunity must be considered inferior. Article III, Section 2 argues against Sovereign Immunity when it states: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution...to controversies to which the United States shall be a party..." It doesn't say, "...to controversies to which the United States shall be a party, but only if it grants permission to be sued."

4)  Since Congress has the power to impeach the Sovereign President, surely We-the-People have sufficient sovereignty to be heard by the Supreme Court when violations of our constitutional rights are claimed.

5) The First Amendment enumerates certain rights, limiting the power of Congress. Suppose, however, that Congress violates the First by creating a state religion, or by abridging the freedom of speech or of the press? Will the Supreme Court claim that a citizen has no access to the judicial system because the state cannot be sued without its permission?

But there's no mechanism...

The Supreme Court might claim, "There's no Constitutional mechanism by which a lawsuit against the United States - in this case, the US Senate - could proceed." Indeed, Article III, Section 2 seems to support this view:

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

SCOTUS might point out, "Since this Court doesn't have original jurisdiction to hear a case brought by a citizen against the United States, and since it cannot be imagined which lower court could have such jurisdiction, it must be concluded that SCOTUS has no power to hear such a case under either form of jurisdiction."

However, I would argue there's an implied right for a citizen to have this case heard by the High Court. For Article III, Section 2 also states: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution..." Any claim that the Senate is violating the Constitution must surely be encompassed by this "judicial power." Since the First Amendment disallows the Congress from making any laws "...abridging the...right of the people...to petition the government for a redress of grievances," that must mean Congress can't bar SCOTUS from hearing an anti-filibuster case. For what good does it do to have the right to petition the government - of which SCOTUS is a part - for a redress of grievances, if it can be claimed that there's no mechanism in place by which SCOTUS can even consider this petition?

The Supreme Court might claim, "Each House may determine the Rules of its Proceedings..," as stated in Article I, Section 5.  However, can it be claimed that this power is absolute, including the ability to determine rules which deny to citizens and their states their Constitutional rights? Section 5 also states that, "Each House may...punish its Members for disorderly Behaviour..." Surely that doesn't mean that such punishment could include drawing and quartering. Just how much power are we willing to grant to "each House?"

5)  The Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Surely one of these rights must include a reasonable expectation that We-the-People have a right to have our case heard by SCOTUS when our rights are being violated.

Closing Comment

In closing, we would all do well to remember these particular words of the Preamble to the US Constitution:  "We the people of the United States, in order to...establish justice...and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

If, by any stretch, our current Constitution won't allow a court case against the filibuster to proceed, it would be high time to seriously consider ordaining and establishing a replacement Constitution.

Sincerely,



Steven Searle, former Candidate for U.S. President (2008 and 2012)
Founder of the Independent Contractors' Party

"I invite anyone reading this post to add their voices to mine by doing what I'm about to do - forward this post to the above-named parties as well as to whomever else you think might respond favorably."

Contact me at bpa_cinc@yahoo.com