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07/05/2009

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Anonymous

These are interesting notes.

We can think of an anti-majoritarian filibuster in roughly the same way that we think of the counter-majoritarian difficulty of judicial review (see A. Bickel)with an important difference I note below. Neither the filibuster nor judicial review is majoritarian, but as you note, "the abuse of majority power is a greater danger in the world of big government than the blocking of the majority's will."

It therefore puzzles me that both parties are able to support filibusters (at least tacitly), redistricting, poison pill amendments, and other anti-democratic devices employed by the legislative branch at the same time that they increasingly oppose judicial review of popular action. A filibustering senator is just as undemocratic as a federal judge, and he is most likely stupider.

The difference, as I see it, is that people are often happier to protect minority states (that is, states that are sparsely populated, and for good reason) than minority populations within those states. That was the national debate in the civil rights movement: whether to sympathize with the minorities within segregated states (where the Southern states were the antagonists), or with the minority of states that practiced segregation (where the meddling desegregated states were the antagonists).

"Federalism" has always had an unsightly skeleton in its closet.

Anonymous

If 50 Senators simply voted for a bill and held their ground then a Supreme Court ruling is in the docket. So filibuster only works when at least 50 Senators agree that a Supreme Court case is worse the any bill they desire.

Anonymous

Prof. Becker has in this post and in others in the past noted that some inefficiencies should be tolerated because of their salutary effect on... culture? politics?

It would be interesting to hear more from Prof. Becker on how and when inefficiencies such as the Senate's filibuster rule are... efficient.

What does Prof. Becker think of Posner's concept of Schumpeterean democracy, for example? Inquiring minds want to know.

Anonymous

I'm all for an inefficient government. The more inefficient the better. Could you imagine what garbage would be legislated if the government were 'efficient'? Each legislator would take turns satisfying his/her constituents while trying to regulate society towards 'equality'.

The cost of poorly thought out social programs is too great to let the simple majority have a free pass in enacting them. Once a program is in place it is practically permanent (e.g. Social Security, Medicare, etc.).

Unfortunately, the government is not inefficient enough and we will likely see some doozies passed in my lifetime (public healthcare, carbon cap and trade, card check, protectionist trade, etc.).

The irony for me as a Chicago grad is the explicit stamp of approval the school gives (via Prof. Goolsbee) to these policies.

I only wish we paid politicians to filibuster and campaign. It would be much cheaper!

Anonymous

@Anonymous July 7,2009 12:46 p.m.

Agreed. I think one of the more compelling arguments in favor of Judge Posner's "Schumpeterean" concept of democracy is that it's the least costly way to deal with the subset of every population that will have political ambitions.

When politicians complain about a procedural rule being "inefficient," as members of the public we can generally cheer because the incentives of politicians is to draw more resources to themselves. Unlike the rest of us, however, most politicians don't have to deal with the fallout when their plans don't work. Will the Obama Administration still be around when the financing bills for this round of stimulus comes due? Perhaps because things seem to be moving faster now than ever before.

Anonymous

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Anonymous

I have posted a lengthy analysis in support of bicamerlism, the need for the Senate, and the virtues of the filibuster under Posner's comments.

With regard to this statement:

"The Constitution, and the checks and balances among the executive, legislative, and judicial branches of government, are important ways they devised to rein in the power of majorities",

my comments analyse and explain why for the estimated 45 million or so of us adults DX'd with autism, without bicamerlism, the Senate, and the filibuster we would have no hope of any peer representation in any of our three Branches of Government.

Leaving some estimated 45 million adult Americans with autism and savant abilities out of all peer representation in our Government is not a small externality, but one of such RISING AUTISM EPIDEMIC NUMBERS that it could well bankrupt this Nation.

Ensuring that adults with autism can meaningfully participate in our Government is essential to the health of the Nation.

~EquiisSavant
DX, high functioning autism and savant abilities in art and the law
Juris Doctorate, July 1997 Calif. Bar Exam passage
http://equiisautisticsavantartist.webs.com/

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