The Extraordinary Amendment To The Constitution

Senator Jefferson Beauregard Sessions, III has proposed an extraordinary Constitutional theory - that 14 Senators have the power to amend the Constitution. First, let us revisit Sessions' views on Senate confirmation of judicial nominees:

“One of the many reasons why we shouldn't have a filibuster, an important one, is Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote and simply 'advise and consent' on nominations,” he said in a 2003 floor statement. "Historicaly, we have understood that provision to mean -- and I think there is no doubt the Founders understood that to mean -- that a treaty confirmation requires a two-thirds vote, but confirmation of a judicial nomination requires only a simple majority vote."

While this reading of Article I is not supported by the text, what is really extraordinary is Sessions' views on how the Constitution can be amended:

The Alabama Republican, as ranking member of the Senate Judiciary Com mittee, defended his strategy to re porters Monday in the Capitol, saying David Hamilton's nomination justifies a filibuster because of "extraordinary circumstances."

The "extraordinary circumstances" standard was set four years ago by a bipartisan group of senators who settled a stalemate by saying judicial filibusters should be used sparingly, but that they could be used.

"The rules have changed," Sessions said.

"The rules" in question, according to Sessions, are the Constitution. Again, Sessions' position is not supported by the text:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Apparently there is a new Sessions codicil - 14 Senators can amend the Constitution now by informal and unenforceable agreement. Seems rather activist to me.

Speaking for me only

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    The Gang of 14 thing was (5.00 / 5) (#1)
    by ruffian on Wed Nov 18, 2009 at 08:50:08 AM EST
    so infuriating. I hadn't found this blog yet, so I had to fume in private.

    I'm pretty sure the Dems in that gang are not even surprised at Sessions now. They knew this would happen if the Republicans were ever in this position, and went along with it anyway. Weak weak weak.

    Negotiating with the Unnegotiatable (none / 0) (#2)
    by The Maven on Wed Nov 18, 2009 at 12:41:46 PM EST
    The mere fact that Sen. Sessions and his fellow wingnuts have been playing this game over someone like David Hamilton -- who's about as mainstream and uncontroversial as district court judges/circuit court nominees come -- is what make this all so insane.  Sessions is merely working to set the bar at an all-but-unachievable level.

    There never really was any intent of a continuing arrangement by the Gang of 14; its only purpose was to permit more of Bush's only moderately objectionable nominees to get their up-or-down votes, and now that a Dem is in the WH, all bets are off.  (It doesn't help our cause that Obama has been so slow in making nominations, as a larger backlog would give us even greater reason to complain about GOP obstructionism.)

    At least the Hamilton nomination survived the cloture vote yesterday, Sessions and 28 of his colleagues notwithstanding.