Lex Majoris Partis: How the Senate Can End the Filibuster on Any Day by Simple Majority Rule

Abstract

Though I never knew Professor Brainerd Currie-he died when I was just a lad-I did know and admire his son, Professor David Currie, who passed away in 2007. I was especially impressed by the younger Currie's sustained interest in congressional constitutionalism'-that is, in various constitutional issues that have arisen in Congress and that have often involved special rules and procedures of Congress itself. In the tradition of the younger Professor Currie, I propose to use this hour, as the 2013 Currie Lecturer, to address one of the most important contemporary issues of congressional constitutionalism: the Senate filibuster. In this hour I shall argue that, contrary to what many senators say and what some of them might even believe, the Senate may eliminate current filibuster practice on any day it chooses, and may do so by a simple majority vote. My main argument today reprises material from my recent book, America's Unwritten Constitution: The Precedents and Principles We Live By, and I am particularly grateful that the Duke Law School has kindly arranged for copies of this book to be given to the students in attendance today. In a brief Coda to my main argument, I shall offer additional elaboration, placing my views in the context of recent events on Capitol Hill and explaining how my proposed approach intersects with longstanding arguments about whether the U.S. Senate is or is not a "continuing body."