Mos Maiorum: The Filibuster, Political Question Doctrine, and Judicial Enforcement of Norms
Blog Post | 110 KY. L. J. ONLINE | January 17, 2022
Mos Maiorum: The Filibuster, Political Question Doctrine, and Judicial Enforcement of Norms
By: William Pagan, Staff Editor, Vol. 110
“Mos Maiorium” was a concept in the Roman Republic which can be broadly defined as the “ancestral custom.”[1] This deference to tradition governed family relations, public life and—most importantly—political life.[2] Key aspects of the roles of public officials and the limits of their power in the largely unwritten roman constitution were derived from Mos Maiorium.[3] As the republic entered its terminal decline, many of the strictures of Mos Maiorium fell away; the non-reelection of Tribunes,[4] the due process rights of citizens accused of capital crimes,[5] and the strict separation of municipal politics and military power,[6] were at one time sacrosanct principles. Once these taboos were violated, however, their transgression rapidly became regular fixtures of politics and eventually saw the previously competitive oligarchy collapse into dictatorship. The stabilizing force of the republic was not the written codes of law but rather these un-codified norms.
The United States obviously has a written Constitution, however, the formally drafted document is only a fraction of the actual governing body. The Constitution is comparatively short, coming in —with all 27 amendments— at 7,591 words; the average state constitution is around 39,000 words,[7] while the longest national constitution (that of India) comes in at over 145,000 words.[8] This brevity has led to the growth of canon of texts, doctrines and norms that coalesce into a circumambient unwritten constitution.[9]
Deployment of this body of extra textual sources and norms, however, is uneven when it comes the application of the political question doctrine. To what degree can the judiciary enforce semi-constitutional norms? A prime example of this is the senatorial filibuster. While procedural on its face the current closure rule is a de facto super majority requirement for Senate legislation. The routinization of the filibuster is both recent[10] and contrary to implicit[11] and explicit[12] original constitutional design. Is the norm of a simple majority for most legislation judicially enforceable?
This proposition was tested in 2012 in Common Cause v. Biden, with the district court ruling that the filibuster constituted an un-judicable political question.[13] The modern political question doctrine is laid out in Baker v. Carr outlines several scenarios in which a dispute is a political question; most crucially in this, a direct constitutional grant of power to a co-ordinate branch.[14]
In the case of the filibuster, Article I, § 5, Clause 2 grants the Houses of Congress the power to set their own rules. These rules are not judicially unreviewable per se,[15] but the extent to which the judiciary can intervene is constrained by the political question doctrine. The court cannot craft congressional rules themselves,[16] and they may only intervene when presented with a contradictory constitutional pronouncement.[17] This pronouncement, however, must be explicit and the courts have been skeptical of arguments built on slim textual evidence.[18] In Common Cause v. Biden, the court finds no such pronouncements and dismisses the question as unjudicable.[19]
This reading of contradictory constitutional provisions, however, may be much to cramped. A lot of the basic rules governing our constitutional system aren’t fully fleshed out in the short text of document; they exist instead in the realm of norms in the unwritten constitutional canon. The only thing preventing a creative legislature from subverting basic principles by creating procedural rule making[20] is a sense of deference to political tradition to “Mos Maiorium.” The roman experience shows us that judicial enforcement of these norms, however, last only till someone has the nerve to violate them. With no other mechanism of norm maintenance, this is a recipe for a slide into instability, procedural extremism and even authoritarianism.
[1] Karl J. Hölkeskamp, Reconstructing the Roman Republic: An Ancient Political Culture and Modern Research 17 (Henry Heitmann-Gordon Trans. 2010).
[2] Id.
[3] For discussion of Mos Maiorium and its role in the disintegration of the Roman Republic’s political system See Mike Duncan, The Storm Before the Strom (2017) (arguing that the breakdown in republican norms from the Gracchus brothers to the Sullan dictatorship played a greater role in the ultimate demise of the Republic than previously believed)
[4] The reform movement of the Gracchi (133–121 bc), Britannica Academic, Encyclopædia Britannica (Sept. 15, 2021), https://academic-eb-com.ezproxy.uky.edu/levels/collegiate/article/ancient-Rome/106272#26627.toc.
[5] See Richard Wellington Husband, The Prosecution of Catiline’s Associates, 9 Classical J. 4, 15 (1913) (discussing how the execution of the alleged co-conspirators of Catiline violated existing Roman Due process traditions).
[6] Civil war and the rule of Lucius Sulla, Britannica Academic, Encyclopædia Britannica (Sept. 15, 2021), https://academic-eb-com.ezproxy.uky.edu/levels/collegiate/article/ancient-Rome/106272#26636.toc.
[7] Brenda Erickson, Your State’s Constitution – The People’s Document, NCSL Blog, (Nov. 17, 2021), https://www.ncsl.org/blog/2017/11/17/your-states-constitution-the-peoples-document.aspx.
[8] Sophy Owuor, Which Country Has The Longest Written Constitution In The World?, WorldAtlas.com (Dec. 18 2018), https://www.worldatlas.com/articles/which-country-has-the-longest-written-constitution-in-the-world.html.
[9] This unwritten meta-constitution is best exemplified by the rights jurisprudence of substantive due process. In fact, the more restrictive interpretation of fundamental rights established in Washington v. Glucksberg resembles the roman concept of Mos Maiorum. See Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (“First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, *721 ‘deeply rooted in this Nation's history and tradition,’”) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1997)).
[10] Ezra Klein, The history of the filibuster, in one graph, Wash. Post (May 15, 2012), https://www.washingtonpost.com/blogs/ezra-klein/post/the-history-of-the-filibuster-in-one-graph/2012/05/15/gIQAVHf0RU_blog.html.
[11] U.S. Const. art. II, §2, cl. 3.; U.S. Const. art. II, §3, cl. 7. (the inclusion of a special greater than majority vote thresholds in art III, §2, cl. 3 for treaty ratification, art II, §3 cl. 7 suggest a general assumption of the senate operating on a majority basis. Afterall, why would these special thresholds be necessary if routine action was subject to already high vote thresholds.)
[12] See The Federalist No.22 (Alexander Hamilton) at 135–36 (J. & A. McLean 1788) http://www.americanhistory.amdigital.co.uk.ezproxy.uky.edu/Documents/SearchDetails/GLC01551#Snippits (arguing against implementing a supermajority requirement like the one in the Confederation Congress in the new legislature; suggesting that such a requirement would produce an ineffective national government).
[13] Common Cause v. Biden, 909 F.Supp.2d 9, 27 (D. D.C. 2012).
[14] Baker v. Carr, 369 U.S. 186, 217 (1962).
[15] United States v. Ballin, 144 U.S. 1, 5 (1892)
[16] Id.
[17] Powell v. McCormack, 395 U.S. 486, (1969
[18] Nixon v. United States, 506 U.S. 224 (1993)
[19] Common Cause v. Biden, 909 F.Supp.2d 9, 28 (D. D.C. 2012).
[20] It takes only modest imagination to concoct rules which would could seriously undermine core principles such as: population based representation in the House (require a vote of delegations before any measure can advance to a final vote), separation of powers (requiring the consent of the president to advance any measure to a vote) or just plain fair play (a rule allowing leadership to change the vote threshold necessary to close debate at will), without running afoul of textual prohibitions on action.