Saturday, May 19, 2012

The Filibuster

"19th Century Filibuster," from U.S. Senate Art and History,

A group of Congressmen and potential beneficiaries of the DREAM Act last week filed a lawsuit challenging the constitutionality of the filibuster.   More on the lawsuit in a blog post by Common Cause President Bob Edgar. (According to a US Senate web site, “The term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill.”) 

The lawsuit brings to mind famous uses of the filibuster in the past.  It is commonly said that Southern senators invoked the filibuster to block civil rights legislation, including anti-lynching legislation.  The Civil Rights Act of 1964 endured a 57 day filibuster. 

The constitutional challenge is sure to invoke history on one side or the other (or both).  Perhaps our readers will comment on the leading historical treatments of the filibuster.


Dan Ernst said...

Fisk & Chemerinsky, Stanford Law Review (1997).

Otto Vervaart said...

Thanks for the reference to this very interesting article! As a Dutchman I wondered at first about the assertion that the word filibuster comes originally from a Dutch word. I checked the online version of the "Woordenboek der Nederlandse Taal",, where you can search in fact simultaneously in a number of dictionaries, and indeed filibuster comes from the word "vrijbuiter", freebooter, a word first attested in the late sixteenth century. This word became in French filibustier which made it into English with only a small change.

Josh Chafetz said...

If I could be immodest, Chafetz, The Unconstitutionality of the Filibuster, 43 Connecticut Law Review 1003 (2011), available at

Pages 1017 to 1028 in particular take on the argument that the filibuster in its current form has a long and distinguished history.

The People's Business said...

What I'd really like to know about is the state of scholarship pre 2009.

Forgive my suspicion of the recent concern about the constitutional integerity of a tool used by both parties for 200 years.

Any Dscholarship complaining about this from 2000-2008 in particular?