Bench of Interest

"I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them."
--Thomas Jefferson

Weeks back when Senate Democrats first raised the spectre of using the so-called 'reconciliation' process (majority or 51 votes yea required for passage) rather than the 'normal' process (60 yea vote required) to vote on the proposed health care bill, I once more returned to the Constitution to understand what the law specified re congressional legislative process.

Not much there overall. Article 1, Section 5 states that "Each House may determine the Rules of its Proceedings." The only specification is that a majority quorom must be present in order to do business.

Article 1, Section 7 provides more specific requirements on votes that are vetoed by the president and then revised.  Passage of the revised bill requires a 2/3 vote (what is sometimes referred to as a 'super majority') in order to become law.

It turns out that the Senate has been particularly active in changing its rules regarding bill passage. Over time, the bar has been lowered from 2/3, to 60, to the 'reconciliation' 50. Such actions suggest movement toward easing the requirements for interest groups (party or otherwise) to get bills passed.

I was somewhat surprised that the Founders did not specify legislative process in greater detail. After all, what's stopping a corrupt Congress from changing the rules, or from employing some chaotic process to achieve political objectives? (Nothing, as we're currently witnessing.) Perhaps the Founders thought that the people would view such maneuvering as illigitimate and push back--either by not complying with legislation or by 'voting the rascals out.' It remains to be seen whether we witness an expression of public rejection this time around.

However, I suspect that the primary reason that the Founders were comfortable with giving Congress carte blanche in legislative process was the check of judicial review. As conceived, the Court would scrutize the validity of output generated by the legistative (and executive) branches and discard laws that were inconsistent with the Constitution. The thought process may have been, "If Congress and the President utilize unreasonable process for generating law, then it will show in the legal output and the Courts will catch it."

Of course, the effectiveness of this thought process rests on the assumption of a disinterested Court, one that would use as the basis of its decisions the wording and original intent of the Constitution.

Could it not be argued that, if the Founders did not did not believe this, then weren't they wasting their time writing the Constitution as as they did?

The whole thing falls apart if you have an interested Court--which, btw, is something that some smart cookies foresaw before the Constitution was even ratified see here, here, and here for example).

Which explains why politicians in Washington conduct their present chaos with little fear of the Court.