The Abominable Rules of the U.S. Senate

The U.S. Senate by virtue of the “great compromise” of 1787 is inherently undemocratic with every state having two Senators regardless of population. Given the addition of more states into the Union and the changes of population since then, the Senate is even more undemocratic today.

Piled on top of this institution is an arcane and even more undemocratic set of Senate rules which are not required by the Constitution and which we are hearing more about these days: cloture, reconciliation, the Byrd rule, etc. One of the spectacles in the last Congress was Senator Coburn’s “requiring” that Senator Sanders’ proposed amendment for a single payer system for health care be read aloud and thereby delaying real work by the Senate. Another in the last Congress was Senator Shelby’s “hold” on 90 or so nominees.

In short, the U.S. Senate rules are a major source of Americans’ frustration with our national government. I think they are unconstitutional in that they impose a de facto super majority requirement on nearly everything, far beyond the constitutional imposition of such a requirement. The Senate needs to wake up from its pompous meanderings! Change your rules that make the Senate an abomination!

At the start of this Congress there were modest changes to these Rules. But they were not enough. The Senate should operate by majority rule. The only exceptions should be when the Constitution requires a supermajority (two-thirds) vote for overriding a presidential veto or consenting to the ratification of treaties or for proposing constitutional amendments or for expelling a member.

Adventures of a History Detective

Ever since my high school days in the 1950’s, U.S. politics, law and history have fascinated me. From the start, I was passionate about civil liberties, especially freedom of speech.

Joe Welch & Joe McCarthy

This interest was sparked by watching the Army-McCarthy hearings on my parents’ new TV set in the spring of 1954. The hearings were high drama, and the lawyer for the Army, Joe Welch, was a charming Bostonian, so I thought. I was appalled by Senator Joseph McCarthy’s attacks on civil liberties and free speech and thrilled by Welch’s courageous defense against McCarthyism.

Three years later, in the fall of 1957, my freshman year at Grinnell College, I discovered that Welch in fact was from an even smaller Iowa town (Primghar) than mine (Perry) and that he was a Grinnell graduate, Class of 1914. I learned this when I heard Welch speak at the College’s Convocation “American Culture at Mid-Century.” But I was too timid as a first-semester freshman to speak to Welch directly.

Burling Library Grinnell College
Edward B. Burling

In 1959, the College’s new library was being built and was named “the Burling Library.” A substantial amount of the funds for the building was donated by another Grinnell graduate and lawyer from another small Iowa town (Eldora), Edward Burling (Class of 1890). While attending American University that Fall on the Washington Semester Program, I met Mr. Burling at his office to thank him for the new library. After an interesting conversation, he invited me to a Sunday afternoon at his cabin on the Potomac River. Little did I know at the time that such a Sunday afternoon had become a famous Washington institution. I do not recall our conversation that day, but I do remember how Burling, then 89 years old in a wool plaid shirt, vigorously chopped wood on a beautiful fall afternoon.

As I continued my education and started my own career as a lawyer, I had no time to do anything about my interest in these two men. But in the spring of 1982 I took a sabbatical leave from my law firm to teach a course about law at the College. In my spare time I examined materials about Welch and Burling in the College Archives. (See Post: A Sabbatical Leave from Lawyering (May 26, 2011).)

Somehow I learned that the Boston Public Library had a collection of Welch papers, and while on a business trip to Boston in 1985 I had spare time to examine those papers. This was my first digging into original historical documents, and I was thrilled to be touching and reading such documents and attempting to make sense of them. (This was more fun, I thought, than my more common project of reviewing documents produced by an adversary in a civil lawsuit by “A” against “B” to recover a substantial sum of money.) Among the interesting documents in the Welch collection were letters between Welch and Burling after the conclusion of the Army-McCarthy hearings that were discussed in my paper about Burling, which was excerpted in The Grinnell Magazine (Edward Burnham Burling: Grinnell’s Quiet Benefactor (Summer 2009)).

I returned to Boston in the summer of 1986 to attend the Harvard Law School’s Summer Program for Lawyers. While there, I visited the Boston offices of Hale and Dorr, Welch’s former law firm, and interviewed Fred Fisher, the lawyer who had been attacked by Senator McCarthy, and James St. Clair, the lawyer who assisted Welch in the Army-McCarthy hearings and who later represented President Nixon in the litigation over the White House tapes. I also searched the Harvard Law School Library and found references to Welch in some of its collections of papers regarding the Sacco-Vanzetti case, which was discussed in my paper about Welch, which also was excerpted in The Grinnell Magazine (Good Night, and Good Luck: The Movie’s Offstage Hero, Joseph Welch (Summer 2006)).

I also discovered in Harvard’s collection of the papers of Learned Hand, an eminent federal judge and one of my legal heroes, that he and Burling had been law school contemporaries and life-long friends. This spurred my interest in Burling as I read the extensive correspondence between them, another topic of my paper about Burling.

While in the Boston-area that summer I also visited the Kennedy Presidential Library, but failed to find any documents about Welch in the papers of Robert Kennedy, who had been a lawyer for the McCarthy committee in 1954. The time at the Library, however, was not wasted when I found oral history interview transcripts of two men that I knew.

  • Donald “Duke” Norberg had been the Chairman of Iowa’s Democratic Central Committee, for whom I had worked in the summer of 1960 on a Grinnell Program in Practical Politics grant. I fondly recall seeing then Senators John F. Kennedy and Lyndon Johnson in Des Moines to woo the Iowa delegates before the Los Angeles Democratic Party’s presidential nominating convention.
  • Frank Coffin had been a Democratic Congressman from Maine who was defeated in his run for Governor of Maine in 1960 because of the anti-Catholic vote prompted by JFK’s being the presidential candidate. Coffin recalled President Kennedy’s introducing him to Jackie Kennedy at an inaugural ball as the man whom Kennedy had pulled down to defeat. In the Kennedy Administration Coffin was in charge of the U.S. Agency for International Development and later was appointed as a judge on the U.S. Court of Appeals for the First Circuit. (I had met Coffin in the early 1980’s when we both were on the University of Chicago Law School’s Visiting Committee, and in 1984 Judge Coffin participated in a liberal arts seminar for lawyers that I organized at the College.)

When I returned those transcripts to the library desk, I noticed a transcript of an interview of Princess Grace of Monaco (Grace Kelly), and a brief glance revealed an account of her fatalistic view of history.

This research prompted a request to a law school classmate and friend at Covington & Burling, the Washington, D.C. law firm started by Mr. Burling, for additional information about him, and my friend sent me a copy of the firm’s history. I also have been assisted in my research by another Grinnellian, James Burling (Class of 1972), who is not related to “my” Burling, but who is a partner in Welch’s law firm, Hale and Dorr.When I retired from the active practice of law in the summer of 2001, one of my future projects was to review all of the information that I had gathered and write articles about the two gentlemen, and I mentioned this project in an essay about retirement that was posted on the Internet by another law school friend as part of materials for a lawyers’ seminar.

In 2005 I was inspired to finish these papers when I received a totally unexpected call from Professor Roger Newman, the biographer of Hugo Black and a member of the faculty of Columbia University. Newman said that he was the editor of the forthcoming Yale Biographic Dictionary of American Law and asked if I would be interested in writing short biographies of Welch and Burling for that book. Newman said he had discovered my interest in these men from the just mentioned essay on the Internet. I said that I would be glad to do so and retrieved my materials, did additional research and wrote the two 500-word biographies. (This Biographic Dictionary, which was published in 2009 by Yale University Press, was the first single-volume containing concise biographies of the most eminent men and women in the history of American law who have devised, replenished, expounded, and explained law. See Yale University Press, The Yale Biographical Dictionary of American Law (ISBN 978-0-300-11300-6), http://yalepress.yale.edu/yupbooks/book.asp?isbn=9780300113006.)

These sketches, however, barely scratched the surface of what I wanted to say about Welch and Burling. As a result, I did additional research, including examination of several collections of original papers at the Library of Congress. While I was spooling through microfilm of the papers of Felix Frankfurter, I came across his file of correspondence with Albert Einstein. I paused and saw Einstein letters auf Deutsch in small, precise handwriting.

Two other subjects of my history detective adventures are more personal. My maternal great-great grandfather, Charles Edwin Brown, was a Baptist missionary to the Iowa Territory and then the State of Iowa from 1842 until the late 1800’s. One of his sons and my great-uncle, William Carlos or “W.C.” Brown, started working on the railroad as a section hand at age 16 and worked his way up the corporate ladders to become president of the New York Central Railroad in the early 20th century. I have done some research on their lives and written essays about them.

I have not been in a position to even attempt to research all the original and secondary sources and to write complete biographies of these men, but my work on much shorter articles made me realize and appreciate the work that has to be done to produce a major biography of a historical figure such as the one of Andrew Carnegie by my Grinnell History Professor, Joe Wall.

Although I was a history major at the College, I did not do any independent historical research or paper and instead obtained a good background in European and American history. Because I did not do any independent paper, I did not learn historical research methodology at the College, a lacuna I now regret.

Instead, I learned such techniques from being a litigation lawyer. Defining the problem or issue was the first task. You then develop an ever evolving plan to gather relevant evidence or original sources. You start with the documents and interviews of your client. They suggest other possible sources. Library (and now Internet) research provides more information and leads. They are pursued with other research and interviews using publicly available information plus information available through the formal discovery process under the rules of civil procedure. The lawyer also has the right and opportunity to compel witnesses to be examined under oath for further information. (Historians do not have this advantage.) All of the resulting information has to be evaluated for admissibility into evidence and to be synthesized into a hopefully persuasive story as to why your client should win the case.

I enjoy this investigative process, whether as a lawyer or as a history detective. There is the thrill of  the hunt for original papers about my subjects and being so easily diverted by coming across things like the Frankfurter-Einstein correspondence and the Grace Kelly oral history interview. I also enjoy the challenge of putting all of the pieces of research into a good story and writing it all down on paper. Through all of this lies an interest in finding out what happened.

My work as a lawyer and as a history detective has made me somewhat nostalgic for one “road not taken:” continuing my work as a history major into graduate school and becoming a historian.

 

My Political Philosophy

I am a liberal Democrat in the U.S. political context. In the words of the Preamble to the U.S. Constitution, I believe that our federal government was created and continues to exist so that “We the People of the United States [can] . . . form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty.”

My overall political philosophy also draws sustenance from our 1776 Declaration of Independence: “all men [and women] are created equal: that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Similar language is found in Article 1 of the 1948 Universal Declaration of Human Rights from the U.N. General Assembly: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”[1]

Taxes are, as Supreme Court Justice Oliver Wendell Holmes said, “what we pay for civilized society.”[2] Yet, according to another great federal judge, Learned Hand,

“Anyone may arrange his affairs so that his taxes shall be as low as
possible; he is not bound to choose that pattern which best pays the
treasury. There is not even a patriotic duty to increase one’s taxes.
Over and over again the Courts have said that there is nothing sinister
in so arranging affairs as to keep taxes as low as possible. Everyone
does it, rich and poor alike and all do right, for nobody owes any
public duty to pay more than the law demands.”[3]

In short, every citizen has a patriotic duty to pay the taxes that are imposed by the laws.

This political philosophy recognizes that there always are things that can be and should be improved in our society and that this requires constant attention to the way things are and what they could be. This approach runs the risk of overestimating the benefits of change and underestimating the costs of change.

Genuine conservatives, in my opinion, are skeptical of grandiose theories and applying them to a society. This is an important and legitimate point of view. This approach, however, runs the risk of underestimating the benefits of change and overestimating its costs. At its extreme, this can be a Panglossian “this is the best of all possible worlds.”


[2] Compania General De Tabacos De Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting).

[3] Gregory v. Helvering, 69 F.2d 809, 810 (2d Cir. 1934), aff’d, 293 U.S. 465 (1935).

Getting Started

In my 70-plus years I have developed strong interests in U.S. and international law, politics, economics and history.

This is due to an excellent education at Grinnell College and the Universities of Oxford and Chicago, 35 years of practicing law in New York City and Minneapolis, being a pro bono lawyer for asylum seekers, teaching international human rights law, international travel and wide reading. These activities by themselves provide additional subjects for commentaries.

These interests also have been furthered by a renewed Christian faith and an active membership in Minneapolis’ Westminster Presbyterian Church. This faith and learning about other religious traditions are other major interests of mine.

As will become apparent in subsequent postings, I have particular interests in certain legal topics–refugee and asylum law; litigation in U.S. federal courts under the Alien Tort Statute that covers lawsuits by foreigners for human rights abuses; U.S. constitutional law; and alternative dispute resolution– and in certain countries–Great Britain, El Salvador, Ecuador, Cuba, Brazil and Cameroon.

I already have written a lot on these subjects and have decided to share these writings on this blog. I also will comment on other issues as they arise. Many of these writings will be longer than a typical blog. In subsequent postings I will describe my political philosophy and Christian faith that I hope is evident in my writings.