Filibuster or No Filibuster is Not a Binary Choice

We’re now watching the final parts moving into place as two Senate Democrats making a unmovable stand in favor of preserving the filibuster. You can see our live-blogging of the nitty gritty details here. I want to return to a more general point. Filibuster or no filibuster is not a binary choice. The current filibuster is the product of an incremental evolution over many decades. To the extent it matters, the framers of the constitution never envisaged anything like it. We know this because they included a few special cases where a super-majority would be required – for treaties, for removal from office, etc. If they thought it should be required for ordinary legislation they would have said so. But again, it’s not a binary choice.