As the Senate filibuster braces to receive what may be a mortal wound via the invocation of the “nuclear option” on executive nominees, there are at least 413 reasons to wish the dilatory tactic ill—and one compelling constitutional reason to keep it. The former is the number of times cloture motions to end debate have been filed since 2007 alone, a measure of the collapse of comity in an institution that used to run on that quality. The latter is that the filibuster may—or at least can—now function as a constitutional prosthetic, performing the seasoning function the Senate was initially intended to fulfill but which the frenzied pace of modern life has subsumed.
Why are we still talking about federalism in 2012? Wasn’t it mortally wounded with the passage of the 16th and the 17th Amendments? At least, that is what I hear a lot of Conservatives moaning about. Surprisingly, then, we are still talking about federalism. And, I trust, doing something about it. Here is a preliminary answer to the question about the fate of federalism: federalism is a conservative principle that over the last 100 years has restrained the development of the Administrative State. My mind wanders to the Progressives with their national prohibition of intoxicating liquors, FDR’s New Deal spiritual crusade against Mammon and “the money changers in the temple,” LBJ’s Great Society “war on poverty,” and our current national debate over individual health care coverage. These various Prohibitionists are very spiritual and remind me of the spiritual Colonialists and their love of good government to make us good people. Good government is also big government.