A lot of the focus of English and American studies into the evolution of constitutional governance naturally focuses on England.  The Magna Carta with its colorful villain in King John is too hard to pass up.  But the English Kings were not the only monarchs to find their power checked.  Various forms of parliaments rose up across Europe as monarchs haggled with their merchants and barons for funds while trying to avoid rebellion.

Eastern Europe was not immune to such trends.  Seven years after the Magna Carta, the Hungarian nobility forced their extravagant King Andrew II to issue the Golden Bull granting the nobility greater powers.

A series of dynastic shifts in the three premier East European monarchies of Bohemia (Přemyslid to Luxembourg to Jagiellon) , Hungary (Árpád to Angevin to Luxembourg) and Poland (Piast to Angevin to Jagiellon) caused a steady shift of royal power to the nobility (and as the list shows the three countries imported each others princes very often).  Each new foreign dynasty brought with it new privileges to keep the nobility happy.

However in the 16th century this pattern breaks.  Bohemia and Hungary fell to the Hapsburgs (who also married themselves into the crowns of of Spain,. (briefly Portugal and England), Naples, Milan, Sicily and the Netherlands).  After the Thirty Years War the ramshackle Hapsburg monarchy pulled back many of the privileges granted to the nobility.  Poland went in a different direction.  Faced with the impending death of the last male Jagiellon the magnates of Poland-Lithuania instituted an elective monarchy.

While the crown remained in the hands of female line descendants of the Jagiellons until 1660, the elective principle and the haggling by prospective monarchs for support took full control.    It was around this time that the legislative innovation that crippled Polish government for the next century was introduced – the Liberium Veto.

This measure allowed a single member of the Polish Sejm (parliament) to end the session and nullify all legislation by shouting Nie pozwalam! (I do not allow!).  Somehow this pernicious measure was allowed to continue.  Egged on with bribes from neighboring Prussia and Russia who were only too happy to see a weakened crumbling Poland and delusional deputies who considered this privilege as the hallmark of liberty, attempts at reform were thwarted for a century.  It wasn’t until 1764 that someone utilized a technicality to bypass this measure.  But by then it was too late.  In three successive partitions (1772, 1793, and 1795), Poland was wiped off the European map.

Obviously the filibuster does not even come close to the liberium veto.  But when a minority uses it of pretty much every single piece of legislation (including for example overwhelmingly popular bills like the military budget), it is hard to always appreciate the difference.  Not surprisingly calls to abolish it are rising.

In some ways the Democrats conversion on the filibuster (and boy did they love it when George W. Bush was President) mirrors their conversion on the advisability of the Independent Counsel Act.  When independent counsels targeted Republican Administrations all was fine.  It took one out of control independent counsel who acted like a heat seeking missile aimed at Bill Clinton’s rear end for the Democrats to switch sides on the issue.

The Republicans do risk overplaying their hand on this issue (they used more than 100 of them last year).  There is no constitutional right to a filibuster and the repeated use on every single item (which will likely increase with Scott Brown’s election) will increase the Democrats incentive to explore procedural technicalities like reconciliation to force a bill to a vote or even the nuclear option previously considered by the Bush Administration (which will be really hard for the Republicans to oppose since they drafted it).

The realization that they will one day return to the minority likely makes some Democrats squeamish on the issue.  But the legislative process in the Senate is currently broken on many issues (and don’t even get me started on the issue of anonymous Senatorial holds which have made the appointment of the President’s cabinet a travesty).  More appropriate protections for the minority (like giving them the ability to delay but not eternally block legislation) can be considered.  Otherwise ridiculous headlines like “Scott Brown Wins Mass. Race, Giving GOP 41-59 Majority in the Senate” will continue to proliferate around our broken legislative process.

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