As I mentioned in my last post, Professor Chemerinsky’s description of the 1975 Senate vote in sustain Majority Leader Mike Mansfield’s point of order changed slightly from his 1997 article to his 2005 article. In the former he said that the vote “establish[ed] that a majority of the Senate would abide by the supermajority requirements for amending Senate rules,” while in the latter he said that the vote “establish[ed] that the majority of the Senate at that time favored the supermajority requirement for amending the Senate Rules.”
What is interesting is that neither statement describes the Senate’s vote as a legal ruling. According to Vice President Rockefeller’s ruling on Mansfield’s point of order, the question presented to the Senate was whether invoking cloture on Senator Mondale’s motion to amend the rules was subject to a supermajority vote under Rule XXII, as Mansfield contended, or whether a simple majority had the constitutional authority to invoke cloture, as supporters of Mondale’s motion argued. By upholding Mansfield’s point of order, the Senate clearly understood it was resolving this legal question.
A lawyer (or Senate parliamentarian) might be expected to describe the Senate’s action something like this: “The Senate rejected a constitutional challenge to the continuing validity of Rule XXII as applied to a motion to amend the rules in a new Congress.” Or, as the late Senator Robert Byrd wrote in his history of the Senate: “by this action, as the Rules Committee’s published history stated, the Senate ‘erased the precedent of majority cloture established two weeks before, and reaffirmed the continuous nature of the Senate rules.’” See R. Arenberg & R. Dove, Defending the Filibuster 131 (2012).
To understand the difference between these types of statements and those made by Chemerinsky, one might consult the British legal philosopher H.L.A. Hart, who distinguishes between the “external” and “internal” points of view with regard to a legal system: “When a social group has certain rules of conduct, . . . it is possible to be concerned with the rules, either merely as an observer who does not himself accept them, or as a member of the group which accepts and uses them as guides to conduct.” H.L.A. Hart, The Concept of Law 89 (1961). Even within the external point of view, there are different gradations. For example, “the observer may, without accepting the rules himself, assert that the group accepts the rules, and thus may from outside refer to the way in which they are concerned with them from the internal point of view.” Id. (emphasis in original). Alternatively, the observer may be “content merely to record the regularities of observable behavior in which conformity with the rules partly consists and those further regularities, in the form of hostile reaction, reproofs or punishments, with which deviations from the rules are met.” Id.