January 29, 2010

The Federalist and the Filibuster

When talking about the filibuster, it should be noted that the Articles of Confederation, which preceded the Constitution, were eventually thrown out in part because it had a supermajority requirement in order for Congress to do anything. Alexander Hamilton excoriated the defenders of this practice in Federalist 22:
To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. [...] The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.
Hamilton obviously had in mind war or insurrection when talking about emergencies, but one could argue that fiscal crises, from ballooning health care costs to California-style budget problems, also qualify.

Hamilton also attacked the Articles of Confederation for their undemocratic character, as members of Congress were apportioned on the basis of states, not population. But of course, the only way to get the Constitution ratified was to have a state-based legislature, along with a population-based one. So now we have a Senate that, over the years, has become increasingly captive to a supermajority requirement. It's like the Articles of Confederation had never even been repealed.

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