What would James Madison have thought of the filibuster?

What would James Madison have thought of the filibuster?

Greg Sargent — Read time: 4 minutes

With Sen. Joe Manchin III digging in behind his seemingly unshakable devotion to a minority veto over legislation in the Senate, the West Virginia Democrat committed a howler on Tuesday, claiming the filibuster goes back 232 years — meaning all the way back to the founding.

That’s not even remotely true. But regardless, it captures something essential about the position of filibuster defenders: that in some sense the filibuster is squarely in keeping with the vision of the Senate espoused by the framers.

By contrast, in his speech on Tuesday, President Biden called for a temporary suspension of the filibuster to pass voting rights protections. He cast abuse of the filibuster as an impediment to good government, and argued that this position is more consistent with restoring the Senate’s true institutional purpose.

An edited and condensed transcript of our conversation follows.

Greg Sargent: Joe Manchin just said we’ve had the filibuster “for 232 years,” and that this has made us exceptional. So let’s start with that.

Jack Rakove: Senator Manchin should know his history much better than he seems to. The history of the filibuster is a bit complicated. Most historians think its dominant moment really came in the 20th century, and its principal use was to protect the interests of Southern state segregationists against national legislation that would upset the fabric of white supremacy.

Sargent: That Manchin claim is a crude version of something you often hear from filibuster defenders: That it makes the Senate more functional, in keeping with the intentions of the founders for it to act as a deliberative check on impulsive legislation.

In your work, you trace James Madison’s arguments about the makeup of the Senate and find that claim to be pretty unsupportable.

Rakove: Madison certainly did want the Senate to act as a check on impulsive legislation. But he also wanted it to be a body that would reach decisions. The devices to protect the Senate would be to make it smaller to encourage serious deliberation, to have it elected on a different cycle than the House, and to give it certain additional powers that would turn senators into genuine statesmen.

Sargent: That doesn’t necessarily support the idea that he would have favored a supermajority requirement in order to act as that deliberative check.

Rakove: Madison was consistently a majoritarian. You needed supermajorities on particular issues — on treaties, on veto overrides, impeachment verdicts and constitutional amendments. But definitely not for ordinary legislation.

When this issue was debated at the constitutional convention, Madison went to some lengths to explain why, as much as he believed that the rights of minorities had to be respected, he didn’t want them to be able to block majoritarian decisions that had been properly debated.

Sargent: You underscore that point by often dwelling in your work on the fact that during debates over the Constitution, Madison argued against small states having equivalent representation in the Senate to large ones, and that he thought proportional representation would be more just.

Madison also envisioned a Senate that works well. As you write, Madison did envision the Senate as a check on reckless legislating, having experienced dysfunctional state legislatures. But you have debunked the idea that this meant he would have favored “obstruction” as the means to accomplish that, and instead saw quality legislators as the answer.

Rakove: It’s important to remember that the framers — the vast majority of them — and their Federalist supporters wanted a stronger national government. They didn’t want a national government that was dependent on the states, as the Continental Congress had been. They wanted the national government to be competent to the responsibilities it had to assume.

So the idea that their whole purpose in adopting the Constitution was to prevent “the tyranny of the majority” is a deeply problematic proposition. They wanted the national government to be able to legislate effectively.

Sargent: That gets to what seems like a fundamental confusion in many of our discussions of Madisonian democracy. Madison saw majorities as a potential threat to minority rights, and sought to limit what majorities could do as a result. But some take this to mean he favored anti-majoritarianism as the answer to the problem.

That ends up confusing checks and limits on what the majority can do, on one hand, with minority rule on the other — the idea that minorities can dictate overall outcomes to majorities.

Rakove: Madison was certainly sensitive to the idea that in a republic, as opposed to a monarchical regime, the rights we had to worry about most were the rights of minorities.

He did not believe in minority rule.

Sargent: What does Madison’s body of thought tell us about the current argument from some filibuster defenders in favor of a supermajority requirement for passing legislation?

Rakove: Madison would be dead-set opposed to it. I say that unequivocally. A lot of this runs back to Madison’s conviction that the two most fundamental errors the convention made were to have senators elected by the state legislatures, and, more important, to give the states an equal vote in the Senate.

Madison didn’t like the use of the term “democracy.” But Madison was a democrat in the modern sense of the term. He felt popular majorities in the end ought to rule.

He felt that the equal-state vote, which he detested, was as far as one should go to protect minority interests. To add further rules that would make it even more difficult for the Senate to reach majoritarian decisions — that was the opposite of what he had in mind back in 1787.