Hamilton and the Filibuster

Changing the rules of the filibuster has again come front and center, with various prominent Democratic senators calling for a change in the Senate procedural rules to make it more difficult for Senators to invoke the filibuster. Of course, the filibuster as we know it today, was not part of the structure of the early constitutional government. However, some of Hamilton’s work seems to anticipate the current use of the filibuster as a purely partisan tool to increase gridlock. In Federalist No. 22, Hamilton addressed what he saw as a fundamental problem of the government under the Articles of Confederation- that smaller states had the ability to block legislation.

But this is not all: what at first sight may seem a remedy, is, in reality, a poison. 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. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single veto has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. 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.

It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, as well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Hamilton was a dedicated supporter of protecting minority rights, even when his causes were deeply unpopular, as with his protection of Tories after the Revolution. However, he understood that a system that essentially gave a small fraction of the population the ability to block important decisions was unsustainable. Abuse of the filibuster by either party to gridlock government reduces our system to “a state of inaction” that Hamilton warned was unsustainable.

And, if you needed more reasons to dislike the filibuster…Aaron Burr laid the foundations for it before it became part of Senate strategy in the 1830s and 1840s.

For further reading on Hamilton and the filibuster, check out Hendrik Hertzberg’s 2011 piece in the New Yorker.

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