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Founders would roll their eyes at Warren's filibuster claim

Founders would roll their eyes at Warren's filibuster claim
© Greg Nash

The Founders of the United States Constitution are often on the defensive these days among democratic socialists and liberals like Sen. Elizabeth WarrenElizabeth WarrenSchumer vows to advance two-pronged infrastructure plan next month Overnight Health Care: CDC panel meets on vaccines and heart inflammation | Health officials emphasize vaccine is safe | Judge rules Missouri doesn't have to implement Medicaid expansion Democrats urge Biden to extend moratorium on student loan payments MORE (D-Mass.). But that hasn’t deterred Warren from appealing to the Founders in her campaign to end the Senate filibuster. Those who drafted and ratified the Constitution, Sen. Warren told Axios, favored simple majority rule in both the House and Senate. The filibuster is thus a corruption of the Founders’ commitment to majority rule.

In fact, most of the men who participated in the drafting of the Constitution had reservations about majority rule. Nowhere in the original Constitution is majority rule mentioned, let alone recommended as an attribute of popular governance. Under the Constitution the majority rules by implication and out of pragmatic necessity. Majority rule is implied by express provision for super majorities for conviction in the case of impeachment, expulsion of members, overriding of presidential vetoes and amendment of the Constitution — as well as by provision for a vice presidential vote in the event of an even split in the Senate.

As a practical matter, majority rule is the only way for popular government to function effectively, but to avoid the tyranny of the majority, the Founders instituted various constraints on simple majority rule.

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Ratification of the Constitution required the agreement of at least nine of the 13 states, thus allowing states containing as little as 13 percent of the national population to nix the project. After ratification, states with only seven percent of the national population could defeat amendment. In the first Congress, senators representing as little as one-third of the national population could defeat legislation passed by the House. Presidential vetoes of Congressional enactments could be sustained by senators representing as little as 12 percent of the national population. These were not provisions instituted by enthusiastic advocates of majority rule.

Federalism and the enumeration of national powers, separation of powers with judicial review of legislative and executive actions, a bicameral legislature and explicit guarantees of individual liberty followed by the Bill of Rights all served to limit majority rule. Had they thought of it, the Founders might well have included something resembling the filibuster in Article I. They did authorize each house to “determine the Rules of its Proceedings” and one such rule that has served the Founders’ purposes is the filibuster.

On other issues Sen. Warren might argue that we cannot be beholden to rules and practices enacted for a different time just because the Founders thought them wise. To be sure, we must adapt our institutions to circumstances the Founders could not have imagined — But the circumstances we face today are exactly those feared by the founding generation. Both parties have embraced a winner-takes-all, we won you lost, understanding of democracy. When Republicans controlled the Senate during the Obama administration, they stymied every Democratic initiative because they had the votes. Today, with the narrowest margin possible in a divided Senate, Democrats seek to impose their agenda on a similarly divided nation. The filibuster is the only thing that stands in their way.

In Federalist 10, James Madison warned of factions “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

“If a faction consists of less than a majority,” wrote Madison, “relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.” But “when a majority is included in a faction, the form of popular government . . . enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”

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A Senate equally divided between Republicans and Democrats should instill humility in both parties. But as the Founders understood, passion and interest have the opposite effect.

In the name of democracy, Democrats seek to impose their will with only the slim margin of the vice president’s tie-breaking vote — not what the Founders envisioned.

“To secure the public good and private rights against the danger of . . . [majority] faction, and at the same time to preserve the spirit and the form of popular government” wrote Madison, “is then the great object to which our inquiries are directed.”

Contrary to Sen. Warren’s suggestion that the filibuster counters the Founders’ belief in majority rule, Madison would likely think it a brilliant innovation for preventing majority tyranny and preserving the spirit and form of popular government.

James L. Huffman is a professor of law and the former dean of Lewis & Clark Law School in Portland, Ore. He was the Republican nominee in the 2010 U.S. Senate election in Oregon. Follow him on Twitter @JamesHu41086899.