“But let us be clear: It is not fair to claim that the filibuster is a ‘relic of Jim Crow,’ either.”
y my lights, everyone—from the progressive left to the MAGA right—talking about the filibuster and the United States Senate itself is either ignorant of important historical facts or is misrepresenting them.
Let us set the record straight.
First, the United States Senate itself was not created for the explicit purpose of being “anti-majoritarian,” as the typically thoughtful editors of the Commentary magazine claimed on a recent podcast. Yes, when viewed from the perspective of the nation as a whole, the Senate’s equal state representational structure seems anti-majoritarian. But the fundamental point of the Senate was not to be anti-majoritarian. The point was to give equal representation to the states as separate political communities. Excuse the upcoming academic citations, but this is really important in the context of the filibuster debate. Here is the short of it:
As scholars such as Michael Klarman have pointed out, the Constitution of the United States drafted by the framers during the summer of 1787 was “stunningly nationalist.” Previously, the separate colonies-turned-states had governed themselves under the loosely knit Articles of Confederation. Even though the results were disastrous, Americans’ state-based political identities were still extremely strong; Americans were still wary of a powerful, cohesive central government. Americans identified with their states far more than they did with their young nation (the opposite is true today), and these state-based differences were overlaid with highly salient economic, moral, and religious differences. Rhode Islanders identified with Rhode Island, and South Carolinians identified with South Carolina. This helps explain why George Washington himself had to break up fights between New Englanders and Southerners during the Revolutionary War. The differences ran deep. The colonies-turned-states were the organic political communities of the day. The nation was very much a construct—flimsy, perhaps waiting to be founded.
So, the Senate was designed, in large part, to allay the fears of the small states—North and South alike—that this more robust federal government would swallow these states whole. The larger states would be protected because they would have the numbers to safeguard themselves in the federal Congress; however, the smaller states would be powerless without at least one body premised on the equal representation of states. Without such a body, quasi-foreign powers—the large states—could domineer the central government and, by extension, the smaller states. This was the point of the Senate: It soothed the worries of the small state delegates at the Convention.
It is essential to understand that the Senate was meant to give representation to states as distinct political bodies and not simply to thwart the will of majorities. Why? Because it helps us immunize ourselves to silly defenses of the filibuster.
As scholars ranging from the American Enterprise Institute’s Greg Weiner to Columbia Law School’s Jamal Greene have argued in various contexts, the Founders were largely majoritarians. That is why James Madison, in Federalist No. 58, wrote the following about a hypothetical supermajority requirement to pass normal legislation (à la the Senate filibuster):
“In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”
The core purpose of the Senate is not to be anti-majoritarian, so we cannot pretend that nakedly anti-majoritarian procedural mechanisms such as the filibuster align with the core rationale of having a Senate in the first place.
But let us be clear: It is not fair to claim that the filibuster is a “relic of Jim Crow,” either. Yes, as leading historians such as Princeton University’s Kevin Kruse have pointed out, the filibuster has been used and abused time and time again to uphold white supremacy. But it is a procedural tool, which has been leveraged by everybody and his brother in the Senate in recent years to thwart the other side’s agenda—whatever it may be. Indeed, Senate Democrats routinely made use of the filibuster, while President Donald Trump was in office. It is a tool in the legislative toolbox. We should debate whether it is a good, worthwhile tool on its own terms.
Like the Senate, the filibuster has a complex history that is not inherently racist or evil but, rather, messy. And like much of our politics, its reform, continuance, or death is up to us in the here and now. We ought to weigh the arguments for and against the filibuster on their merits. There are pros, and there are cons. Thoughtful politicians like Senator Ben Sasse of Nebraska have mounted persuasive defenses of it, and astute analysts like Ezra Klein have adeptly laid out the case for killing it or, at least, reforming it. We, the people, and our Senators have to decide where we fall on this crucial question.
In formulating our answer, we should not be distracted by unfounded historical arguments about the filibuster or the Senate—whether they come from the Right or the Left. We have to face up to the real merits and demerits of the Senate and the filibuster on their own terms.
Trumped up historical charges or sleights of hand will not solve this dispute for us. Only good-faith argument, reasoned debate, and reflection can.
Thomas Koenig is a recent Princeton University graduate who will be attending Harvard Law School in the fall of 2021. Follow him on Twitter @TomsTakes98.