Alexander Hamilton on the filibuster: “[I]ts real operation is 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.”
— Laurence Tribe (@tribelaw) March 21, 2021
That's perfect, I thought, but of course the filibuster hadn't been invented yet—what was Hamilton actually talking about? So I asked Dr. Google, and what I got was the single most useful comment on the Federalist Papers I've ever read, from The New Yorker's Hendrik Hertzberg, July 2013:
The Federalist Papers—so often quoted to rationalize governmental stasis and congressional gridlock—are almost always treated as secular scripture. They’re not. They’re newspaper op-ed pieces, written in haste to sell a particular set of compromises, some of which their authors had adamantly opposed and accepted only with the greatest reluctance.
For example, James Madison and Alexander Hamilton both hated the so-called equality of the states in the Senate. They thought it was absurd and offensive that flyspecks like Rhode Island and Delaware should have equal weight in the upper house with colossi like Virginia and Pennsylvania. But when it fell to them to sell the sausage, they assumed, no doubt correctly, that they had to come up with all sorts of high-minded reasons why every link was lip-smackingly good. They couldn’t very well tell the truth, which was that it was an absolute deal-breaker for the two or three least populous states. Rhode Island even tiptoed toward treason, threatening to quit the United States altogether and seek the protection of some European power if they didn’t get their way.
The Federalist Papers should be approached with especial caution when the authors are defending the more sordid provisions of the proposed Constitution, such as the Electoral College, the three-fifths rule, and the aforementioned malapportionment of the Senate. But when they assess the then existing constitution—the Articles of Confederation, which the new compact would replace—they drop the weaselly shilly-shallying and tell it like they really think it is.
For instance, the bit Tribe quotes in the tweet, which was also the bit Hertzberg was exercised with, from Federalist 22, which starts out with a furious dunk on the Articles for failing to give the central government any power to regulate commerce, which made it unable for the United States to work up any kind of trade agreement with their menacing parent across the Atlantic, and rendered them as helpless as the Holy Roman Empire, which was not a country at all:
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. "The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.''
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| Hamilton is quoting, and probably directly translating himself, from the Encyclopédie ou dictionnaire raisonné des sciences, des arts, et des métiers, vol. 5, 1755, article "Empire". |
As I've often said, Madison and Hamilton were united in trying to furnish the unruly states with a powerful central government representing the majority of the population rather than the majority of the statehouses—exactly the opposite of what rightwing "federalists" of today support—treating the 13 states as 13 equal sovereigns jockeying for position led to "a system of imbeclity in the Union, and of inequality and injustice among the members."
The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality.
Political realities forced the federalists of 1787 to accept the idiocy of a Senate in which Delaware's 59,000 people weighed the same in the Upper House as Virginia's 748,000 or Pennsylvania's 434,000 (the difference between Virginia and Pennsylvania was, of course, almost entirely enslaved people, 39% of Virginia's population and 1% of Pennsylvania's), so they came up with rationalizations for it, like all that nonsense about pouring your coffee into the saucer (who does that?). And they did it very well, but it was dirty work, as Hertzberg says, and there's no reason for treating what they wrote as sacred scriptures and interrogating them with what I call the Scalian Hermeneutic, divorced from the hot political combat in the midst of which they were drafted.
But the filibuster rule requiring a yes vote from two thirds of the senators (three fifths, or 60 votes, after a 1975 reform) to cut off debate and allow a law ("most wholesome and necessary for the public good") to be passed is exactly what exasperated Hamilton beyond bearing.
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| US population by state, 1790, via Wikipedia. |
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