Opponents of the Senate filibuster often cite Alexander Hamilton’s argument in Federalist 22, first published on this date in 1787, that the “fundamental maxim of republican government…requires that the sense of the majority should prevail.”
Indicting the filibuster on republican grounds is based on the implicit assumption that the Constitution created a majority-rule political system.
But this assumption is plainly contradicted by the Constitution’s counter-majoritarian features, such as the Senate and the role of the Electoral College in selecting the President. Specifically, equal representation in the Senate permits a majority of senators, potentially representing a minority of the electorate, to pass legislation and confirm presidential nominations.
Given this, it is entirely possible to imagine a scenario where a minority in the Senate, representing a majority of the electorate, utilizes the filibuster to thwart a majority of the Senate, representing a minority of the electorate.
Those who cite Federalist 22 in making a case against the filibuster also usually fail to put the essay in its proper context. In Federalist 22, Hamilton offers a critique of the Articles of Confederation. Hamilton is not offering an explanation or a defense of the Constitution and its many provisions, including the Senate and the Electoral College. That would come later.
When considered out of context, the arguments Hamilton makes against the Articles of Conference in Federalist 22 contradicts those he would make supporting the Constitution in later essays.
For example, Hamilton asserts that “the right of equal suffrage among the States” in the Articles of Confederation cannot be justified on republican grounds. The argument that “sovereigns are equal, and that a majority of the votes of the states will be a majority” was instead “logical legerdemain,” disproven by “plain suggestions of justice and commonsense.” Hamilton observed, “it may happen that this majority of states is a small minority of the people of America.”
Yet subsequent essays of the Federalist, including those written by Hamilton himself, make the case for the Senate—despite the fact that the institution’s equal representation allows for the possibility of a majority of the states passing legislation and confirming nominations when that majority potentially represents a minority of the American people. Similarly, it is entirely permissible under the Constitution for a president to be elected with the support of a minority of the national electorate but a majority of the Electoral College.
The Senate and the Electoral College suggest that the Constitution was not intended to create a purely majority-rule system. As such, opponents of the filibuster should acknowledge that Hamilton aimed his arguments in Federalist 22 at the Articles of Confederation and the Confederal Congress.
Efforts to eliminate the filibuster should not be based on appeals to the Constitution or the republican principle of majority rule. The case for ending the ability of a minority to block votes on the Senate floor rests not on constitutional grounds that such filibusters are illegitimate, but rather on the ability of a simple majority to determine the institution’s rules.
Whether or not a Senate majority ought to act on its ability to eliminate the filibuster is thus a political and prudential question, not a constitutional one.