Federalist 10 and the Filibuster

For over 200 years the Federalist papers have been an important tool for legal scholars studying the Constitution and the thinking of the authors at the time of its writing. These “papers” were essentially “op-eds” published in various venues, used by the writers of the Constitution to sell the value of what they’d created to the American public. Originalists find them invaluable, but legal minds of all sorts have found them useful in clarifying the underlying debates and intent of various aspects of our seminal document. Federalist 10, in particular, written by James Madison, has loomed large in shaping our understanding of the uses and limits of democratic majority rule in the minds of our founders. For many conservative thinkers it’s second in importance only to the Constitution itself and, perhaps, the Declaration of Independence. But there’s a problem in some of those interpretations and it’s one we need to discuss.

Federalist 10 actually has a very specific focus, highlighted in its opening sentence — how to “break and control the violence of faction.” The document goes on to define what a “faction” is for the purposes of its scope. Specifically:

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion or interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” (Italics added)

Let’s pause on that for a moment and translate it into the realm of our current sociopolitical conflict. Clearly, by this definition, QAnon is a “faction” as defined by Federalist 10, and the defining purpose of that paper is to inform us of how the founders felt we should use the Constitution to “break and control the violence” of that faction, of QAnon. Similarly, post the events of 1/6/2021, we must see the MAGA movement as another, larger faction, consisting of a “number of citizens” who are “actuated by some common impulse of passion… adverse to the rights of other citizens…” This latter point of scope can also be found in the very title of Federalist 10 — “… The union as a safeguard against domestic faction and insurrection.” So, while many conservatives might object, Federalist 10 is quite clearly aimed at helping us understand how the founders felt we should deal with the prominent issues of our current day, specifically, how we should use the political and legal structures they created to “break and control the violence” of QAnon and MAGA.

So, what does Mr. Madison offer? He starts by asking whether it is possible to construct a social contract in which the emergence of factions simply does not happen. After a short argument he concludes it is not, making clear he felt the emergence and growth of factions, like QAnon and MAGA, was simply an inevitable aspect of human nature. This therefore heightens the urgency of finding means to contain these inescapable events and to “break or control” their violence.

Having established these points, Federalist 10 then offers an incredibly important paragraph. He segments the challenge of factions into those that “…consists of less than a majority…” and those where “…a majority is included…” In other words, what do we do if the faction whose passions are “adverse to the rights of other citizens” is a minority or a majority. Within the first two sentences of this paragraph Madison quite explicitly informs us of what he felt we should do if such a faction was a minority of the public. The rest of the paper goes into elaborate discussion of what we should do if the faction represents a majority and it is in those points that conservatives wallow in depth. In the process, they leave behind those first two critical sentences. Here they are:

“If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse society; but it will be unable to mask its violence under the forms of the Constitution.”

In other words, we the founders have provided significant power to those representatives elected through democratic majority and if some minority faction seeks to hurt other citizens or damage the public as a whole, use that power to squash their efforts. Do not pass Go, do not collect $200. Squash it. And, yes there will be the inevitable caterwauling, posturing and complaints, but do not hesitate to use your majority to protect the republic from these dangerous and “sinister” actors.

Branching back to our current conflicts, the interpretation is clear. QAnon and MAGA are both minority factions, and the servile Republican Senators who support these factions represent at least 40 million fewer citizens than the Democrats who seek to protect the republic from the violence of those factions. James Madison was clear. He spent no more than two sentences on the topic because it was simple. Use the majority power granted through the constitution to squash that nonsense.

The relatively modern usage of the filibuster is clearly at odds with this intent. As we will see, many modern customs have run afoul of the founders’ intent. Those who fear that abandoning the filibuster will leave the country vulnerable to factious behavior by those in the majority, by the second class of faction that Madison warned about, need to heed the rest of his observations and advice in Federalist 10.

It’s important to note here that within the logical structure offered by Madison we’re not discussing situations where a majority is seeking some sort of policy goal that might be “good” or “bad” for a particular group. We’re focused on situations where a majority is seeking to impose policies that will be specifically “adverse to the rights” of other citizens and/or the public as a whole. This is obviously subject to interpretation and can be nuanced so an example of the challenge may be helpful.

One of the topics of debate that featured prominently in the Democratic primaries could easily develop into either a healthy public policy debate of the kinds Madison saw as desirable, or it could turn into precisely the sort of factious behavior he sought to avoid. The topic is a potential increase in our top marginal tax rates and the creation of a new wealth tax targeted at the top 1%. There has been considerable “stick it to the rich” propaganda and demagoguery from many prominent Democrats that falls into the category of Madison’s factious behavior every bit as much as the Qanon and MAGA crowd. It’s less overtly violent, but it’s clearly and intentionally positioned as a policy “adverse to the rights” of some citizens with that harm being used explicitly to arouse the “impulse of passion.”

On the other hand, precisely the same potential policies have been suggested by myself in my book The Fifth Paradigm, as well as many other careful observers of our current tax structure. The specific logic that led to my conclusions are spelled out in my book along with the rationale for both framing and bounding a potential debate. While it may have detrimental effects to certain members of the populace that’s not necessarily obvious and it’s clearly not the motivating passion. Its framed as a debate about how best to tune our tax structure to harmonize with global norms and the interests of our overall society and economy. None of that is “window dressing.” That’s what it’s all about and the resulting construct, logic, and arguments are vastly different from the “tax the rich” populists.

Given that example, how do Madison’s thoughts help us navigate between these, distinguish one from the other and simultaneously enable the constructive debate we need while minimizing the harmful effects of the factious debate Madison knew to be inevitable?

Madison relied on the combination of two factors that together he felt would create a political environment conducive to achieving those objectives. The first is the empowering of elected officials acting as representatives of their specific electorate, rather than a direct vote of the people. The second was the increased scale and resulting diversity of perspective attainable both through the representative construct and by emphasizing the use of national representatives rather than state or local representatives. Let’s look at each of those.

Madison believed that elected representatives were simply more likely to be thoughtful people who operate in a thoughtful way than the general “man in the street.” He further felt those representatives would reflect the diversity of perspectives found across their constituents rather than solely their own narrow self-interest. He was not naïve that unscrupulous operatives would emerge. He specifically asserts, “Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption or by other means first obtain the suffrages, and then betray the interests, of the people.” His response to this threat was to assert that the danger it posed, and the risk of its occurrence were highly dependent on the scale of the electorate. A small-scale group, like a state or district, might be at high risk of the emergence of such individuals, but the risk that posed to the overall union was small. In contrast, he asserts, the odds of effectively assembling a majority behind such a scheme at a national scale were small even if the danger such an event posed to the union might be considerable.

In other words, he fully recognized we would face politicians like Marjorie Taylor Greene or Devin Nunes but felt the damage they could do to the union was small. However, while he recognized the danger of someone like Trump he thought the likelihood of such an individual succeeding at the national scale was slim. Frankly, right up until election evening in 2016, I would have agreed with him.

It’s also important to highlight just how important diversity is throughout his argument. It is the diversity of perspective and interests more than anything else that provides his belief in the underlying strength of the system he and his counterparts created. The larger the scale of the electorate the broader the range of perspectives and the less likely it becomes for any majority to form that is solely motivated by the “impulse of passion” to take actions that are “adverse to the rights of other citizens.” As noted earlier, he knows those will arise, but is counting on the vast majority of those occurrences to be either limited to minorities of the electorate or limited to specific localities or states.

It is that same diversity that is so celebrated in modern sexual and racial leadership training programs. As those programs point out, and as Madison knew quite well, the inclusion of a broader range of perspectives almost always leads to consideration of broader possible policies and eventually to better decisions. Mr. Madison might not have realized how important those specific racial and sexual perspectives were to the society as a whole, but he did know that embracing diversity was essential to good government in general, and particularly for a democratic republic.

Here we encounter the next of the modern governing principles that runs counter to the intent of the founders — the so-called Hastert rule, originally followed by Newt Gingrich, embodied in Republican governance behaviors ever since, and never more so than by Mitch McConnell. This rule involves refusing to bring any legislation to a vote, unless the majority of the Republican representatives agree with the legislation, even if the majority of the chamber as a whole would readily pass the bills.

This behavior is the opposite of the healthy and diverse debate Madison counted on for good governance and the avoidance of factious behavior. In fact, it directly subverts those principles. The Senate, in particular, which was once known as the “greatest deliberative body in the world,” has become a rubber stamp to the interests of one, narrowly minded politician, Mitch McConnell. That’s the exact opposite of what Madison intended.

The near monolithic behavior of the modern Republican party is in contrast to its own history as well as the rambunctious and constantly squabbling Democratic party. It’s the latter that Madison envisioned and counted on to navigate the kinds of nuanced issues I described above around taxes. When Speaker Pelosi seeks to squelch those voices or marginalize them through poor committee assignments she is imitating the bad behaviors of her Republican counterparts not the vibrancy and diversity of perspective encompassed by her party and the people they represent.

A Senate or Congress that prided itself as a “great deliberative body” is precisely the forum Madison thought the nation needed to handle my tax example and that he and his fellow founders felt they had produced. Whether he was right is certainly debatable, but we have with equal certainty strayed far from his original intent. If we are to return to that ideal we must abolish the filibuster, actively use majorities when necessary to squelch harmful factions, marginalize the inevitable kooks that arise from local politics and embrace the spirit of genuine debate to distinguish between real policy differences and those caught in an “impulse of passion” that are aimed simply to be “adverse to the rights of other citizens.”

None of that is what most commentators regard as “bipartisanship.” However, I do believe it’s what President Biden seeks with his fond remembrance and deep respect for what we as a nation, with all our spectacular diversity, are capable of achieving. In that spirit, eliminating the filibuster is a critical step towards the form of unity Biden seeks to lead and that our founders intended.