Judd Gregg, Not A Constitutional Historian

by Jonathan Bernstein

I disagree with Matt Yglesias about whether majoritarian democracy is a good thing, but he's absolutely correct that it's silly to say (as Judd Gregg does at the moment) that the Framers wanted supermajority requirements in the Senate.  It is true that the structure of the Senate (relatively small number of Senators, relatively large and therefore heterogeneous constituencies makes it likely that Senators will be inclined to prefer rules that give each Senator quite a bit of negotiating leverage, while the House (many more Members, relatively homogeneous districts) is likely to favor rules that involve individual Members trading their negotiating leverage on most issues for extra influence over a small number of issues.  But to extrapolate from that to the idea that the Senate was intended to have a 60 vote filibuster rule is...well, Yglesias calls it abject nonsense, and that seems fair to me.

I think that case that the filibuster is unconstitutional is very weak, but the case that supermajorities are somehow required by the Constitution is even weaker.  They are a consequence of Constitutional design, but not one that the Framers as far as I know, wanted or predicted. And they obviously did not want or predict partisan filibusters!

(Yglesias is correct about the Framers and modern parliamentary systems, too.  But the United States doesn't have a "presidential" system; it has a system of separated institutions sharing powers, with a strong president and a transformative (bicameral) Congress and independent courts.  Generally, lumping the US with presidential systems tends to be misleading.  He's right that in the 20th century the US tended to encourage other nations to adopt parliamentary systems; whether that speaks to actual failures of the American government or a Brit-o-phile affectation common to the sorts of people who influence those decisions is, at best, an open question).