Thomas Koenig has published an essay at Merion West that deals with a book of mine on Madison, but that pivots to super-majority requirements like the filibuster. He raises important questions that deserve attention, including whether unreasonable obstacles to legislating divert policy disputes to the courts. The specific obstacle that concerns Koenig’s essay most is the filibuster. My own view is that Madison, a ready compromiser who was nonetheless all but ready to walk out of the Constitutional Convention over the “confessedly unjust” equality of state representation in the Senate, was too majoritarian to countenance the filibuster. That does not mean the filibuster cannot serve Madisonian purposes, including deliberation and moderation. But given its weaponization over the last decade, it is hard to make the case that it does so today.
What may be most striking about the abuse of the filibuster is how long it took to become a de facto super-majority requirement for virtually all legislation of any substance or controversy. That underscores the extent to which the Senate has always subsisted less on procedure than on institutional culture. Those inform one another, of course. But procedures depend on institutional norms about their use. Even a curtailed filibuster is open to abuse as long as the Senate mimics the more rigidly partisan culture of the House.
For Madison, the most significant fact about senators was the length of their terms, which allowed adequate time for passions to cool. That enabled senators to take unpopular stands and still recover before the next election. (Despite sentimentalists who equate the repeal of the Seventeenth Amendment with the restoration of constitutional innocence, I would argue that six-year terms were more important to him than election by state legislatures.) The accelerating tempo of politics, which compresses the once leisurely pace of senatorial politics into the all-consuming now, helps explain that. But that explanation only goes so far. To punish a senator at the end of a six-year term for a position he or she took in the middle of it or earlier, voters must still be able to sustain passions over a period Madison believed was intrinsically impossible because passions were intrinsically fleeting. I argued in the book that patience was a fact of life in Madison’s time. It has become something on which Madison did not want wholly to rely, but a modicum of which he had to assume: a virtue.