1. Another work has used the term “Senate exceptionalism,” but in mostly a different way and for a different analytical purpose: Bruce I. Oppenheimer, ed., U.S. Senate Exceptionalism (Columbus: Ohio State University Press, 2002). The essays contained therein adhere to empirical investigations (elections, committees, representation, floor proceedings, and so forth) of how the Senate is or is not different from the House of Representatives, or what difference the Senate makes.
2. This is distinct from the academic study of what makes the United States, from a comparative perspective, empirically or historically different from, or exceptional when compared to, other democracies. See, among others, Seymour Martin Lipset, The First New Nation: The United States in Historical and Comparative Perspective (New York: Norton, 1979).
3. Alexis de Tocqueville, Democracy in America, edited by J. P Mayer (Garden City, NY: Anchor Books, 1969), 374.
4. On the concept of civil religion applied to the United States, see Robert N. Bellah, “Civil Religion in America,” Daedalus 96, no. 1 (1967): 1–21.
5. Works on or critiques of American exceptionalism include Deborah L. Madsen, American Exceptionalism (Jackson: University Press of Mississippi, 1998); John D. Wilsey, American Exceptionalism and Civil Religion: Reassessing the History of an Idea (Downers Grove, IL: InterVarsity Press, 2015); Godfrey Hodgson, The Myth of American Exceptionalism (New Haven, CT: Yale University Press, 2010); Anatol Lieven, America Right or Wrong: An Anatomy of American Nationalism (New York: Oxford University Press, 2004); and Paul T. McCartney, “American Nationalism and U.S. Foreign Policy from September 11 to the Iraq War,” Political Science Quarterly 119, no. 3 (October 1, 2004): 399–423.
6. Partisan use or exploitation of the exceptionalism concept can be traced to Ronald Reagan’s 1980 campaign for the presidency. Among other things, Reagan invoked the Puritans’ imagery of America as a “shining city on a hill.” After the attacks of September 11, 2001, President George W. Bush used the vocabulary of American exceptionalism in support of his decision to take the nation to war. During these years, Republicans came to use the term nearly as a code word for a largely unquestioning belief in American superiority, supposedly in contrast to the less orthodox civic religion of Democrats and liberals such as Hillary Clinton and Barack Obama. For example, “2016 Republican Party Platform,” The American Presidency Project, https://www.presidency.ucsb.edu/documents/2016-republican-party-platform.
7. In 1998, Secretary of State Madeleine Albright added the phrase “indispensable nation” to the vocabulary of exceptionalism: “But if we have to use force, it is because we are America; we are the indispensable nation. We stand tall and we see further than other countries into the future, and we see the danger here to all of us” (https://1997-2001.state.gov/statements/1998/980219a.html).
8. Annals of Congress, March 2, 1805, 71, https://memory.loc.gov/ammem/amlaw/lwac.html.
9. Daniel Webster, “Second Reply to Hayne, January 26 and 27, 1830 (In the Senate),” Senate.gov, https://www.senate.gov/artandhistory/history/resources/pdf/WebsterReply.pdf.
10. Congressional Record, September 23, 1893, 1702.
11. W. E. Gladstone, “Kin beyond Sea,” North American Review 127, no. 264 (1878): 191–92.
12. William S. White, Citadel: The Story of the U. S. Senate (New York: Harper, 1957), ix.
13. From Byrd’s 1996 orientation speech to new senators, reprinted in the Congressional Record, January 7, 1997, S21–23. The senator also referred to the Senate as the “anchor of the Republic” and the “morning and evening star in the American constitutional constellation.”
14. Needless to say, legislative studies in political science have devoted plenty of attention to the Senate, even if the upper chamber took a back seat to the House for many decades in the study of Congress, especially in the heyday of behavioralism. When the so-called new institutionalism highlighted the importance of rules, naturally the peculiarities of decision-making in the upper house drew empirical attention. Collectively much of this work investigates aspects of what is often thought of as “Senate exceptionalism.” See Oppenheimer, U.S. Senate Exceptionalism. The characteristics that set the Senate apart from a comparative standpoint become the focus of analysis, whether separately or in combination: from the constitutional fundamentals of equal representation and longer and staggered terms to the various effects of its rules and norms. See, among others, Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Washington, DC: Brookings Institution Press, 1997); David W. Brady and Craig Volden, Revolving Gridlock: Politics and Policy from Carter to Clinton (Boulder, CO: Westview Press, 1998); Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking (Chicago: University of Chicago Press, 1998); Gregory J. Wawro and Eric Schickler, Filibuster: Obstruction and Lawmaking in the U.S. Senate (Princeton, NJ: Princeton University Press, 2006); Gregory Koger, Filibustering a Political History of Obstruction in the House and Senate (Chicago: University of Chicago Press, 2010); Lauren C. Bell, Filibustering in the U.S. Senate (Amherst, NY: Cambria Press, 2011); and Steven S. Smith, The Senate Syndrome: The Evolution of Procedural Warfare in the Modern U.S. Senate (Norman: University of Oklahoma Press, 2014). The normative dimensions of the Senate’s unusual features are generally undisturbed. Such analysis tends to be strictly empirical and unconcerned about questions of constitutionalism, narrowly or broadly construed. Little if anything is borrowed from democratic theory and linked to an evaluative or normative argument about whether equal representation can be justified or whether the sixty-vote Senate serves a constitutional purpose or is valuable in some other way. One exception is an ardent if flawed defense of the Senate filibuster: Richard A. Arenberg and Robert B. Dove, Defending the Filibuster: The Soul of the Senate (Bloomington: Indiana University Press, 2012). Another, from the opposite perspective, is Adam Jentleson, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy (New York: Liveright, 2021). And there has been no sustained argument about the relationship between equal representation and supermajority cloture.
15. A great deal of democratic theory has been normative and evaluates such things as deliberation, majority rule, and the relative merits of liberal, communitarian, or republican forms of government. And yet democratic theory rarely confronts existing institutions, preferring instead to compare and contrast abstractions rather than actual constitutional forms and practices, especially hybrid ones such as the Senate. This has changed to some degree with the addition of some theoretical work that often blends historical and normative analysis, frequently grounding its normative arguments on examples and analysis of real institutional arrangements, past and present. If not directly on constitutionalism, much of this can inform a critical analysis of institutions and practices that have been more or less taken for granted. See, among others, Bernard Manin, The Principles of Representative Government (New York: Cambridge University Press, 1997); Melissa S. Williams, Voice, Trust, and Memory: Marginalized Groups and the Failings of Liberal Representation (Princeton, NJ: Princeton University Press, 1998); Ian Shapiro, The State of Democratic Theory (Princeton, NJ: Princeton University Press, 2003); Melissa Schwartzberg, Counting the Many: The Origins and Limits of Supermajority Rule (New York: Cambridge University Press, 2013); and Jeremy Waldron, Political Political Theory: Essays on Institutions (Cambridge, MA: Harvard University Press, 2016).
16. Charles Stewart III, “Responsiveness in the Upper Chamber: The Constitution and the Institutional Development of the Senate,” in The Constitution and American Political Development, ed. Peter F. Nardulli (Urbana: University of Illinois Press, 1992), 63–96; C. H Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment (New Brunswick, NJ: Transaction Publishers, 1995); Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in Congress, 1787–1841 (Ann Arbor: University of Michigan Press, 2002); Daniel Wirls and Stephen Wirls, The Invention of the United States Senate (Baltimore, MD: Johns Hopkins University Press, 2004).
17. I cite the law review literature on supermajority cloture and the continuing body question in the sections of the book that deal with those directly. For an example on state equality in the Senate, see Lynn A. Baker and Samuel H. Dinkin, “The Senate: An Institution Whose Time Has Gone?,” Journal of Law and Politics 13 (1997): 21–103.
18. Bateman, Katznelson, and Lapinski make a related argument about Congress as a whole, focusing on the period from the late 1870s through the 1920s. David Bateman, Ira Katznelson, and John S. Lapinski, Southern Nation: Congress and White Supremacy after Reconstruction (Princeton, NJ: Princeton University Press, 2020). Jentleson, Kill Switch, makes a similar argument focused on the filibuster and the contemporary Senate, while giving only passing attention to equal representation.
19. There are two other notable features of the Senate’s original constitutional design, but those will be part of this story only incidentally. Indirect election (selection by state legislatures) was a founding and fundamental feature of the Senate’s design and constitutionalism until ended by the Seventeenth Amendment passed in 1913. Selection by state legislatures was intended to foster a more insulated and deliberative institution. This feature of the Senate’s original architecture produced one of the strongest and most persistent movements of constitutional reform and resulted in the only amendment to change one of the basic design features of Congress, the president, and judiciary. From a comparative perspective, the other core feature of the Senate is its constitutional authority relative to the House’s. That is, the Senate has essentially the same legislative power as the House (except for the nearly irrelevant revenue bill origination clause) and has sole authority over appointments and treaties.
20. Arenberg and Dove, Defending the Filibuster.
21. Charles E. Lindblom, Politics and Markets: The World’s Political Economic Systems (New York: Basic Books, 1977), 356.
1. This chapter draws in part from my earlier co-authored work on the creation of the Senate. Daniel Wirls and Stephen Wirls, The Invention of the United States Senate (Baltimore, MD: Johns Hopkins University Press, 2004), 76–79, 82, 91–92, 113, 133–34. Portions reproduced with permission of Johns Hopkins University Press.
2. For discussions of unicameralism, relative power within bicameral legislatures, and modern senates and second chambers in the world, see Nicholas Baldwin and Donald Shell, eds., Second Chambers (New York: Routledge, 2016); Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 2nd ed. (New Haven, CT: Yale University Press, 2012); and Samuel C. Patterson and Anthony Mughan, Senates: Bicameralism in the Contemporary World (Columbus: Ohio State University Press, 1999).
3. Article III begins with the overall structure of the judiciary and that judges will be compensated and serve during good behavior, but the method of selection, being a power shared by the Senate and executive, is detailed in Article II, section 2, regarding the general appointment power.
4. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, CT: Yale University Press, 1966), 1:339.
5. Farrand, The Records of the Federal Convention of 1787, 1:254.
6. Farrand, The Records of the Federal Convention of 1787, 1:18–20.
7. Farrand, The Records of the Federal Convention of 1787, 1:48.
8. Farrand, The Records of the Federal Convention of 1787, 1:36–37.
9. Wirls and Wirls, The Invention of the United States Senate, 78–82.
10. Comments ranged from brief allusions to one characteristic or goal to lengthy commentaries that referred to three or four. Most of the comments are clear and direct in reference. Others, of course, are open to interpretation. I tried to judge on the basis of the full commentary and context.
11. Jacob Ernest Cooke, ed., The Federalist (Middletown, CT: Wesleyan University Press, 1982), 342.
12. Farrand, The Records of the Federal Convention of 1787, 1:20.
13. Farrand, The Records of the Federal Convention of 1787, 1:375.
14. Farrand, The Records of the Federal Convention of 1787, 2:216, 230–31, 235–39, 251, 268–69, 272. The delegates’ concern about the influence of strangers on legislative counsels extended to their fellow citizens. The August 8 vote to raise the House citizenship requirement from three to seven years was immediately followed by a debate over whether to require seven years of residence within the state as an eligibility requirement. As Rutledge put it, “An emigrant from N. England to S.C. or Georgia would know little of its affairs and could not be supposed to acquire a thorough knowledge in less time.” Read “reminded him that we were now forming a National Government and such a regulation would correspond little with the idea that we were one people.” Though any specific period of residence was defeated, the debate evinced that the concerns about strangers was not limited solely to foreigners, and again was not by any means a concern exclusive to the Senate (Farrand, The Records of the Federal Convention of 1787, 2:217–19).
15. Farrand, The Records of the Federal Convention of 1787, 1:321.
16. Farrand, The Records of the Federal Convention of 1787, 1: 322.
17. There is much more to say about the motives of the small-state delegations, including their practical concerns for approval of the final product by the states. On this and the effect of each state having one vote at the Convention, see, among others, John P. Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review 55, no. 4 (December 1, 1961): 799–816; and Frances E. Lee and Bruce Ian Oppenheimer, Sizing up the Senate: The Unequal Consequences of Equal Representation (Chicago: University of Chicago Press, 1999), 32–43.
18. Farrand, The Records of the Federal Convention of 1787, 1:149, 155–56.
19. Farrand, The Records of the Federal Convention of 1787, 1:51.
20. Farrand, The Records of the Federal Convention of 1787, 1:487.
21. Wirls and Wirls, The Invention of the United States Senate, 71–103.
22. Farrand, The Records of the Federal Convention of 1787, 2:94–95. These two issues surfaced again briefly on August 9 in debate on the dilution of the money bills restriction. But neither the number of senators per state nor per capita voting was ever threatened (Farrand, The Records of the Federal Convention of 1787, 2:232–34). As is indicated in Charles Pinckney’s remarks after the convention, delegates with experience in the Confederation Congress wished to avoid the difficulties caused by state voting (Farrand, The Records of the Federal Convention of 1787, 3:252).
23. This analysis parallels Elaine Swift’s idea of a “watchdog on a long leash.” Swift argues that after the apportionment compromise, many small-state delegates joined with the large states to ensure that the Senate, though tied to the states through state selection and equal representation, would retain some independence through long terms, national pay, and rotation. The per capita voting decision is one of the strongest indicators of this. Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in Congress, 1787–1841 (Ann Arbor: University of Michigan Press, 2002), 39.
24. Wirls and Wirls, The Invention of the United States Senate, chap. 5.
25. Howard Baker, “Rule XXII: Don’t Kill It!,” Washington Post, April 27, 1993.
26. Sam Stein and Ryan Grim, “Harry Reid: Filibuster Reform Will Be Pursued in the Next Congress,” Huffington Post, November 7, 2012.
27. I also searched the term “majority” to capture other comments that might be expressing something about the minority without using that precise term. It should be noted that I would never rely solely on a digital term search to reach any conclusions. My work on the Senate and other issues related to the founding has caused me to read volumes 1 and 2 of Farrand’s Records of the Federal Convention twice in their entirety.
28. John Patrick Coby, “The Long Road toward a More Perfect Union: Majority Rule and Minority Rights at the Constitutional Convention,” American Political Thought 5, no. 1 (2016): 37–38.
29. Coby, “The Long Road toward a More Perfect Union,” 38n19.
30. Farrand, The Records of the Federal Convention of 1787, 1:135, and see 1:421–23 as well.
31. Farrand, The Records of the Federal Convention of 1787, 2:224, 273–74, 362–63.
32. “As soon as the Southern & Western population should predominate, which must happen in a few years, the power wd. be in the hands of the minority, and would never be yielded to the majority, unless provided for by the Constitution.” Farrand, The Records of the Federal Convention of 1787, 1:586.
33. See, for examples, Farrand, The Records of the Federal Convention of 1787, 1:86, 198–99, 252, 318, 322, 494–96, 527–29, 584, 605–6; 2:4, 9, 254, 255, 536, 540, 548.
34. Farrand, The Records of the Federal Convention of 1787, 2:251–53.
35. Farrand, The Records of the Federal Convention of 1787, 2:549.
36. Farrand, The Records of the Federal Convention of 1787, 2:255.
37. Farrand, The Records of the Federal Convention of 1787, 2:585.
38. Cooke, The Federalist, 57.
39. Cooke, The Federalist, 60.
40. In the words of Senate scholar Steven Smith, “Defenders of Rule 22 often claim the Framers of the Constitution intended minority rights to be protected by the Senate. Taken on its face, this claim is incorrect. Nowhere in the summaries of the constitutional Convention or the Federalist Papers is there an argument for allowing Senate minority factions to block action on legislation. Of course, the Senate was designed to protect the interests of small states.” Congress, Joint Committee on the Organization of Congress, Floor Deliberations and Scheduling, 103, 1st, May 18, 20, 25, 1993, p. 225.
41. Farrand, The Records of the Federal Convention of 1787, 1:456–57.
42. Farrand, The Records of the Federal Convention of 1787, 1:483.
43. Farrand, The Records of the Federal Convention of 1787, 2:450.
44. Congressional Record, November 30, 2010, S8278.
45. Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980).
46. Peter Charles Hoffer, William James Hoffer, and N. E. H. Hull, The Supreme Court: An Essential History (Lawrence: University Press of Kansas, 2018), 16.
47. Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1989), 267, 270–71.
48. Farrand, The Records of the Federal Convention of 1787, 1:133.
49. Peverill Squire, The Rise of the Representative: Lawmakers and Constituents in Colonial America (Ann Arbor: University of Michigan Press, 2017), 57–84.
50. Wilson was the only unequivocal advocate for direct popular election of the executive, but that did not spare the convention considerable difficulty in finding the most agreeable or least objectionable method of selecting the president. It proved to be one of the most troublesome issues following the Great Compromise on Senate representation.
51. Cooke, The Federalist, 347–48.
52. “Note to his Speech on the Right of Suffrage,” in Farrand, The Records of the Federal Convention of 1787, 3:451.
53. Daniel Wirls, The Federalist Papers and Institutional Power in American Political Development (New York: Palgrave Macmillan, 2015).
54. Farrand, The Records of the Federal Convention of 1787, 2:6–7.
55. The only subsequent change to the substance of the proposed constitution came just before its final approval on September 17 when the convention agreed unanimously to lower the ratio of representation in the House from a maximum of one representative for every 40,000 persons to one for every 30,000. Farrand, The Records of the Federal Convention of 1787, 2:644.
56. Farrand, The Records of the Federal Convention of 1787, 2:629–31.
1. Only the Twelfth Amendment in 1804 and the Twenty-Sixth Amendment in 1971 enjoyed quicker ratification. Tennessee was the lone state of the former Confederacy to ratify the Twenty-Third.
2. Michael Barone and Richard Cohen, The Almanac of American Politics (Washington, DC: National Journal Group, 2004), 368.
3. Democrats held sixty-one seats (or sixty-two, if you count an independent senator who caucused with the party) in the Senate and 292 House seats (just shy of the postwar record of 295 during the Eighty-Ninth Congress following the 1964 landslide).
4. See the website at https://statehood.dc.gov/. See also Tessa Berenson, “Mayor Wants Washington, D.C. to Become 51st State.,” Time, April 15, 2016, 1–1; Kris Hammond, “This Unconventional Proposal for D.C. Statehood Could Use Some Trumpian Dealmaking,” Washington Post, February 16, 2017.
5. Lawrence M. Frankel, “National Representation for the District of Columbia: A Legislative Solution,” University of Pennsylvania Law Review 139, no. 6 (1991): 1659–709; Philip G. Schrag, “The Future of District of Columbia Home Rule,” Catholic University Law Review 39, no. 2 (1990): 311–72.
6. Emily Cochrane, “In Historic Vote, House Approves Statehood for the District of Columbia,” New York Times, June 26, 2020.
7. Frankel, “National Representation for the District of Columbia: A Legislative Solution,” 1660n6.
8. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, CT: Yale University Press, 1966), 1:321.
9. Alexander Hamilton, James Madison, and John Jay, The Federalist, edited by Jacob Ernest Cooke (Middletown, CT: Wesleyan University Press, 1982), 416–17.
10. There were no reliable census counts in use at the convention. The original apportionments were based on estimates. Virginia was the largest, with ten seats, while the smallest, Delaware and Rhode Island, had one seat each. The average number of seats was five, and New York was given six. The 1790 census made New York the fifth largest of the thirteen states.
11. Such a centralized system—far more than an amendment of the Confederation—took them, as they saw it, outside the scope of the authority granted to them in their appointment to the convention. Max Farrand, The Framing of the Constitution of the United States (New Haven, CT: Yale University Press, 1913), 105.
12. Rosemarie Zagarri, The Politics of Size: Representation in the United States, 1776–1850 (Ithaca: Cornell University Press, 1987). One expression of this view at the Constitutional Convention came from Gouverneur Morris, who noted, “It has been said that N. C. S. C., and Georgia only will in a little time have a majority of the people of America.” Farrand, The Records of the Federal Convention of 1787, 1:604.
13. Farrand, The Records of the Federal Convention of 1787, 1:201.
14. Although Pennsylvania did not vote to support the Great Compromise, one of its delegates might have been expressing a latent sentiment when he lamented that “he shall be obliged to vote for ye. vicious principle of equality in the 2d. branch in order to provide some defence for the N. States agst” domination by the South in the legislature (Farrand, The Records of the Federal Convention of 1787, 1:604).
15. The 7–5 figure includes border state Delaware in the group of states without significant enslaved populations. Delaware’s enslaved population was small and becoming less important to the state’s economy as the state moved away from slavery in law and practice. Its slave population rapidly diminished as a percentage of its total population (from 15 percent in 1790 to 6 percent by 1810), whereas the other border state, Maryland, retained a significant slave population for decades (32 percent in 1790 and 29 percent in 1810).
16. Leading the way were South Carolina, with 47 percent of its census count enslaved, and Georgia, with nearly 42 percent.
17. Leonard L. Richards, The Slave Power: The Free North and Southern Domination, 1780—1860 (Baton Rouge: LSU Press, 2000).
18. The congressional act to enable the admission of Kentucky was passed just prior to that for Vermont in early 1791, but Vermont beat Kentucky to admission because it had a state constitution ready to present as part of admission and had ratified the US Constitution.
19. These counts typically include Delaware as a slave-holding state because, while unimportant to its economy and overall interests, slavery was still legal in that state.
20. For one comprehensive account among many studies of this era, see William W. Freehling, The Road to Disunion: Secessionists at Bay, 1776–1854 (New York: Oxford University Press, 1990).
21. Barry R. Weingast provides a good summary of House actions in “Political Stability and Civil War: Institutions, Commitment, and American Democracy,” in Robert Bates et al., Analytic Narratives (Princeton, NJ: Princeton University Press, 1998), 168–69.
22. Gregory Wawro, “Peculiar Institutions: Slavery, Sectionalism, and Minority Obstruction in the Antebellum Senate,” Legislative Studies Quarterly 30, no. 2 (January 7, 2011): 163–91.
23. Gregory Koger, Filibustering a Political History of Obstruction in the House and Senate (Chicago: University of Chicago Press, 2010); Daniel Wirls, “The ‘Golden Age’ Senate and Floor Debate in the Antebellum Congress,” Legislative Studies Quarterly 32, no. 2 (2007): 193–222.
24. John C. Calhoun, A Disquisition on Government and Selections from the Discourse (New York: Bobbs-Merrill, 1953), 28.
25. On Calhoun’s and antebellum southern political thought, see James H. Read, Majority Rule versus Consensus: The Political Thought of John C. Calhoun (Lawrence: University Press of Kansas, 2009), and Jesse T. Carpenter, The South as a Conscious Minority 1789–1861: A Study in Political Thought (New York: New York University Press, 1930).
26. Read, Majority Rule versus Consensus, 12. More generally, William W. Freehling, Prelude to Civil War: The Nullification Crisis in South Carolina 1816–1836 (New York: Oxford University Press, 1965).
27. Carpenter, The South as a Conscious Minority 1789–1861, 4.
28. Calhoun, A Disquisition on Government, 28.
29. Calhoun, A Disquisition on Government, 30.
30. Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Washington, DC: Brookings Institution Press, 1997), 56.
31. On the southern use of the filibuster before the Civil War, see Wawro, “Peculiar Institutions.”
32. Michael Wayne Bowers, The Sagebrush State: Nevada’s History, Government, and Politics, 3rd ed. (Reno: University of Nevada Press, 2006), 17–26.
33. Charles Stewart and Barry R. Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development,” Studies in American Political Development 6, no. 2 (1992): 223–71.
34. South Dakota (348,600) and Washington (357,232), for example, were bigger than Delaware, Rhode Island, Vermont, Oregon, and Nevada.
35. C. Vann Woodward, The Strange Career of Jim Crow (Oxford: Oxford University Press, 2001); J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910 (New Haven, CT: Yale University Press, 1974).
36. Stanley P. Hirshson, Farewell to the Bloody Shirt: Northern Republican & the Southern Negro, 1877–1893 (Bloomington: Indiana University Press, 1962); Richard Franklin Bensel, Sectionalism and American Political Development, 1880–1980 (Madison: University of Wisconsin Press, 1984); Richard Franklin Bensel, The Political Economy of American Industrialization, 1877–1900 (New York: Cambridge University Press, 2000); David Bateman, Ira Katznelson, and John S. Lapinski, Southern Nation: Congress and White Supremacy after Reconstruction (Princeton, NJ: Princeton University Press, 2020).
37. Richard E. Welch, “The Federal Elections Bill of 1890: Postscripts and Prelude,” Journal of American History 52, no. 3 (December 1965): 511–26.
38. The strongest manifestation of this belief was in the doctrine and practice of instruction. For a few decades before the Civil War, some state legislatures developed the practice of “instructing” their senators and “requesting” their representatives to support or resist a measure. This distinction mirrored the ambivalent nature of instruction: as an order and as a petition. As the controllers of senatorial elections, state legislatures could attempt to command their senators—but not representatives, who were selected by the people directly. On the rise and fall of instruction, see William H. Riker, “The Senate and American Federalism,” American Political Science Review 49, no. 2 (June 1, 1955): 452–69; Roy Swanstrom, The United States Senate, 1787–1801 (Washington, DC: Government Printing Office, 1988), 159–72; Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in Congress, 1787–1841 (Ann Arbor: University of Michigan Press, 2002), 44–45, 57–58, 120–21, 164–65; and Daniel Wirls and Stephen Wirls, The Invention of the United States Senate (Baltimore, MD: Johns Hopkins University Press, 2004), 193–98.
39. For a short overview, see Richard Ellis, The Development of the American Presidency (New York: Routledge, 2012), 27–40. For more detail, see Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2006).
40. Riker, “The Senate and American Federalism,” 463.
41. Riker, “The Senate and American Federalism,” 465.
42. Wendy Schiller and Charles Stewart III add considerable detail to this picture. Their work reveals a variety of ways in which parties affected this process in the late nineteenth century. Primary elections, when and where instituted, were also often effective in producing a candidate to be later ratified by a legislative vote, but intraparty competition within the state legislature sometimes produced a selection different from what the primary put forward. They also catalog the variety of party mechanisms, forms of party caucuses, that were employed to structure the selection of senators. Wendy J. Schiller and Charles Haines Stewart, Electing the Senate: Indirect Democracy Before the Seventeenth Amendment (Princeton, NJ: Princeton University Press, 2015).
43. S. E. Moffett, “Is the Senate Unfairly Constituted?” Political Science Quarterly 10, no. 2 (June 1, 1895): 248.
44. Moffett, “Is the Senate Unfairly Constituted?,” 256.
45. Wallace Worthy Hall, “The History and Effects of the Seventeenth Amendment,” Ph.D. diss., University of California, 1936; Daniel Wirls, “Regionalism, Rotten Boroughs, Race, and Realignment: The Seventeenth Amendment and the Politics of Representation,” Studies in American Political Development 13, no. 1 (1999): 1–30.
46. Schiller and Stewart, Electing the Senate; Sara Brandes Crook and John R. Hibbing, “A Not-So-Distant Mirror: The 17th Amendment and Congressional Change,” American Political Science Review 91, no. 4 (December 1, 1997): 845–53; William Bernhard and Brian R. Sala, “The Remaking of an American Senate: The 17th Amendment and Ideological Responsiveness,” Journal of Politics 68, no. 2 (May 1, 2006): 345–57; Sean Gailmard and Jeffery A. Jenkins, “Agency Problems, the 17th Amendment, and Representation in the Senate,” American Journal of Political Science 53, no. 2 (April 1, 2009): 324–42; Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD: Lexington Books, 2001); Wendy J. Schiller, “Building Careers and Courting Constituents: U.S. Senate Representation 1889–1924,” Studies in American Political Development 20, no. 2 (2006): 185–97; Vikram D. Amar, “Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment,” Vanderbilt Law Review 49, no. 6 (1996): 1347–405.
47. Riker, “The Senate and American Federalism.”
48. Carroll H. Wooddy, “Is the Senate Unrepresentative?,” Political Science Quarterly 41, no. 2 (June 1926): 219–39.
1. Harry S. Truman, “Message to the Congress on the State of the Union and on the Budget for 1947,” https://www.presidency.ucsb.edu/documents/message-the-congress-the-state-the-union-and-the-budget-for-1947. Truman also urged consideration of the same for Puerto Rico if the people of that territory desired it, and for some level of enfranchisement for the District of Columbia.
2. Before Alaska and Hawaii became states, the former states of the Confederacy produced 23 percent of the Senate. If united, those senators needed only eleven allies to prevent the closure of debate.
3. On Alaska and Hawaii, see, among others, John S. Whitehead, Completing the Union: Alaska, Hawai’i, and the Battle for Statehood (Albuquerque: University of New Mexico Press, 2004); Roger J. Bell, Last among Equals: Hawaiian Statehood and American Politics (Honolulu: University of Hawaii Press, 1984); Ann K. Ziker, “Segregationists Confront American Empire: The Conservative White South and the Question of Hawaiian Statehood, 1947–1959,” Pacific Historical Review 76, no. 3 (August 2007): 439–65; and Terrence Cole, Fighting for the Forty-Ninth Star: C. W. Snedden and the Crusade for Alaska Statehood (Fairbanks: University of Alaska Foundation, 2010).
4. Because each state gets one representative regardless of its population, the apportionment can never be perfectly proportional or fair in that way. As well, a state on the margins of what the apportionment formula dictates might not get another seat even though it is close to having the population needed for an additional seat. As a result, there can be some significant differences among the small states in the relative power of their electorates’ vote for the House. As the US Census Bureau explains, “It is impossible to attain absolute mathematical equality in terms of the number of persons per representative, or in the share each person has in a representative, when seats are to be apportioned among states of varying population size and when there must be a whole number of representatives per state” (https://www.census.gov/topics/public-sector/congressional-apportionment/about/historical-perspective.html). For a detailed analysis of this issue and its impact, see Jeffrey W. Ladewig and Mathew P. Jasinski, “On the Causes and Consequences of and Remedies for Interstate Malapportionment of the U.S. House of Representatives,” Perspectives on Politics 6, no. 1 (2008): 89–107.
5. US Census Bureau, Apportionment Legislation 1840–1880, https://www.census.gov/history/www/reference/apportionment/apportionment_legislation_1840_-_1880.html.
6. Glendon Schubert and Charles Press, “Measuring Malapportionment,” American Political Science Review 58, no. 2 (1964): 302–27; Arthur L. Goldberg, “The Statistics of Malapportionment,” Yale Law Journal 72, no. 1 (1962): 90–106. For the deeper roots of this in the nineteenth century, see Peter H. Argersinger, “The Value of the Vote: Political Representation in the Gilded Age,” Journal of American History 76, no. 1 (1989): 59–90.
7. Frances Fox Piven and Richard Cloward, Poor People’s Movements: Why They Succeed, How They Fail (New York: Vintage, 1978); Nicholas Lemann, The Promised Land: The Great Black Migration and How It Changed America (New York: Vintage, 1992); Isabel Wilkerson, The Warmth of Other Suns: The Epic Story of America’s Great Migration (New York: Vintage, 2011).
8. Stephen Ansolabehere and James M. Snyder, The End of Inequality: One Person, One Vote and the Transformation of American Politics (New York: Norton, 2008), 23–67.
9. Ansolabehere and Snyder, The End of Inequality, 64–67.
10. Justice Clark concurring in Baker v. Carr, 369 U.S. 186 (1962).
11. Colegrove v. Green, 328 U.S. 549 (1946).
12. Baker v. Carr, 369 U.S. 186 (1962); Jo Desha Lucas, “Legislative Apportionment and Representative Government: The Meaning of Baker v. Carr,” Michigan Law Review 61, no. 4 (1963): 711–804.
13. Gray v. Sanders, 372 U.S. 368 (1963).
14. Wesberry v. Sanders, 376 U.S. 1 (1964).
15. Reynolds v. Sims, 377 U.S. 533 (1964), 568.
16. Reynolds, 562
17. Reynolds, 567.
18. In his dissent, Justice Harlan put this slightly differently: “Whatever may be thought of this holding as a piece of political ideology . . . I think it demonstrable that the Fourteenth Amendment does not impose this political tenet on the States or authorize this Court to do so.” Reynolds, 590.
19. Earl Warren, The Memoirs of Earl Warren (Garden City, NY: Doubleday, 1977), 306.
20. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus and Giroux, 2010), 268–70.
21. Lucas A. Powe Jr., The Warren Court and American Politics (Cambridge, MA: Belknap Press of Harvard University Press, 2000), 255.
22. Jack Harrison Pollack, Earl Warren: The Judge Who Changed America (Englewood Cliffs, NJ: Prentice Hall, 1979), 209. Pollack does not give a source for the quotation. In a 1969 interview Warren said something quite similar when asked whether the most important decision reached by his court was school desegregation or reapportionment. He replied that apportionment “is perhaps the most important issue we have had before the Supreme Court” because “most of these problems that we are now confronted with would be solved through the political process rather than through the courts.” “Excerpts from Interview with Warren on His Court’s Decisions,” New York Times, June 27, 1969, 17. From the question he is responding to, it seems clear that the “problems” he has in mind are primarily the racial ones invoked by the school desegregation cases.
23. Ansolabehere and Snyder, The End of Inequality, 146. Justice Black’s comment is according to notes made by Justice Douglas on the conference deliberations. On the connections between the apportionment cases and racial discrimination more generally, see Robert M. Crea, “Racial Discrimination and Baker v. Carr,” Journal of Legislation 30 (2004): 289–304.
24. Reynolds, 573.
25. Reynolds, 574.
26. Lynn A. Baker and Samuel H. Dinkin, “The Senate: An Institution Whose Time Has Gone?,” Journal of Law and Politics 13 (1997): 22.
27. Powe, The Warren Court and American Politics, 252.
28. Reynolds, 576.
29. Hawaii was apportioned two House seats at the outset.
30. Neil Malhotra and Connor Raso, “Racial Representation and U.S. Senate Apportionment.,” Social Science Quarterly 88, no. 4 (December 2007): 1038.
31. Frances E. Lee and Bruce Ian Oppenheimer, Sizing up the Senate: The Unequal Consequences of Equal Representation (Chicago: University of Chicago Press, 1999), 10–11.
32. For 1790 I include the three states that were added during the 1790s: Vermont, Kentucky, and Tennessee. The ratio of top five to bottom five of the original thirteen was 4.5 to 1.
33. All figures are based on the 2010 census and data from the US Census Bureau (http://www.census.gov/population/apportionment/data/2010_apportionment_results.html).
34. As well, in the 2010 apportionment, each of the four smallest states, with their collective eight senators, is smaller in total population than the average size of the districts for the US House of representatives nationwide, which is 710,767 for the 435 seats.
35. John D. Griffin, “Senate Apportionment as a Source of Political Inequality,” Legislative Studies Quarterly 31, no. 3 (August 1, 2006): 405–32; G. Ross Stephens, “Urban Underrepresentation in the U.S. Senate.,” Urban Affairs Review 31, no. 3 (January 1996): 404–18; Malhotra and Raso, “Racial Representation and U.S. Senate Apportionment.”
36. Griffin, “Senate Apportionment as a Source of Political Inequality.”
37. Alaska, Montana, North Dakota, South Dakota, Vermont, and Wyoming. The median state population in the 2018 census estimates was just over 4.5 million. The average population in this group of sixteen was just over two million, with only Washington above that median, with around 7.5 million.
38. The four are Carol Moseley Braun, Barack Obama, Tim Scott, and Cory Booker. The other two are Edward Brooke of Massachusetts and Kamala Harris of California. Hiram Revels and Blanche Bruce were selected by the Mississippi state legislature in the 1870s during the Reconstruction era.
39. For a parallel discussion of the impact on African Americans, though based on the 1990 census, see Baker and Dinkin, “The Senate,” 43–47.
40. Baker and Dinkin, “The Senate,” 43.
41. Cary M. Atlas et al., “Slicing the Federal Government Net Spending Pie: Who Wins, Who Loses, and Why,” American Economic Review 85, no. 3 (1995): 624–29; Cary M. Atlas, Robert J. Hendershott, and Mark A. Zupan, “Optimal Effort Allocation by U.S. Senators: The Role of Constituency Size,” Public Choice 92, no. 3/4 (1997): 221–29; Baker and Dinkin, “The Senate”; Lee and Oppenheimer, Sizing up the Senate, 158–222; Stephen Ansolabehere, James M. Snyder Jr., and Michael M. Ting, “Bargaining in Bicameral Legislatures: When and Why Does Malapportionment Matter?,” American Political Science Review 97, no. 3 (August 1, 2003): 471–81; Gary A. Hoover and Paul Pecorino, “The Political Determinants of Federal Expenditure at the State Level,” Public Choice 123, no. 1 (April 1, 2005): 95–113; Brian Knight, “Legislative Representation, Bargaining Power and the Distribution of Federal Funds: Evidence from the US Congress,” Economic Journal 118, no. 532 (2008): 1785–803; Adam Liptak, “Smaller States Find Outsize Clout Growing in Senate,” New York Times, March 11, 2013.
42. Lee and Oppenheimer, Sizing up the Senate, 14.
43. Lee and Oppenheimer, Sizing up the Senate, 191–92.
44. See the website of the US Census Bureau at http://www.census.gov/prod/2011pubs/cffr-10.pdf.
45. Liptak, “Smaller States Find Outsize Clout Growing in Senate.”
46. Dean E. Murphy, “Security Grants Still Streaming to Rural States,” New York Times, October 12, 2004.
47. Jeffey Lazarus and Amy Steigerwalt, “Different Houses: The Distribution of Earmarks in the U.S. House and Senate,” Legislative Studies Quarterly 34, no. 3 (2009): 365.
48. To cite just a sample of work on this subject: James E Campbell, Polarized: Making Sense of a Divided America, 2016; Matthew Levendusky, The Partisan Sort: How Liberals Became Democrats and Conservatives Became Republicans (Chicago: University of Chicago Press, 2010); John Sides and Daniel J. Hopkins, eds., Political Polarization in American Politics (New York: Bloomsbury Press, 2015); Bill Bishop and Robert G. Cushing, The Big Sort: Why the Clustering of like-Minded America Is Tearing Us Apart (Boston: Mariner Books, 2009); Morris P. Fiorina and Samuel J. Abrams, Parties at War: Partisan Sorting and the Contemporary American Electorate (New York: Routledge, 2016); “Political Polarization,” Pew Research Center, n.d., http://www.pewresearch.org/packages/political-polarization/.
49. David Graham, “Red State, Blue City,” Atlantic, March 2017.
50. Franco Mattei, “Senate Apportionment and Partisan Advantage: A Second Look,” Legislative Studies Quarterly 26, no. 3 (August 2001): 391–409.
51. See Britannica Encyclopaedia, online edition, sv. “gerrymandering” (www.britannica.com/topic/gerrymandering), and Merriam-Webster Dictionary, 17th ed., online, sv. “gerrymander” (https://www.merriam-webster.com/dictionary/gerrymander#h2).
52. Following the one person, one vote revolution, gerrymandering of House and state legislative districts gradually became a national issue and the subject of several Supreme Court cases. For one thing, information technology allowed those drawing the district lines to get ever more precise in locating voters in predictable ways. Another factor involved the intersection of the Voting Rights Act with how racial majorities and minorities were divided. Overall, the accusation became that legislators were picking their voters rather than the other way around. The controversy became especially prominent following the elections and apportionment of 2010. Subsequent elections seemed to show that creative districting was capable of reliably producing a majority of seats for a party in, say, Pennsylvania or North Carolina that would win only a minority of the statewide vote.
53. Adrian Vermeule, “Second-Best Democracy,” Harvard Law & Policy Review (blog), Harvard Law School, 2006, https://harvardlpr.com/online-articles/second-best-democracy/; Stephen Macedo, “Our Imperfect Democratic Constitution: The Critics Examined,” Boston University Law Review 89 (2009): 609–28.
54. Reynolds, 576–77.
55. Misha Tseytlin, “The United States Senate and the Problem of Equal State Suffrage,” Georgetown Law Journal 94 (2006): 859–88.
56. Tseytlin, “The United States Senate,” 867–68.
57. Tseytlin, “The United States Senate,” 875.
58. Such as those described by, among others, Richard Franklin Bensel, Sectionalism and American Political Development, 1880–1980 (Madison: University of Wisconsin Press, 1987); and Peter Trubowitz, Defining the National Interest: Conflict and Change in American Foreign Policy (Chicago: University of Chicago Press, 1998).
59. Tseytlin, “The United States Senate,” 875.
60. Quoted in Liptak, “Smaller States Find Outsize Clout Growing in Senate.”
61. Gary L. Gregg II, “Keep Electoral College for Fair Presidential Votes,” Politico, December 12, 2012.
62. Noah Feldman, “Revamping the Senate Is a Fantasy,” Bloomberg, October 10, 2018.
63. Macedo, “Our Imperfect Democratic Constitution,” 627.
64. Macedo, “Our Imperfect Democratic Constitution,” 612.
65. David Leonhardt, “The Senate: Affirmative Action for White People,” New York Times, October 19, 2018.
1. George Henry Haynes, The Senate of the United States: Its History and Practice (New York: Russell and Russell, 1938), 341.
2. Richard S. Beth, “‘Entrenchment’ of Senate Procedures and the ‘Nuclear Option’ for Change: Possible Proceedings and Their Implications,” Congressional Research Service, March 28, 2005; Aaron-Andrew P. Bruhl, “Burying the ‘Continuing Body’ Theory of the Senate,” Iowa Law Review 95, no. 5 (2010): 1401–65.
3. William S. White, Citadel: The Story of the U.S. Senate (New York: Harper, 1957), 59.
4. Quoted in Michael J. Gerhardt, “The Constitutionality of the Filibuster,” Constitutional Commentary 21, no. 2 (2004): 464.
5. This claim is based on an extensive bibliographic search. Nearly one hundred works were examined for any reference to or characterization of staggered terms or rotation related to the Senate. In addition to existing bibliographies of Senate scholarship, the author’s collection of works on the origins of the Senate, and electronic library catalog searches, twelve separate searches were done using JSTOR and Google Scholar. No articles or books were found on the origins of staggered terms. Instead, any claims about why staggered terms were applied to the US Senate, if mentioned at all, are part of broader studies: books, dissertations, and articles on early state constitutions, the Constitutional Convention, the revolutionary and founding eras, ratification, Senate history, and the US Congress generally.
6. Neil MacNeil and Richard A. Baker, The American Senate an Insider’s History (New York: Oxford University Press, 2013), 15.
7. According to Rogers, “The terms of the major branches . . . are so arranged as to raise effective shields against gusts of popular passion. . . . Senators serve for six years . . . and one-third of the membership is renewed every two years.” Lindsay Rogers, The American Senate (New York: Knopf, 1926), 15.
8. Charles III Stewart, “Responsiveness in the Upper Chamber: The Constitution and the Institutional Development of the Senate,” in The Constitution and American Political Development, ed. Peter F. Nardulli (Chicago: University of Illinois Press, 1992), 62.
9. Robert A. Caro, Master of the Senate: The Years of Lyndon Johnson (New York: Vintage Books, 2003), 9–10.
10. Theodore J. Lowi and Benjamin Ginsberg, American Government: Freedom and Power (New York: Norton, 1990), 49; Samuel Kernell and Gary C. Jacobson, The Logic of American Politics (Washington, DC: CQ Press, 2000), 164.
11. Daniel Wirls and Stephen Wirls, The Invention of the United States Senate (Baltimore, MD: Johns Hopkins University Press, 2004), 210.
12. Fred Barbash, The Founding: A Dramatic Account of the Writing of the Constitution (New York: Simon and Schuster, 1987), 135.
13. The literature, based on the same comprehensive search and review mentioned above, contains four variations on the conventional wisdom. In order of decreasing frequency, first are assertions without evidence of any kind. Second, this interpretation is offered and supported by brief and casual evidence unrelated to staggered elections. In such cases there is a general quotation about the Senate’s difference, such as the common “cooling the coffee” anecdote or a quotation from Federalist no. 62, even though the quotation is unrelated to staggered terms. Third, selective or very limited evidence, typically in the form of one or two quotations from the records of the Constitutional Convention, is offered to support the usual claim (and sometimes with misleading or inaccurate information). Finally, a few suggest that staggered terms blended the goals of electoral accountability and institutional continuity, with almost no evidence or analysis; see, for example, Paul Eidelberg, The Philosophy of the American Constitution: A Reinterpretation of the Intentions of the Founding Fathers (New York: Free Press, 1968), 143. Few and far between are claims or implications that staggered terms were added to the Senate’s architecture to offset the antidemocratic implications of a long term; see, for example, Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in Congress, 1787–1841 (Ann Arbor: University of Michigan Press, 2002), 40; or Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005), 144. These claims are offered with no more evidence than is the conventional wisdom.
14. For somewhat greater detail on the three eras of evidence, see Daniel Wirls, “Staggered Terms for the US Senate: Origins and Irony,” Legislative Studies Quarterly 40, no. 3 (2015): 471–97.
15. On the importance of rotation (in general, and in both forms) as part of revolutionary era constitutionalism, see Jackson Turner Main, The Upper House in Revolutionary America, 1763–1788 (Madison: University of Wisconsin Press, 1967); Gordon Wood, The Creation of the American Republic: 1776—1787 (Chapel Hill: University of North Carolina Press, 1969); and Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill: University of North Carolina Press, 1980). On forms of rotation extending back to Athenian democracy, see Bernard Manin, The Principles of Representative Government (New York: Cambridge University Press, 1997).
16. John Adams, “Thoughts on Government,” 1776, http://www.masshist.org/publications/adams-papers/index.php/view/PJA04dg2.
17. Main, The Upper House in Revolutionary America, 1763–1788; Adams, The First American Constitutions; Marc W. Kruman, Between Authority & Liberty: State Constitution Making in Revolutionary America (Chapel Hill: University of North Carolina Press, 1997).
18. Maryland voters picked electors, who then gathered in the capital to nominate and select state senators. I have not found anything in the records of the 1776 Maryland Constitutional Convention that explains the choice of five years without rotation beyond the desire for an independent and conservative body, which is also evident in the use of the two-stage election (see Main, The Upper House in Revolutionary America, 1763–1788, 101–14, 189). South Carolina had the same two-year terms for both its chambers.
19. Main, The Upper House in Revolutionary America, 1763–1788; Adams, The First American Constitutions; Kruman, Between Authority & Liberty.
20. Constitution of Delaware, 1776, https://avalon.law.yale.edu/18th_century/de02.asp.
21. In a 1785 letter outlining ideas for constitutional reform in Virginia, Madison went into considerable detail on the form of the legislature and suggested a term of four or five years for the “other branch” (and up to three for the lower house), and endorsed the Maryland Senate. He did not mention staggered terms, and moreover argued against limits on reeligibility, the other type of rotation. Just prior to the convention, in letters to Edmund Randolph and George Washington, Madison provided “some outlines of a new system” he had been contemplating. As part of this he mentioned as an option staggered terms (rotation) for the smaller second branch of a bicameral legislature with longer terms, features that were, again, part of the Virginia constitution; James Madison, Papers, edited by William T. Hutchinson, William M. E. Rachal, and Robert Allen Rutland (Chicago: University of Chicago Press, 1962), 354, 370, 384–85. Based on a comment about the Maryland Senate in a Madison letter from 1786, Greg Weiner argues that Madison saw staggered terms as part of what Weiner calls “temporal republicanism.” But there is no evidence that Madison wanted to include staggered terms in the Virginia Plan or proposed them at the convention. Greg Weiner, Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics (Lawrence: University Press of Kansas, 2012), 50.
22. Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed., 4 vols. (New Haven, CT: Yale University Press, 1966), 1:214–19. Three and seven years were likely inspired by British practice. A few delegates made reference, mostly negative, to the “Septennial Act” of 1716 that changed the maximum parliamentary term from three to seven years. Owen C. Lease, “The Septennial Act of 1716,” The Journal of Modern History 22, no. 1 (March 1, 1950): 42–47.
23. Farrand, The Records of the Federal Convention of 1787, 1:360–62, 365.
24. Yates’s notes record Gorham as proposing “that the senators be classed, and to remain 4 years in office; otherwise great inconveniences may arise if a dissolution should take place at once” (Farrand, The Records of the Federal Convention of 1787, 1:415). “Inconveniences” without more context is ambiguous. But it is worth remembering that Gorham’s Massachusetts held annual elections for every level of its state government, including its senate.
25. Farrand, The Records of the Federal Convention of 1787, 1:396, 415–16.
26. Farrand, The Records of the Federal Convention of 1787, 1:421.
27. Farrand, The Records of the Federal Convention of 1787, 1:421–26. Although there was no discussion of this, it was probably clear that rotation would give each state a shot at having least one senator on an interim basis, that is, that senators from the same state would be staggered.
28. For further analysis of the voting patterns of the state delegations on this issue, see Wirls, “Staggered Terms for the US Senate,” 481–83.
29. Farrand, The Records of the Federal Convention of 1787, 1:431–32.
30. Farrand, The Records of the Federal Convention of 1787, 1:426, 432–33.
31. Farrand, The Records of the Federal Convention of 1787, 1:408. The phrase in brackets is taken by Madison from Yates’s notes.
32. Main, The Upper House in Revolutionary America, 1763–1788; Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon and Schuster, 2011).
33. Jonathan Elliot, Elliot’s Debates: The Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 2, n.d., 48, http://memory.loc.gov/ammem/amlaw/lwed.html.
34. Merrill Jensen, John P. Kaminski, and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution, 31 vols. (Madison: Wisconsin Historical Society Press, 1976–), 5:66–67.
35. In addition to reading widely in the secondary literature and collections of primary sources on ratification, I did an electronic search of Elliot’s Debates using several search terms. The eleven just noted include six veterans of the Constitutional Convention.
36. Elliot, Elliot’s Debates, 2:246.
37. Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters during the Struggle Over Ratification, 2 vols. (New York: Library of America, 1993), 1:367.
38. Bailyn, The Debate on the Constitution, 2:588–89.
39. Elliot, Elliot’s Debates, 2:318–19.
40. See Wirls and Wirls, The Invention of the United State Senate, for much greater detail on the multiple and sometimes contradictory aspects of the Senate’s construction.
41. William Blackstone, Blackstone’s Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia by St. George Tucker (Philadelphia: Young Birch and Abraham Small, 1803), book 1, 196; Joseph Story, Commentaries on the Constitution of the United States (Boston: Little, Brown, 1873), sections 709–12, 724.
42. Congressional Globe, Twenty-Seventh Congress, special session, 240.
43. For example, Congressional Record, March 7, 1917, 11. The 1841 debate furnished the earliest example cited in a congressional collection of extracts of Senate discussion of its status as a continuing body. See Legislative Reference Service, The Senate as a Continuing Body: Extracts from the Congressional Globe Relating to Debates in the Congress of the United States on the Question of the Senate as a Continuing Body (Washington, DC: US Government Printing Office, 1917).
44. Franklin L. Burdette, Filibustering in the Senate (New York: Russell and Russell, 1940), 22.
45. For example, according to the Senate Historical Office, in 1841 the Senate “conducted its first continuous filibuster on March 5, over the issue of dismissal of the printers of the Senate. The filibuster continued until March 11.” Senate Historical Office, “Senate Chronology,” https://www.senate.gov/history/chronology.htm. Koger finds that 1841 does not qualify as a filibuster by his definition, and that two earlier filibusters took place. Gregory Koger, Filibustering: A Political History of Obstruction in the House and Senate (Chicago: University of Chicago Press, 2010), 63. Lauren C. Bell, Filibustering in the U.S. Senate (Amherst, NY: Cambria Press, 2011), includes it in her comprehensive list as the fourth filibuster in Senate history.
46. Congressional Globe, March 5–11, 1841, 236–56. Burdette, Filibustering in the Senate, 22.
47. Congressional Globe, Twenty-Seventh Congress, special session, 236–57.
48. Legislative Reference Service, The Senate as a Continuing Body; Aaron-Andrew P. Bruhl, “Burying the ‘Continuing Body’ Theory of the Senate,” Iowa Law Review 95, no. 5 (2010): 1401–65.
49. Congressional Record, March 8, 1917, 35.
50. My criticisms of the continuing body parallel and draw on Aaron-Andrew Bruhl’s thorough and trenchant treatment: Bruhl, “Burying the ‘Continuing Body’ Theory of the Senate.” At least one scholar (Gerhardt, “The Constitutionality of the Filibuster”) has defended the continuing body idea as substantial enough to provide a constitutional foundation for both of these Senate rules, supermajority cloture and the stipulation that the rules continue from Senate to Senate. The arguments are based, however, almost exclusively on the mere fact of staggered elections, not on any sustainable claims that the framers either intended the Senate to be a continuing body or added staggered elections to create any such thing, or that the words of the Constitution itself imply it. As such, they are little more than assertions based mostly on the deadweight of largely unchallenged tradition.
51. Congressional Record, March 6, 1917, 8.
52. Congressional Record, March 7, 1917, 11.
53. Reuther testimony quoted in US Senate, Republican Policy Committee, Senate Rules and the Senate as a Continuing Body (Washington, DC: US Government Printing Office, 1953), 13.
54. For Walsh’s entire speech, with colloquies, see Congressional Record, March 7, 1917, 9–19.
55. Congressional Record, January 17, 1975, 762.
56. “Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President.” Senate Rule XXXI.
57. Senate Rule XXV.
58. For an example from Senate debate, see the Congressional Record, January 9, 1959, 194. See also Gerhardt, “The Constitutionality of the Filibuster,” 464.
59. McGrain v. Daugherty, 273 U.S. 135.
60. McGrain v. Daugherty, 181.
61. Bruhl, “Burying the ‘Continuing Body’ Theory of the Senate,” 1456.
62. Reuther testimony quoted in US Senate, Republican Policy Committee, Senate Rules and the Senate as a Continuing Body (1953), 13.
63. Senate Manual, 112th Congress, 1st sess., Senate Document 112–1, p. 5, http://www.gpo.gov/fdsys/pkg/SMAN-112/pdf/SMAN-112.pdf.
64. On the 1959 reforms, see Martin B. Gold and Dimple Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” Harvard Journal of Law & Public Policy 28, no. 1 (2004): 231, 240–47.
65. The compromise prevailed on a 72–22 vote, with the nays coming mostly from a strange-bedfellows combination of the core reformers and die-hard southerners who could not stomach any diminution of the cloture rule’s protection of minority power. Congressional Record, January 12, 1959, 494.
66. Congressional Record, January 12, 1959, 493.
67. In the mid- to late nineteenth century, the combined impact of state selection and staggered terms decreased, in some cases, the effect of a national swing in partisanship, with party control changing in the House but not the Senate. Overall, however, the Senate typically matched the House in terms of party control: Abramowitz and Segal, Senate Elections, 14–26. Moreover, the cause of bicameral divided government in this era is complicated by such things as the admission in the late nineteenth century of a large number of low-population western states, producing the “free coinage” of Republican senators: Charles Stewart and Barry R. Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development,” Studies in American Political Development 6, no. 2 (1992): 223–71.
68. The years 1954, 1968, 1976, 1978, 1980, 1986, 1988, 2000. The results of 2004 and 2014 were very close, with House and Senate continuity within 1 percent of each other. Brookings Institution, Vital Statistics on Congress: Data on the U.S. Congress, https://www.brookings.edu/multi-chapter-report/vital-statistics-on-congress/.
69. Alan Abramowitz and Jeffrey Allan Segal, Senate Elections (Ann Arbor: University of Michigan Press, 1992); Jonathan S. Krasno, Challengers, Competition, and Reelection: Comparing Senate and House Elections. (New Haven, CT: Yale University Press, 1997).
70. Martin Thomas, “Election Proximity and Senatorial Roll Call Voting,” American Journal of Political Science 29, no. 1 (1985): 96–111; Sunil Ahuja, “Electoral Status and Representation in the United States Senate,” American Politics Quarterly 22, no. 1 (January 1994): 104–18; Kenneth A. Shepsle et al., “The Senate Electoral Cycle and Bicameral Appropriations Politics,” American Journal of Political Science 53, no. 2 (April 1, 2009): 343–59.
71. Dennis F. Thompson, “Democracy in Time: Popular Sovereignty and Temporal Representation,” Constellations 12, no. 2 (2005): 253.
72. Congressional Record, March 7, 1917, 17. Quoting from Lord Byron’s Manfred.
73. Congressional Record, September 23, 1893, 1703.
1. Congressional Record, June 13, 2005, S6365. Sheryl Gay Stolberg, “Senate Issues Apology over Failure on Lynching Law,” New York Times, June 14, 2005.
2. “Lynching in America: Confronting the Legacy of Racial Terror” (Montgomery, AL: Equal Justice Initiative, 2017).
3. Congressional Record, June 13, 2005, S6365. Her words parallel those of the resolution (S. Res. 39) itself: “. . . between 1890 and 1952, 7 Presidents petitioned Congress to end lynching” and that “between 1920 and 1940, the House of Representatives passed 3 strong anti-lynching measures.” The Senate, however, “considered but failed to enact anti-lynching legislation” (S6364–5).
4. The following senators used some form of the word “filibuster” (with page references to the Congressional Record, June 13, 2005): Landrieu (6371), Allen (6372), Feingold (6385), Boxer (6386), Harkin (6386), Bennett (6388).
5. Congressional Record, June 13, 2005, S6388.
6. General Henry M. Robert, Robert’s Rules of Order (New York: Pyramid Books, 1967).
7. It should be noted that Robert’s Rules of Order specify that a successful previous question motion requires support of two-thirds of those voting.
8. Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Washington, DC: Brookings Institution Press, 1997), 35–39.
9. Rules of the Senate, https://www.rules.senate.gov/rules-of-the-senate.
10. See the website http://www.senate.gov/reference/glossary_term/filibuster.htm.
11. Franklin L. Burdette, Filibustering in the Senate (New York: Russell and Russell, 1940), 14.
12. Gregory Koger, Filibustering: A Political History of Obstruction in the House and Senate (Chicago: University of Chicago Press, 2010).
13. Daniel Wirls, “The ‘Golden Age’ Senate and Floor Debate in the Antebellum Congress,” Legislative Studies Quarterly 32, no. 2 (2007): 193–222.
14. Frank W. Mondell, “Pro: Should Debate in the Senate Be Further Limited?” Congressional Digest 5, no. 11 (November 1926): 315.
15. Annals of Congress, April 7, 1789, 104.
16. “The First Parliamentary Procedure to Limit House Floor Debate, July 07, 1841,” US House of Representatives, History, Art & Archives, http://history.house.gov/HistoricalHighlight/Detail/35501?ret=True.
17. Rules of the U.S. House of Representatives, https://rules.house.gov/sites/democrats.rules.house.gov/files/documents/116-House-Rules-Clerk.pdf.
18. Rules of the U.S. House of Representatives, https://rules.house.gov/sites/democrats.rules.house.gov/files/documents/116-House-Rules-Clerk.pdf.
19. Sarah A. Binder, Minority Rights, Majority Rule: Partisanship and the Development of Congress (New York: Cambridge University Press, 1997); Douglas Dion, Turning the Legislative Thumbscrew: Minority Rights and Procedural Change in Legislative Politics (Ann Arbor: University of Michigan Press, 1997); Koger, Filibustering a Political History of Obstruction in the House and Senate.
20. Burdette, Filibustering in the Senate, 80.
21. Including Arizona’s Henry Ashurst, who held up a revenue measure in the waning days of a 1917 short session, exclaiming: “Now the iron hand: You will pass the Indian bill, or you will get nothing,” Burdette, Filibustering in the Senate, 72 and 117.
22. Congressional Record, February 27, 1917, 4389; Burdette, Filibustering in the Senate, 116–17.
23. Lauren C. Bell, Filibustering in the U.S. Senate (Amherst, NY: Cambria Press, 2011), 151–53.
24. Burdette, Filibustering in the Senate, 123.
25. Congressional Record, March 5, 1917, 1, and March 8, 1917, 20.
26. For the original wording of the cloture amendment to Rule XXII, see Congressional Record, March 8, 1917, 40.
27. See, for example, Congressional Record, March 8, 1917, 20 and 31, for the remarks of Senators Pomerene and Stone, respectively.
28. Before 1917, the creative and aggressive use of procedural motions, particularly quorum calls, by the member or members conducting the filibuster could shift the burden onto the majority by forcing them to muster a quorum or deal with some other dilatory motion. Burdette, Filibustering in the Senate, puts some emphasis on this in his account of filibusters prior to the change in Rule XXII.
29. Bell, Filibustering in the U.S. Senate, provides direct evidence for this claim. Her analysis divides years after the creation of Rule XXII into four eras: 1917–36, 1937–1970, 1970–2004, and 2005–2010. In the 1937–70 period “civil rights, minority issues, and civil liberties” were the cause of 31 percent of all filibusters, by far the highest percentage for any issue area during any of the four eras. The same category fell to 6 percent in the following period from 1970–2004.
30. “Fatal Flood: James K. Vardaman,” n.d., PBS.org, http://www.pbs.org/wgbh/americanexperience/features/biography/flood-vardaman/.
31. Congressional Record, March 8, 1917, 39.
32. Burdette, Filibustering in the Senate, 57.
33. Richard E. Welch, “The Federal Elections Bill of 1890: Postscripts and Prelude,” Journal of American History 52, no. 3 (December 1965): 511–26. The Senate could not defeat the filibuster even with the addition, by the time debate started on the bill, of twelve additional Republican senators from the six freshly minted western states of North Dakota, South Dakota, Montana, Washington, Idaho, and Wyoming.
34. Quoted in David Bateman, Ira Katznelson, and John S. Lapinski, Southern Nation: Congress and White Supremacy after Reconstruction (Princeton, NJ: Princeton University Press, 2020), 216. Congressional Record, May 20, 1897, 1199.
35. Eleanor Flexner and Ellen Fitzpatrick, Century of Struggle: The Woman’s Rights Movement in the United States, Enlarged Edition, 3rd rev. ed. (Cambridge, MA: Belknap Press of Harvard University Press, 1996). Tennessee is famous for becoming the decisive thirty-sixth state to ratify, by the margin of one vote in the legislature. States of the former Confederacy made up eight of the eleven states that had not ratified by the end of 1920.
36. Congressional Record, January 26, 1922, p. 1795. The House of the Sixty-Seventh Congress had a membership of 302 Republicans and 131 Democrats (https://history.house.gov/Institution/Party-Divisions/Party-Divisions).
37. Congressional Record, December 4, 1922, p. 450. For a detailed account of the genesis and fate of this first attempt, see Claudine L. Ferrell, “Nightmare and Dream: Antilynching in Congress, 1917–1922,” Ph.D. diss., Rice University, 1983.
38. US Congress, Senate Committee on Rules and Administration, Senate Cloture Rule: Limitation of Debate in the Congress of the United States and Legislative History of Paragraph 2 of Rule XXII of the Standing Rules of the United States Senate (Cloture Rule), prepared by the Congressional Research Service, 112th Cong., 1st sess. (Washington, DC: Government Printing Office, 2011), 47; Geoge C. Rable, “The South and the Politics of Antilynching Legislation, 1920–1940,” Journal of Southern History 51, no. 2 (1985): 201–20; Robert L. Zangrando, “The NAACP and a Federal Antilynching Bill, 1934–1940,” Journal of Negro History 50, no. 2 (1965): 106–17.
39. Lindsay Rogers, The American Senate (New York: Knopf, 1926), 169.
40. George Henry Haynes, The Senate of the United States: Its History and Practice (New York: Russell and Russell, 1938), 419.
41. Congressional Record, March 3, 1927, 5547–55. The incident likely had little to do with the woman supposedly involved. Heflin accosted the Black man, Louis Lundy, for drinking alcohol on the streetcar (Heflin was a teetotaler and had sponsored unsuccessful legislation to segregate the capital’s streetcars). See also Burdette, Filibustering in the Senate, 152–62.
42. Donald Nieman, Promises to Keep: African Americans and the Constitutional Order, 1776 to the Present (New York: Oxford University Press, 1991), 106–7.
43. US Congress, Senate Committee on Rules and Administration, Senate Cloture Rule, 47–48; Bell, Filibustering in the U.S. Senate.
44. Janice E. Christensen, “The Constitutionality of National Anti-Poll Tax Bills,” Minnesota Law Review 33, no. 3 (1949): 218–21.
45. Ira Katznelson, Fear Itself: The New Deal and the Origins of Our Time (New York: Liveright, 2013), 198–216.
46. Five southern states continued poll tax enforcement for state elections until stopped by the Supreme Court two years later in Harper v. Virginia State Board of Elections.
47. As one form of evidence, see the timeline of attempts to reform Rule XXII, in US Congress, Senate Committee on Rules and Administration, Senate Cloture Rule, 17–41.
48. Congressional Record, March 11, 1949, 2233.
49. Congressional Research Service, “Amending Senate Rules at the Start of a New Congress, 1953–1975: An Analysis with an Afterword to 2015,” February 23, 2016, 35.
50. Alexander Keyssar, “How Has the Electoral College Survived for This Long?,” New York Times, August 3, 2020; Congressional Research Service, “Senate Cloture Rule,” 53–54.
51. Congressional Record, January 17, 1975, 756.
52. Barbara Sinclair, The Transformation of the U.S. Senate (Baltimore, MD: Johns Hopkins University Press, 1989).
53. Alan Abramowitz and Jeffrey Allan Segal, Senate Elections (Ann Arbor: University of Michigan Press, 1992).
54. Walter J. Oleszek, Congressional Procedures and the Policy Process, 9th ed. (Thousand Oaks, CA: CQ Press, 2014), 270–71.
55. Bell, Filibustering in the U.S. Senate, 65; Walter J. Oleszek et al., Congressional Procedures and the Policy Process, 10th ed. (Thousand Oaks, CA: CQ Press, 2016).
56. For a thorough recent overview of Senate holds, see Mark J. Oleszek, “‘Holds’ in the Senate” (Washington, DC: Congressional Research Service, January 24, 2017).
58. Walter J. Oleszek, Congressional Procedures and the Policy Process, 7th ed. (Washington, DC: CQ Press, 2007), 200–202.
59. Manu Raju and Meredith Shiner, “Shelby Puts Hold on Obama Noms,” Politico, February 2, 2010, https://www.politico.com/story/2010/02/shelby-puts-hold-on-obama-noms-032584.
60. Oleszek, “‘Holds’ in the Senate.”
61. Steven S. Smith, Call to Order: Floor Politics in the House and Senate (Washington, DC: Brookings Institution Press, 1989), 94–119.
62. James I. Wallner, The Death of Deliberation: Partisanship and Polarization in the United States Senate (Lanham, MD: Lexington Books, 2013).
63. Barbara Sinclair, “The ‘60-Vote Senate,’” in U.S. Senate Exceptionalism, ed. Bruce I. Oppenheimer (Columbus: Ohio State University Press, 2002), 241–61; David R. Mayhew, “Supermajority Rule in the U.S. Senate,” PS: Political Science and Politics 36, no. 1 (January 2003): 31–36; Gregory J. Wawro, “The Supermajority Senate,” in The Oxford Handbook of the American Congress (Oxford: Oxford University Press, 2011), 426–50.
64. Richard S. Beth, “Filibusters in the Senate, 1789–1993” (Washington, DC: Congressional Research Service, 1994); Bell, Filibustering in the U.S. Senate.
65. Frances E. Lee, Beyond Ideology: Politics, Principles, and Partisanship in the U.S. Senate (Chicago: University of Chicago Press, 2009), 3.
66. Lee, Beyond Ideology: 4.
67. Steven S. Smith, The Senate Syndrome (Norman: University of Oklahoma Press, 2014), 3.
68. Smith, The Senate Syndrome, 9.
69. Megan Lynch, “Unanimous Consent Agreements Establishing a 60-Vote Threshold for Passage of Legislation in the Senate” (Congressional Research Service, May 19, 2008), 1. As Lynch notes, “By incorporating a 60-vote threshold, such UC [unanimous consent] agreements avoid the multiple requirements associated with Senate Rule XXII, both for invoking cloture and for consideration under cloture.”
70. Lynch, “Unanimous Consent Agreements Establishing a 60-Vote Threshold for Passage of Legislation in the Senate.”
71. Senate roll call data compiled and provided to the author by Gregory Koger.
72. This excludes only the relatively few supermajority votes specified by the Constitution and requiring two-thirds of all senators voting, particularly veto overrides.
73. The Senate Defense Authorization Bill is another notable example. By tradition, that bill has come to the floor trailed by a long list of amendments, to be voted up or down.
74. Barbara Sinclair, “The New World of U.S. Senators,” in Congress Reconsidered, ed. Lawrence C. Dodd and Bruce Ian Oppenheimer, 9th ed. (Washington, DC: CQ Press, 2009), 10–11.
75. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999).
76. Whittington, Constitutional Construction, 11–12.
77. Gregory Koger, “Filibusters and Majority Rule in the Modern Senate,” in Congress Reconsidered, ed. Lawrence C. Dodd and Bruce I. Oppenheimer, 11th ed. (Washington, DC: CQ Press, 2017), 317.
78. Article I, section 7, by specifying that any bill not “returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law,” ensures that the president cannot just refuse to act on measures that have received congressional approval.
79. Congressional Record, February 15, 2018, S1141. Emphasis added.
80. For contrasting discussions of the Court’s possible role, see Catherine Fisk and Erwin Chemerinsky, “The Filibuster,” Stanford Law Review 49, no. 2 (January 1997): 224–38; and Josh Chafetz, “The Unconstitutionality of the Filibuster,” Connecticut Law Review 43, no. 4 (May 2011): 1036–37.
81. Assuming, that is, that none of the basic constitutional powers attached to the branches are, as worded, controversial. Any such changes would require a constitutional amendment.
82. The exceptions might be those signing statements—including George W. Bush’s most famous, attached to the 2005 Detainee Treatment Act—that involve secret presidential action, such that Congress would not know whether the president had ignored something Congress had legislated; in this case, a prohibition against torture. Even so, the social construction behind Bush’s extraordinary assertions—the unitary presidency—was openly contested and not widely accepted.
1. Congressional Record, January 27, 2011, S42.
2. At least one journalist covering this episode invoked the movie in the same way to refer to allegedly traditional filibusters. Paul Kane, “Senate in Long Recess as Leaders Seek to Rein in Democrats’ Filibuster Rebellion,” Washington Post, January 22, 2011.
3. Reid quoted by Senator Lamar Alexander, Congressional Record, January 5, 2011, S29.
4. Congressional Record, March 8, 1917.
5. Five senate debates on cloture—from 1917, 1949, 1959, 1975, and 2011—were examined in their entireties as recorded in the Congressional Record. Any comment, however long or short, that made an argument either in support of or opposition to filibusters or supermajority cloture was recorded and categorized. These debates are spread across the one hundred years from the creation of supermajority cloture to the present and are the longest debates on the filibuster and Rule XXII. As supermajority cloture became more controversial, there was a number of relatively brief debates from 1993 onward, with the one of some length in 2011. But as the one in 2011 was short, I have supplemented it with the hearings on congressional reform from 1993–1994 and from Senate action on judicial nominations in 2005, 2013, and 2017. I also draw on, in a less systematic fashion, the long floor debate in 1959, as well as on opinion essays by politicians and pundits across the century from 1917 to 2017.
6. Richard A. Arenberg and Robert B. Dove, Defending the Filibuster: The Soul of the Senate (Bloomington: Indiana University Press, 2012), xiv–xv.
7. I would argue that this is the principal problem with Arenberg and Dove, Defending the Filibuster, but they are not alone in this regard.
8. Congressional Record, 1917, 22–23.
9. Robert C. Byrd, The Senate, 1789–1989, edited by Mary Sharon Hall, 2 vols. (Washington, DC: Government Printing Office, 1988), 2:162–63.
10. Arenberg and Dove, Defending the Filibuster, 77.
11. Senator Barack Obama, Remarks to the National Press Club, April 26, 2005, https://www.c-span.org/video/?186464-1/social-security.
12. Carl Hulse, “Senators Agree to Disagree on How to Fix a Split Senate,” New York Times, December 6, 2020, 16.
13. Congressional Record, January 23, 1975, 1150.
14. Jennifer Steinhauer, “What if the Senate Goes Beyond the Filibuster ‘Nuclear Option,’”? New York Times, April 5, 2017.
15. Joint Committee on the Organization of Congress, “Floor Deliberations and Scheduling,” 103, 1st, pp. 98 and 225.
16. Congressional Record, March 11, 1949, 2227.
17. The quotation is from Moncure D. Conway, Republican Superstitions as Illustrated in the Political History of America (London: Henry S. King & Co., 1872), 47–48. See “Senatorial Saucer,” https://www.monticello.org/site/research-and-collections/senatorial-saucer. This brief entry notes that there is no evidence that the conversation took place. “Senatorial Saucer” cites the 1872 book as the earliest publication of the anecdote.
18. Quoted in Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Washington, DC: Brookings Institution Press, 1997), 20. From Congressional Record, June 22, 1995, S8864.
19. Senator Royal S. Copeland, in Congressional Digest, vol. 5, no. 11 (November 1926), 302.
20. Chuck Hagel and Gary Hart, “Restoring Democracy to the U.S. Senate,” Time, December 21, 2010. Reprinted in the Congressional Record, January 5, 2011, S22.
21. Section 359, “impertinent, superfluous, or tedious speaking,” http://www.gpo.gov/fdsys/pkg/HMAN-111/html/HMAN-111-pg172.htm.
22. US Senate, Committee on Rules and Administration, Examining the Filibuster, 2010, 111th Cong., 2nd sess., Washington, DC: US Government Printing Office (italics added).
23. Congressional Record, January 5, 2011, S30.
24. To supplement the 2011 debate, I also drew on three more sources for the contemporary period: the congressional deliberations over congressional reform in 1993 and 1994, the squabble over judicial nominations in 2005, and the brief cloture reform debates in 2011 and 2013. While precise comparison is unavailable, from the 1990s onward almost any skirmish over the filibuster featured arguments that tied it directly or indirectly to the founding. We can conclude confidently that they are a bigger percentage of the arguments made than in 1917, 1949, and probably 1959.
25. Congressional Record, January 27, 2011, S297.
26. Senator Mitch McConnell testimony before Senate Rules Committee, “Examining the Filibuster,” 111th Congress, 2nd sess., April 22, 2010, https://www.govinfo.gov/content/pkg/CHRG-111shrg62210/html/CHRG-111shrg62210.htm.
27. US Senate, Committee on Rules and Administration, Legislative Reorganization Act of 1994.
28. Congressional Record, January 27, 2011, S315.
29. Congressional Record, 1949, 2083.
30. Congressional Record, 1949, 1916.
31. Congressional Record, March 7, 1975, 5634.
32. Senator Larry Craig, Hearings Before the Joint Committee on the Organization of Congress, Open Days for Members and Outside Groups, June 16 and 29, 1993, S Hrg. 103–128. US Government Printing Office, 114–15.
33. Congressional Record, 1975, 5636.
34. Senator Howard Smith, Congressional Record, March 11, 1949, 2237.
35. Congressional Record, 1949, 1921.
36. Congressional Record, March 10, 1975, 5532.
37. Roll Call, “Take Five,” April 17, 2012, http://www.rollcall.com/news/take-five-daniel-inouye.
38. Congressional Record, October 21, 1996, S12421.
39. Congressional Record, November 30, 2010, S8278–79.
40. William Safire, “Not ‘Ready to Go,’” New York Times, April 8, 1993, A15.
41. George Will, “The Filibuster Isn’t What It Used to Be: It’s Time to Bring the Old Way Back,” Washington Post, March 29, 2017.
42. Neil MacNeil and Richard A. Baker, The American Senate an Insider’s History (New York: Oxford University Press, 2013), 359. This is basically the thought that ends their book, aside from some brief and general discussion of tradition and reform. The authors take no stand whatsoever on the need for Senate reform, but they apparently are firmly convinced that equal representation is a constitutional warrant for supermajority cloture in service of minority rights.
43. Virginia A. Seitz and Joseph R. Guerra, “A Constitutional Defense of Entrenched Senate Rules Governing Debate,” Journal of Law & Politics 20, no. 1 (2004): 1–32.
44. Lindsay Rogers, The American Senate (New York: Knopf, 1926), 163.
45. Congressional Record, March 9, 1949, 2066. See also the remarks of Senator Lyndon Johnson on the same day (p. 2043) and Senator Joseph Lister Hill on March 5, 1949 (p. 1916).
46. Arenberg and Dove, Defending the Filibuster, 156–57.
47. Emmet J. Bondurant, “The Senate Filibuster: The Politics of Obstruction,” Harvard Journal on Legislation 48, no. 2 (Summer 2011): 467.
48. Stephen Ansolabehere, James M. Snyder, Jr., and Michael M. Ting, “Bargaining in Bicameral Legislatures: When and Why Does Malapportionment Matter,” American Political Science Review 97, no. 3 (August 2003): 471–81; Frances E Lee, “Bicameral Representation,” in Oxford Handbook of the American Congress (Oxford: Oxford University Press, 2011).
49. This combines the provisions of subsections 2 and 3 of Article I, section 7.
50. Bondurant, “Senate Filibuster,” 481. Bondurant goes on to show how the Supreme Court in decisions from Marbury v. Madison to Clinton v. New York has applied expressio unius in major decisions about the powers of Congress.
51. Michael J. Gerhardt, “The Constitutionality of the Filibuster,” Constitutional Commentary 21, no. 2 (2004): 456.
52. Gerhardt, “Constitutionality of the Filibuster,” 456.
53. Richard S. Beth, “The Discharge Rule in the House: Recent Use in Historical Context” (Washington, DC: Congressional Research Service, April 17, 2003).
54. Bondurant, “Senate Filibuster,” 494–95.
55. Jed Rubenfeld, “Rights of Passage: Majority Rule in Congress,” Duke Law Journal, 1996, 79.
56. Bondurant, “Senate Filibuster,” 481.
57. Bondurant, “Senate Filibuster,” 480.
58. Julian N. Eule, “Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity,” American Bar Foundation Research Journal 12, no. 2/3 (April 1, 1987): 379–459.
59. Seitz and Guerra, “A Constitutional Defense of Entrenched Senate Rules Governing Debate,” 25.
60. John O. McGinnis and Michael B. Rappaport, “Symmetric Entrenchment: A Constitutional and Normative Theory,” Virginia Law Review 89, no. 2 (April 1, 2003): 385–445. Blackstone is quoted in Seitz and Guerra, “A Constitutional Defense of Entrenched Senate Rules Governing Debate,” 2.
61. Eric A. Posner and Adrian Vermeule, “Legislative Entrenchment: A Reappraisal,” Yale Law Journal 111, no. 7 (May 1, 2002): 1665–705.
62. Ernest Young, “The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda,” Journal of Constitutional Law 10, no. 2 (2008): 399–411.
63. Catherine Fisk and Erwin Chemerinsky, “The Filibuster,” Stanford Law Review 49, no. 2 (January 1997): 181–254; Josh Chafetz, “The Unconstitutionality of the Filibuster,” Connecticut Law Review 43, no. 4 (May 2011): 1003–40; Bondurant, “The Senate Filibuster.”
64. Tonja Jacobi and Jeff VanDam, “The Filibuster and Reconciliation: The Future of Majoritarian Lawmaking in the U.S. Senate,” February 20, 2013, 64, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2221712.
1. All quotations from Congressional Record, December 6, 2012, S7664.
2. Including The Daily Show (http://www.thedailyshow.com/watch/mon-december-10-2012/mitch-mcconnell-s-self-filibuster).
3. Floyd S. Riddick and Alan S. Frumin, “Riddick’s Senate Procedure: Precedents and Practices,” S. Doc. 101–28, 1992, https://www.gpo.gov/fdsys/pkg/GPO-RIDDICK-1992/content-detail.html.
4. Franklin L. Burdette, Filibustering in the Senate (New York: Russell and Russell, 1940), 55–57; Richard E. Welch, “The Federal Elections Bill of 1890: Postscripts and Prelude,” Journal of American History 52, no. 3 (December 1965): 511–26; Gregory J. Wawro and Eric Schickler, Filibuster: Obstruction and Lawmaking in the U.S. Senate (Princeton, NJ: Princeton University Press, 2006), 76–87.
5. Wawro and Schickler, Filibuster.
6. For discussions of the “constitutional option,” see Martin Gold, Senate Procedure and Practice, 3rd ed. (Lanham, MD: Rowman and Littlefield, 2013), 48–63; Martin B. Gold and Dimple Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” Harvard Journal of Law & Public Policy 28, no. 1 (2004): 205–72.
7. Congressional Record, 85th Cong., 1st sess., Jan. 4, 1957, pp. 178–79. Quoted in Gold, Senate Procedure and Practice, 2013, 50.
8. Gregory Koger and Sergio J. Campos, “The Conventional Option,” Washington University Law Review 91, no. 4 (2014): 867–909.
9. And that was not its only use to modify the application of Rule XXII. Roll Call, “Democrats’ Memo on Senate Precedent Changes,” July 15, 2013, https://www.rollcall.com/2013/07/15/democrats-memo-on-senate-precedent-changes/.
10. Koger and Campos, “The Conventional Option.”
11. For a detailed history and discussion of these legislative exceptions, see Molly E. Reynolds, Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate (Washington, DC: Brookings Institution Press, 2017).
12. US Senate, Committee on Rules and Administration, “Hearing on Senate Rule XXII and Proposals to Amend this Rule,” June 5, 2003, https://www.rules.senate.gov/public/index.cfm?p=CommitteeHearings&ContentRecord_id=6CB1CE4E-45EC-4410-A512-6CAD59DCED9B&Statement_id=FB558D4F-3501-4D78-A0F2-B09AC153B032&ContentType_id=14F995B9-DFA5-407A-9D35-56CC7152A7ED&Group_id=1983a2a8-4fc3-4062-a50e-7997351c154b&MonthDisplay=6&YearDisplay=2003.
13. 295 US 495 (1935).
14. See sections 6(a)-6(d) and 7(a)–7(d) of The War Powers Act of 1973, Public Law 93–148, 93rd Congress, H. J. Res. 542, November 7, 1973.
15. National Emergencies Act (50 U.S.C. 1601, 1621, 1622).
16. For an excellent overview of the importance and use of the reconciliation process, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress, 4th ed. (Washington, DC: CQ Press, 2012).
17. Trade Act of 1974, Public Law 93–618, as amended. See section 151.
18. For a history and analysis of how Congress did this, see Charlotte Twight, “Department of Defense Attempts to Close Military Bases: The Political Economy of Congressional Resistance,” in Arms, Politics, and the Economy: Historical and Contemporary Perspectives, ed. Robert Higgs (New York: Holmes and Meier, 1990); and Kenneth R. Mayer, “Closing Military Bases (Finally): Solving Collective Action Problems through Delegation,” Legislative Studies Quarterly, August 1995, 393–413.
19. Four rounds of BRAC—in 1988, 1991, 1993 and 1995—resulted in ninety-seven closures and fifty-five realignments of major installations, as well as over two hundred minor closures and realignments. US Government, General Accounting Office, “Military Bases: Analysis of the DoD’s 2005 Selection Process for Base Closures and Realignments,” GAO-05–785, July 2005, 18.
20. See, for example, E. Martin Enriquez, “Tyranny of the Minority: The Unconstitutional Filibuster and the Superimposed Supermajority on the Advice and Consent Clause of the Constitution,” T. M. Cooley Law Review 21 (2004): 215–56.
21. Michael J. Gerhardt, “The Constitutionality of the Filibuster,” Constitutional Commentary 21, no. 2 (2004): 459.
22. Data taken from Richard S. Beth, “Cloture Attempts on Nominations: Data and Historical Development” (Washington, DC: Congressional Research Service, June 26, 2013).
23. Beth, “Cloture Attempts on Nomination,” 2.
24. For more detail and analysis of the Senate’s increasing conflicts over judicial nominations, see Sarah A. Binder and Forrest Maltzman, “The Politics of Advice and Consent: Putting Judges on the Federal Bench,” in Congress Reconsidered, ed. Lawrence C. Dodd and Bruce I. Oppenheimer, 9th ed. (Washington, DC: CQ Press, 2009), 241–61.
25. Miguel Estrada (7 votes), Charles Pickering, William Pryor (2), Priscilla Owen (4), Carolyn Kuhl (2), Janice Brown. See Beth, “Cloture Attempts on Nominations,” 12.
26. The Senate website describes the Fortas nomination as having been filibustered. Some disagree that Fortas’s Senate opponents were determined to prevent an up or down vote, but the historical record seems clear that they were determined, and motivated not just by disagreement with Fortas but also by the prospect of preventing LBJ from replacing the Chief Justice before the end of his presidency. See http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm; John Dean, “The Facts About the Fortas Filibuster: Why Orrin Hatch Is Wrong,” May 9, 2005, http://hnn.us/articles/11753.html; Charles Babington, “Filibuster Precedent? Democrats Point to ’68 and Fortas; but GOP Senators Cite Differences in Current Effort to Bar Votes on Judges,” Washington Post, March 18, 2005, A03.
27. US Senate, Committee on Rules and Administration, “Hearing on Senate Rule XXII and Proposals to Amend this Rule,” June 5, 2003, https://www.rules.senate.gov/public/index.cfm?p=CommitteeHearings&ContentRecord_id=6CB1CE4E-45EC-4410-A512-6CAD59DCED9B&Statement_id=FB558D4F-3501-4D78-A0F2-B09AC153B032&ContentType_id=14F995B9-DFA5-407A-9D35-56CC7152A7ED&Group_id=1983a2a8-4fc3-4062-a50e-7997351c154b&MonthDisplay=6&YearDisplay=2003.
28. US Senate, Committee on Rules and Administration, “Hearing on Senate Rule XXII and Proposals to Amend this Rule,” June 5, 2003.
29. William Safire, “Nuclear Options,” New York Times, March 20, 2005; Jim VandeHei and Charles Babington, “From Senator’s 2003 Outburst, GOP Hatched ‘Nuclear Option,’” Washington Post, May 19, 2005.
30. Alexander Bolton, “Frist Finger on ‘Nuclear’ Button,” Hill, May 13, 2004.
31. “Memorandum of Understanding on Judicial Nominations,” 109th Congress, n.d.; Seth Stern, “Deconstructing the Judges Deal,” CQ Weekly, May 30, 2005, 1443. http://library.cqpress.com/cqweekly/weeklyreport109-000001700755.
32. Sarah A. Binder, Anthony J. Madonna, and Steven S. Smith, “Going Nuclear, Senate Style,” Perspectives on Politics 5, no. 4 (December 2007): 729–40.
33. With the help of such things as the use of budget reconciliation to evade any possible Senate filibuster of the Affordable Care Act.
34. Carl Hulse, “Senate Approves Reforms, but Leaves Filibuster Intact,” New York Times, January 27, 2011.
35. President Barack Obama, “Address before a Joint Session of the Congress on the State of the Union,” January 24, 2012, The American Presidency Project, University of California, Santa Barbara, http://www.presidency.ucsb.edu/ws/index.php?pid=99000.
36. Other minor reforms, many of which were written to expire at the end of the 113th Congress, did little if anything to decrease the power of minority obstruction. Two resolutions containing the reforms were agreed to by large bipartisan margins on January 24, under an agreement that mandated a sixty-vote threshold for approval: Congressional Record, January 24, 2013, S270–74.
37. Republicans dutifully introduced a bill to reduce the size of the court, which had no chance of passing.
38. Jeremy W. Peters, “Reid Preparing to Move for Limits on Filibuster,” New York Times, November 20, 2013, A16.
39. For the entire episode, see Congressional Record, November 21, 2013, S8414–8428.
40. All forty-five Republican senators voted to sustain supermajority cloture. They were joined by three Democrats—Carl Levin, Joe Manchin, and Mark Pryor.
41. Jeremy W. Peters, “Tempers Flare as New Rules Strain Senate,” New York Times, December 13, 2013, 1,18; Christina L. Boyd, Michael S. Lynch, and Anthony J. Madonna, “Nuclear Fallout: Investigating the Effect of Senate Procedural Reform on Judicial Nominations,” Forum 13, no. 4 (2016): 623, https://doi.org/10.1515/for-2015-0042; Ian Ostrander, “The Politics of Executive Nominations in the Post-Nuclear Senate,” Congress & the Presidency 44, no. 3 (2017): 323–43.
42. Charles Krauthammer, “The Democrats’ Outbreak of Lawlessness,” Washington Post, November 28, 2013. Not even halfway through this column, Krauthammer, who by this point in time was using nearly every one of his op-eds to excoriate President Obama and everything the president said or did, switches abruptly to presidential “lawlessness” related almost exclusively to the Affordable Care Act’s implementation.
43. Charles Krauthammer, “Nuclear? No, Restoration,” Washington Post, May 13, 2005.
44. See, for example, the comments of Senator Charles Grassley, Congressional Record, April 4, 2017, S2408.
45. April 4 in the legislative calendar of the Senate.
46. Burgess Everett and Glenn Thrush, “McConnell Throws down the Gauntlet: No Scalia Replacement under Obama,” Politico, February 13, 2016.
47. As this argument had no constitutional basis, Republican and Democratic senators also engaged in an unproductive debate about which side was being more hypocritical and whether there was any precedent for taking such an action. The Senate had never done anything like what McConnell was proposing. In July 1968 President Johnson, who had announced in March that he would not be seeking reelection, nominated Abe Fortas to replace retiring Chief Justice Earl Warren. Senator Robert Griffin, a Michigan Republican, organized more than half of his fellow Republican senators to oppose any nomination because such should be left to the next president. The Senate, however, did consider Fortas’s nomination, but it was blocked by a filibuster, and LBJ withdrew the nomination: Neil MacNeil and Richard A. Baker, The American Senate an Insider’s History (Oxford: Oxford University Press, 2013), 127–28.
48. CBS News poll, February 12–16, 2016, https://www.scribd.com/doc/299653496/CBS-News-poll-The-next-Supreme-Court-justice-Obama-and-the-economy. The question was: “As you may know, U.S. Supreme Court Justice Antonin Scalia passed away. Would you like to see the next Supreme Court justice appointed by President Obama before the election in November or appointed by the President who will be elected in November?”
49. An early entry was a letter to Senate leaders, signed by more than 350 law professors, who deemed consideration a “constitutional duty” (https://law.stanford.edu/publications/350-legal-scholars-letter-to-united-states-senate-leaders-mitch-mcconnell-charles-grassley-harry-reid-patrick-leahy-urging-them-to-fulfill-their-constitutional-duty-to-give-president-barack/). Michael J. Gerhardt and Richard W. Painter, “Majority Rule and the Future of Judicial Selection,” Wisconsin Law Review, 2017, 263–8; Josh Chafetz, “Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past,” Harvard Law Review 131 (2017): 96–132. See also Michael Gerhardt, “Getting the Senate’s Responsibilities on Supreme Court Nominations Right,” SCOTUSblog, March 9, 2016, http://www.scotusblog.com/2016/03/getting-the-senates-responsibilities-on-supreme-court-nominations-right/; David H. Gans, “Republicans Who Block Obama’s Supreme Court Pick Are Violating the Constitution,” New Republic, March 16, 2016; Michael D. Ramsey, “Why the Senate Doesn’t Have to Act on Merrick Garland’s Nomination,” Atlantic, May 15, 2016; and Jonathan H. Adler, “The Erroneous Argument the Senate Has a ‘Constitutional Duty’ to Consider a Supreme Court Nominee,” Washington Post, March 15, 2016.
50. This would leave a very large number of federal judgeships to be filled by President Donald Trump. Patrick Caldwell, “Senate Republicans Are Breaking Records for Judicial Obstruction,” Mother Jones, May 6, 2016; Charlie Savage, “Courts Reshaped at Fastest Pace in Five Decades,” New York Times, November 12, 2017, 1, 14.
51. Amber Phillips, “Senate Republicans Could Block Clinton Supreme Court Nominees Indefinitely. But It Wouldn’t Be the Best Idea.,” Washington Post, November 2, 2016; Sabrina Siddiqui, “Republican Senators Vow to Block Any Clinton Supreme Court Nominee Forever,” Guardian, November 2, 2016, sec. Law.
52. Ashley Killough and Ted Barrett, “Here’s How Senators Plan to Vote on Supreme Court Nominee Neil Gorsuch,” CNN, April 4, 2017.
53. This means, in effect, that the option of filibustering the “motion to proceed” is not available as far as nominations, which are always considered in executive sessions.
54. Tessa Berenson, “Senator Jeff Merkley Protests Neil Gorsuch With 15-Hour Speech,” Time, April 5, 2017.
55. As the new Congress was convening, at least one Democratic Senator, Charles Schumer, the newly-minted Minority Leader, expressed regret about the 2013 nuclear option, even though he was caucus leader of Senate majority at the time and voted for it. Mallory Shelbourne, “Schumer Regrets Dems Trigger of ‘Nuclear Option,’” Hill, January 3, 2017.
56. For the entire episode, see Congressional Record, April 4, 2017, S2383–2417. Despite the events happening on April 6, the executive session on this nomination was on the legislative day of April 4.
57. Georgia’s ailing Johnny Isakson was there for the crucial votes on April 6, but was back in Georgia recovering from back surgery on April 7.
58. Congressional Record, April 4, 2017, S2390–91. On restoration, see also McConnell, S2389.
59. Congressional Record, April 4, 2017, S2406.
60. Congressional Record, April 4, 2017, S2398.
61. Congressional Record, April 4, 2017, S2400.
62. Congressional Record, April 6, 2017, S2402.
63. Congressional Record, April 6, 2017, S2394.
64. James I. Wallner, On Parliamentary War: Partisan Conflict and Procedural Change in the U.S. Senate (Ann Arbor: University Of Michigan Press, 2017); Gregory J. Wawro and Eric Schickler, “Reid’s Rules: Filibusters, the Nuclear Option, and Path Dependence in the US Senate,” Legislative Studies Quarterly 43, no. 4 (2018): 619–47.
65. Congressional Record, April 6, 2017, S2388.
66. Elana Schor, “Bipartisan Pitch to Save Filibuster Gets 61 Senators’ Endorsements,” Politico, April 7, 2017.
67. Just after the Senate failed to advance what appeared to be its final attempt to repeal and replace the ACA, which as a reconciliation measure required only a simple majority vote, Trump tweeted: “The very outdated filibuster rule must go. Budget reconciliation is killing R’s in Senate. Mitch M, go to 51 Votes NOW and WIN. IT’S TIME!” (https://twitter.com/realDonaldTrump, July 29, 2017). This was not a first for the president. On May 2 he had tweeted, “We either elect more Republican Senators in 2018 or change the rules now to 51%.”
68. Carl Hulse, “Filibuster Fight Subsides, for Now, as Democrats Assume Full Senate Control,” New York Times, January 26, 2021; Jordain Carney, “Senate Passes Organizing Resolution after Schumer-McConnell Deal,” The Hill, February 3, 2021; Annie Linskey, Sean Sullivan, and Maria Sacchetti, “Pressure Grows on Biden to End the Filibuster,” Washington Post, March 5, 2021.
69. Burgess Everett, “Anti-filibuster Liberals Face a Senate Math Problem,” Politico, March 9, 2021, https://www.politico.com/news/2021/03/09/anti-filibuster-liberals-senate-474729; Editors, “The Filibuster Has Changed Before. It’s Time to Reform It Again,” Washington Post, March 9, 2021; Editors, “For Democracy to Stay, the Filibuster Must Go,” New York Times, March 11, 2021; Editors, “The Filibuster Is an Oddity That Harms American Democracy,” Economist, March 13, 2021.
1. Richard Hofstadter, The Age of Reform: From Bryan to F.D.R., reprint (New York: Vintage Books, 1990).
2. Frances E. Lee, “Patronage, Logrolls, and ‘Polarization’: Congressional Parties of the Gilded Age, 1876–1896,” Studies in American Political Development 30, no. 2 (2016): 116–27.
3. Jeffrey Jones, “Americans Split on Proposals for Popular Vote,” Gallup, May 14, 2019, https://news.gallup.com/poll/257594/americans-split-proposals-popular-vote.aspx; “Gallup Polls: Consistent Super-Majority Support for a National Popular Vote,” n.d., archive.fairvote.org/electoral_college/Gallup_Polls.pdf.
4. Pew Research Center, “Senate Legislative Process A Mystery to Many,” January 28, 2010, https://www.pewresearch.org/politics/2010/01/28/senate-legislative-process-a-mystery-to-many/.
5. Steven S. Smith and Hong Min Park, “Americans’ Attitudes about the Senate Filibuster,” American Politics Research, 2013, 1–26.
6. Pew Research Center, “The Public, the Political System and American Democracy,” April 26, 2018, http://www.people-press.org/2018/04/26/5-the-electoral-college-congress-and-representation/.
7. Ronald Brownstein, “Small States Are Getting a Much Bigger Say in Who Gets on the Court,” CNN Politics, July 10, 2018, https://www.cnn.com/2018/07/10/politics/small-states-supreme-court/index.html; Paul Krugman, “Real America Versus Senate America,” New York Times, November 8, 2018; Eric W. Orts, “The Path to Give California 12 Senators, and Vermont Just One,” Atlantic, January 2, 2019; Hans Noel, “The Senate Represents States, Not People. That’s the Problem.,” Vox, October 13, 2018; David Leonhardt, “The Senate: Affirmative Action for White People,” New York Times, October 19, 2018.
8. As we have seen, many senators have blamed their behavior rather than the rules of the Senate, for example. In the same way many prescriptions for how to fix American politics emphasize behavioral rather than institutional change. See, for example, Mickey Edwards, Parties Versus the People: How to Turn Republicans and Democrats into Americans. (New Haven, CT: Yale University Press, 2013).
9. For a closely related categorization and discussion of the differences, see Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 2nd ed, (New Haven, CT: Yale University Press, 2012). Lijphart distinguishes between what he calls the Westminster model of democracy and the consensus model of democracy. The Westminster model is the same as what I discuss above. The United States or Washington system is not a pure example of the consensus model, but it fits most of the characteristics in Lijphart’s typology.
10. Woodrow Wilson, Constitutional Government in the United States (New York: Columbia University Press, 1908).
11. Robert A. Dahl, “On Removing Certain Impediments to Democracy in the United States,” Political Science Quarterly 92, no. 1 (1977): 5.
12. Joseph S. Clark, The Senate Establishment (New York: Hill and Wang, 1963), 15–16.
13. Lindsay Rogers, The American Senate (New York: Knopf, 1926), 164. This is part of Rogers’s argument that the American system in the early twentieth century was neither a true separation of powers system nor a parliamentary system with the clear responsibility of majority control. Senate deliberation was a way to check the dangers of this hybrid system. For a strong defense of the system as a logical form of majority rule tempered by legal mechanisms to protect fundamental rights, see Jonathan Riley, “American Democracy and Majority Rule,” Nomos 32 (1990): 267–307. Riley does concede indirectly that the United States is at the outer edge of what might be practical or necessary (p. 287).
14. In making his argument that The Federalist, contra many interpretations, relies on public virtue, Garry Wills argues that Publius really sees the seemingly formidable system as only modestly antimajoritarian and that bicameralism is the only effective check. Gary Wills, Explaining America: The Federalist (Garden City, NY: Doubleday, 1981).
15. Sheryl Gay Stolberg, “The Decider,” New York Times, December 24, 2006.
16. For one of the most comprehensive reviews of various proposals, see James L. Sundquist, Constitutional Reform and Effective Government, rev. ed (Washington, DC: Brookings Institution Press, 1992). Other critiques of the American system that tilt toward or advocate specific reforms (especially in the direction of Westminster) include Daniel Lazare, The Frozen Republic: How the Constitution Is Paralyzing Democracy (New York: Harcourt Brace, 1996); Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (Oxford: Oxford University Press, 2006); and Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (Lawrence: University Press of Kansas, 2015).
17. On the proposal from political scientists William Howell and Terry Moe to give the president universal “fast-track” authority see their book, Relic: How Our Constitution Undermines Effective Government, and Why We Need a More Powerful Presidency (New York: Basic Books, 2016). Arguably the biggest problem with the Supreme Court is its unlimited tenure and the politics of the appointment process. For a comprehensive argument for staggered and limited terms, see Steven G. Calabresi and James Lindgren, “Term Limits for the Supreme Court: Life Tenure Reconsidered,” Harvard Journal of Law and Public Policy 29 (2006): 769–877.
18. Daniel Lazare, “Abolish the Senate,” Jacobin, December 2, 2014; John D. Dingell, “I Served in Congress Longer Than Anyone. Here’s How to Fix It.,” Atlantic, December 4, 2018.
19. Lynn A. Baker and Samuel H. Dinkin, “The Senate: An Institution Whose Time Has Gone?,” Journal of Law and Politics 13 (1997): 21–103.
20. Orts, “The Path to Give California 12 Senators, and Vermont Just One.”
21. In 2020, the House of Representatives passed a bill to make D.C. the fifty-first state, but that initiative had no chance of consideration, let alone passage, in the Republican Senate. On efforts to advance D.C. statehood early in the Biden administration, see Edward-Isaac Dovere, “The Window for D.C. Statehood Won’t Be Open Forever,” Atlantic, February 19, 2021, https://www.theatlantic.com/politics/archive/2021/02/will-dc-become-state-year/618065/. Note, among others, “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation,” Harvard Law Review, January 10, 2020.
22. Raymond Winbush, ed., Should America Pay? Slavery and the Raging Debate on Reparations, reprint ed. (New York: Amistad, 2003); Alfred L. Brophy, Reparations: Pro and Con (New York: Oxford University Press, 2008); Ta-Nehisi Coates, “The Case for Reparations,” Atlantic, June 2014.
23. Google Trends, for example, shows a small but consistent increase in reparations-related searches starting in 2015 followed by a large surge around the start of 2019 and another spike in June 2020 in the wake of the massive Black Lives Matter protests. On its history leading into the 2020 campaign, see Emma Goldberg, “How Reparations for Slavery became a 2020 Campaign Issue,” New York Times, June 18, 2020.
24. Congressional efforts, such as HR 40, a bill promoted for many years by Representative John Conyers, have focused on the formation of a commission to study the issue and make recommendations. For a directly monetary estimate and proposal, see William A. Darity and A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century (Chapel Hill: University of North Carolina Press, 2020).