February 24, 1997

Madison & Hamilton Supported Super-Majorities

The writers of The Federalist said some hard words about super-majorities which are trotted out whenever Congress debates the Balanced Budget Constitutional Amendment (BBCA). Unfortunately, those hard words are almost always misused.

The Federalist on Super-Majorities.James Madison said that super-majorities transfer power from the majority to the minority and thereby "reverse" the "fundamental principle of free government." A minority can then frustrate the purposes of the majority even when "justice or the general good might require new laws to be passed or active measures to be pursued." The Federalist No. 58, at 397 (J.E. Cooke ed. 1961). Alexander Hamilton said that super-majorities may look like a remedy but are "in reality a poison." They operate "to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artifices of an insignificant, turbulent, or corrupt junto for the regular deliberations and decisions of a respectable majority." The Federalist No. 22, at 140.

This is strong stuff from two of America's giants. However, both Madison and Hamilton were strong supporters of super-majority requirements, and only by using The Federalist out of context can they be made to appear otherwise.

The Constitution Itself, Which The Federalist Was Written to Promote, Contains Super-Majorities. The Federalist was written to explain and promote a Constitution which, in its original version, contained super-majority requirements in seven places: Article I requires votes of two-thirds to convict on impeachment (3, cl. 6), to expel a Senator or Representative (5, cl. 2), and to override a presidential veto (7, cls. 2 & 3). Article II requires a two-thirds vote in the Senate to consent to treaties (2, cl. 2) and called for special majorities if the election of the President should be referred to the House of Representatives (1, cl. 3). Article V requires two-thirds of Congress and three-fourths of the States to amend the Constitution. Article VII required ratifications from 9 of the original 13 States before the Constitution could go into effect.

Madison (always) and Hamilton (sometimes) were in attendance at the convention when these super-majority requirements were adopted, and Madison himself was responsible for some of them. They signed the Constitution. They became its most able advocates. Snippets from Federalist No. 58 and No. 22 cannot obviate the fact that Madison and Hamilton strongly supported the Constitution with all of its super-majority requirements.

The Federalist, Which Itself Supports Super-Majorities, Must Be Read in Context to Be Understood. But how do we account for The Federalist's hard words on super-majorities? Quite easily, actually. The words merely need to be read in context:

What Madison was opposing in No. 58 was the suggestion that the House of Representatives should require a super-majority for a quorum and more than a majority of a quorum for a decision. Madison did not, of course, oppose all super-majority requirements for the House, but he did oppose suggestions put forward by opponents of the Constitution that additional super-majorities were desirable.

What Hamilton was opposing in No. 22 was the gridlock occasioned by the Articles of Confederation with its super-majority requirements and unit voting (each State had one vote).

Hamilton also said (in Federalist No. 75), "All provisions which require more than the majority of any body to its resolutions have a direct tendency to embarrass the operations of the government and an indirect one to subject the sense of the majority to that of the minority." Id., at 507. This sounds hard enough, but it appears in a paper about the making of treaties, and Hamilton strongly supported the two-thirds vote of the Senate as "one of the best digested and most unexceptionable parts of the plan." Id., at 503. What Hamilton was opposing in No. 75 was the suggestion that two-thirds of all members should be required on a vote rather than two-thirds of those members present.

Keep in mind, too, that complaints about super-majorities (especially for quorums) were a product of the times -- a horse-and-buggy era when interstate travel was long, difficult, and dangerous, and many legislators shunned regular travel to the seat of a weak central government.

Madison and Hamilton Supported Super-Majorities Independently. Finally, we know that both Madison and Hamilton thought super-majorities were sometimes necessary because they advocated them separately. In convention, Madison moved that a vote of two-thirds be required to expel a Senator or Representative. His motion carried 10 States to none. 2 Farrand, The Records of the Federal Convention of 1787 at 254 (1937 rev. ed.). It was also Madison who moved that if the choice of a President should fall to Congress, a quorum must consist of two-thirds. Id., at 526. Hamilton outlined his own plan for a government, but did not present it to the convention. He did, however, draw upon its principles in debate. That plan contained at least five requirements for super-majorities. 3 Farrand at 620, 623, 625, 627, 630.

Far from being opponents of super-majorities, Madison and Hamilton supported them. They supported them in the Constitution, in The Federalist, and in the convention. They supported them because some rights are "too important to be exercised by a bare majority of a quorum." 2 Farrand at 254 (Madison speaking on expulsion). Spending our children's inheritance is one of these rights -- a right too important to be exercised by a bare majority.

[Some of the quotations from The Federalist have been edited slightly.]