Slender Majorities
posted by Gerard Magliocca
An argument against the health care bill is that, as Jefferson said, “Great innovations should not be forced upon slender majorities.” As a historical matter, you can find cases where this was done (two that come to mind are the renewal of the draft in 1940 (or maybe it was 1941), which passed by one vote in the House, and the [Cherokee] Removal Act of 1830, which survived the key procedural challenge in the House by one vote).
More generally, the proposition that broad bipartisan changes are somehow better than partisan ones is far from clear. You can find plenty of major errors made by supermajorities (Prohibition) that reflected a kind of group-think mentality. And you don’t often hear folks in parliamentary democracies lamenting the lack of bipartisan support–they just assume that the Government will put through its program and, if people don’t like it, they’ll vote somebody else in the next time. The fetish for bipartisanship seems to be distinctly American.
The Constitution is an interesting case study of this issue. Here were the ratification votes on the original document in the 13 states:
Georgia (unanimous)
New Jersey (unanimous)
Delaware (unanimous)
Maryland (63-11)
North Carolina (195-77)
Connecticut (128-40)
South Carolina (149-73)
Pennsylvania (46-23)
New Hampshire (57-47)
Massachusetts (187-168)
Virginia (89-79)
New York (30-27)
Rhode Island (34-32)
Take a close look at the votes in the last five states in my list. Those were close. If those states had taken Jefferson’s advice about slender majorities, would the Constitution have been ratified?
March 21, 2010 at 6:37 am
Posted in: Current Events
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Responses (8)
Dan Cole - March 21, 2010 at 1:50 pm
Gerard, what in the Health Care Reform bill do you consider to be a “great innovation” comparable to the constitution itself?
Dan
Ken - March 22, 2010 at 10:34 am
Dan, perhaps you needed something to use to take a swipe at Gerard, so you made up that comparison, while ignoring the point of the post, which was not specifically about the Health Care Insurance Reform, but was about the more general point of close votes vs. “supermajorities.”
Gerard postulated that (a) there are plenty of examples where supermajorities got it wrong, and (b) our Constitution, which we do NOT think was a mistake, might have failed if it needed supermajorities.
The way we got to this “supermajority” b.s., of course, is a procedural issue, not a constitutional issue. In an effort to keep filibusters against civil rights legislation from stopping all Senate business, Majority Whip Byrd came up with the “two track system” which allows the Senate to shuffle contentious legislation off to the side. Then, in a paroxysm of laziness, the Senate decided to allow a senator to “declare a filibuster” without actually doing one, enabling any senator to table any bill until a “supermajority” overrides him.
My contention is that if the Senate went back to their old procedures this problem would generally evaporate. We could see who says what, and we could also see who is merely obstructing the business of the Senate. That public visibility might cause senators to think twice about automatically obstructing everything proposed by the opposing party.
Dan Cole - March 22, 2010 at 7:23 pm
I wasn’t trying to take a swipe at Gerard. He raised the Constitution as a “case study of this issue.” I just don’t see anything in the health care reform package that constitutes a “great innovation,” including the individual mandate, which is probably the most controversial aspect as a political and constitutional matter.
Gerard Magliocca - March 22, 2010 at 7:31 pm
Ah, I’m a little behind on this thread. (Dan, BTW, is my faculty colleague, thus he need not take swipes at me here when he can take them in person.
)
Well, Dan, today the bill is being hailed as the most significant social legislation since the 1960s. I would call that a great innovation. What would you call it?
Dan Cole - March 23, 2010 at 6:33 am
Gerard: I take the key words in that sentence to be “since the 1960s.” How innovative can it be if it’s just doing something that hasn’t been done since then? Despite all the rhetoric, I just don’t see anything politically or constitutionally novel in it, unless we are to conclude that every new entitlement program would constitute what Jefferson would call an “innovation.”
I also wonder about the context, which I cannot discover, of Jefferson’s famous quotation. Perhaps you know it?
Gerard Magliocca - March 23, 2010 at 6:35 am
For us younger folks, the 1960s were a long time ago.
I don’t know the context of the Jefferson quote.
Dan Cole - March 23, 2010 at 6:51 am
I found a bit of context here: http://www.archive.org/stream/cu31924092892094/cu31924092892094_djvu.txt.
A fuller quote is: “we must depend on a classified
militia, which will give us the service of the class
from 20 to 26, in the nature of conscripts, composing
a body of about 250,000, to be specially trained.
This measure, attempted at a former session, was
pressed at the last, and might, I think, have been
carried by a small majority. But considering that
great innovations should not be forced on a slender
majority, and seeing that the general opinion is
sensibly rallying to it, it was thought better to let it
lie over to the next session, when, I trust, it will be
passed.”
In my view, in this context his injunction against basing “great innovations” – in this case, military conscription – on a “slender majority” was, in large measure, strategic, and premised on his view that it would pass by a larger majority in the next session of Congress.
A bird on a tether, no matter how long the rope, can always be pulled back - April 11, 2010 at 2:44 pm
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