GOP Senate Power Contradicts James Madison, Constitution
A rare thing happened last week.
Republican Senators didn’t name-drop a Founding Father to justify their grip over America’s legal system.
Last Tuesday, the U.S. federal judiciary announced it was closing a loophole which allowed plaintiffs to choose the judges that would hear their cases, a policy justifiably called “judge shopping” and regularly used and abused by Texas’ Attorney General and anti-abortion groups, among others.
Then two days later, Senate Minority Leader Mitch McConnell and fellow Republican Senators John Cornyn and Thom Tillis, who desperately want to keep judge-shopping alive and well, lodged their complaints against the move in a signed letter.
There was nothing interesting in their 500-word plea for power. However, what was surprising was what wasn’t in it—any reference to a Founder or Framer.
Call it a deviation from the mean. They’ll get back to it soon. They depend on it.
Conservatives, including conservative (and small-state) Democrats, frequently invoke the Founders, particularly the direct authors (aka Framers) of the Constitution. And within their patriarchal ancestor-worshipping rituals, James Madison holds a special place.
You can tell because they mention Madison, arguably, more than any other Founder-Framer.
Mitch McConnell, though certainly not the only one, is the most important repeat offender:
Back in February 2020, then-Senate Majority Leader McConnell’s caucus represented a majority of states but a minority of citizens; and to justify acquitting then-President Trump after being convicted in December by the Democratic-led House—where a majority of Congressional Districts, by definition, represents a majority of citizens—McConnell deployed the Founders, in general, and Madison (and Hamilton), in particular:
“We cannot let factional fever break our institutions,” said McConnell. “It must work the other way, as Madison and Hamilton intended. The institutions must break the fever… The United States Senate was made for moments like this…”
Replace “factional fever” with “majority rule”, and you’ll see where this is going.
A year later McConnell had been demoted to Senate Minority Leader, who now represented a minority of states and an even smaller minority of citizens; and he brought out Madison again, this time to provide intellectual ammo to shoot down Senate Democrats’ attempts to repeal the filibuster, aka the 60-vote threshold giving Senate minorities power to thwart majority-supported legislation, appointments, etc.
“When it comes to lawmaking, the Framers’ vision and our history are clear,” said McConnell in late January 2021. “The Senate exists to require deliberation and cooperation. “James Madison said the Senate’s job was to provide a ‘complicated check’ against ‘improper acts of legislation.’”
Two months later, the longest-serving Senator in Kentucky history repeated himself virtually verbatim, re-resurrecting Madison to rationalize his minority caucus’ opposition to repealing the filibuster as Democrats still threatened nuking it.
“Madison said the Senate should be a ‘complicated check’ against ‘improper acts of legislation,’” McConnell re-lectured.
What’s Going On Here?
McConnell’s frequent invocation of the Father of the Constitution masks his conservative caucus’ collective inferiority complex:
McConnell is the longest-serving party leader in the history of the Senate and, arguably, its most influential; and yet during his entire tenure as Majority and Minority Leader, spanning 2007 to 2024, Republicans have not once represented a majority of citizens.
In fact, though Republicans have controlled the Senate for about 18 of the last 34 years, they’ve only represented a majority of Americans for two of those 34 years. Yes, you read that right—just two years since 1990.
However, not representing a majority hasn’t kept conservatives from controlling–among many other aspects of American life—the composition of the federal judiciary. After all, “five of the [Supreme Court’s] six conservative justices … have been confirmed by senates with Republican majorities that represented fewer Americans than their corresponding Democratic minorities.”
And as Senate Majority Leader during the last two years of the Obama administration, McConnell didn’t only block Obama from filling the seat vacated by Antonin Scalia’s death. McConnell prevented a President elected by a majority of Americans—65.9 million to be precise—from filling more than 100 vacancies in lower federal courts, including 17 nearly-omnipotent appellate court seats.
With McConnell’s blessing, President Donald Trump made sure to fill those vacancies with right-wing zealots, who were as unrepresentative of the American public as McConnell’s Senate caucus—think male and pale.
This is where Madison comes in.
Republicans’ greatest, most enduring source of control over American life over the last three decades has derived from the Senate and the Supreme Court majority they’ve used it to create.
And Republicans like McConnell want—no, need—Americans to believe that their disproportionate power reflects the principles of the Founders, especially the Father of the Constitution.
But what if the Founding Father whom Republicans invoke most to justify their disproportionate power supplied the most damning argument against the morality of their rule and the Supreme Court majority they’ve created?
What if that Founder literally called the dynamics upon which conservative power for the last three decades is based “evil?”
Sit Down. Buckle Up. Read On.
Conservatives claim to place the values of the Founders above anyone living or dead, except Jesus Christ (and, maybe, Moses). They’ve loudly hitched their ideological wagon to these men. But if the principles of the Father of the Constitution directly, overtly undercut those values, particularly the morality of minority rule, the entire ideological edifice of contemporary conservatism would be revealed as a sham—a fraudulent myth used to rationalize the power of the few over the many.
Well, actually…
As paradoxical as it might sound, the Constitution—especially the design of the Senate and the judiciary—does not reflect the Father of the Constitution’s principles.
You read that right.
“While [Madison] consistently argued for constitutional principles that would reflect his vision of a national republic based directly on equal citizens (not equal states),” wrote the late political theorist Robert Dahl in his classic Preface to Democracy, “in order to achieve agreement on an imperfect but satisfactory Constitution he also accepted compromises on certain features that he wholeheartedly opposed in principle—notably, equal representation of states in the Senate.”
Here’s Madison verbatim argument from—of all places—the floor of the Constitutional Convention on July 14, 1787, railing against creating a Senate based on equal states not equal citizens, precisely because he foresaw a system enabling minority rule:
“The minority could negative the will of the majority of the people,” thundered Madison. “[The minority] could extort measures making them a condition of their assent to necessary measures… They could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate…”
Madison went further that same hot, humid day in Philadelphia:
“The evil instead of being cured by time would increase with every new state that should be admitted as they must all be admitted on the principle of equality.”
Let that sink in.
That’s Madison literally calling a system by which a minority of citizens could overrule a majority via a Senate based on equal states not equal citizens “evil”.
Does that sound like the Father of the Constitution would be cool with a party controlling the Senate for 18 of the last 34 years despite the fact that it has only represented a majority of citizens for one-ninth that time?
But that’s not all.
Madison wasn’t just irate at the idea of a minority of citizens controlling the Senate. He was outraged at the possibility of putting the power of the judiciary in the Senate’s hands because a Senate based on equal states not equal citizens would allow a minority to control the legal system:
Here’s Madison on July 21, 1787, lambasting such a system:
“… Judges might be appointed by a minority of the people, tho’ a majority of the states, which could not be justified on any principle…”
Madison’s motives weren’t as pure as snow. Though not a vocal defender of slavery, he ran interference for the South’s slaveowners; and his definitions of “citizens” excluded all but white men; and Madison was, indeed, concerned about protecting minorities from tyrannical majorities as he makes clear in Federalist No. 10. Madison feared direct democracy, which he associated with mob rule. In fact, Madison might have been the founder most concerned about protecting minorities, which is why Republicans keep trying to leverage him.
But Madison never wanted to give the minority keys to the kingdom—the power to overrule a more populous, productive majority.
Towards the end of his life, Madison made his feelings clear: Republican government implied majority rule.
“If majority governments,” Madison wrote in 1834, “be the worst of governments those who think and say so cannot be within the pale of the republican faith. They must either join the avowed disciples of aristocracy, oligarchy or monarchy, or look for a utopia exhibiting a perfect homogeneousness of interests, opinions and feelings nowhere yet found in civilized communities.”
As political theorist Dahl writes in Preface to Democracy, “Madison’s defense of the principle [of majority rule] was forceful and unambiguous.”
Conservatives’ creeping power over every aspect of American life over the last 30 years is not un-Constitutional, to be sure. But in the words of the very Founder whose values they claim to respect most, it is “evil”, and it can “not be justified on any principle.”