If a Majority Could Never Be Slowed, a Satirical Tour of the 51-Vote Republic

This post is satire. It is a thought experiment, a made-up country with made-up laws, and nothing in the tour below is a report of anything that has happened or a prediction of anything that will. Where it describes lawmakers doing absurd things, the lawmakers are imaginary, the laws are imaginary and the only real thing is the point. Strap in. Actually, nobody asked you to strap in; the seatbelt law was repealed at 9:15 this morning and reinstated at 9:40.

That is the joke, and it is also the argument. Let us visit the Republic of Fifty-One, where a bare majority of one chamber can do whatever it likes the instant it likes it. There is one house. It has no filibuster. There is no veto, no second chamber, no staggered terms and no court that can say no. All the machinery that slows a majority has been taken out and stored in a basement, where it is being used as a bookshelf.

The rules of the thought experiment

Here are the assumptions, stated plainly so no one mistakes this for a policy proposal.

1. There is a single legislature. Any bill that gets fifty-one percent becomes law at once. (This replaces bicameralism, the rule in Article I, Section 1 and Section 7 of the Constitution that a bill must pass both the House and the Senate.)
2. There is no executive veto. (This replaces Article I, Section 7, where a president can return a bill with objections, and two-thirds of each house must then pass it again.)
3. All members are elected at the same time, every two years. (This replaces the Senate's six-year terms, staggered so that only a third are up in any one election, under Article I, Section 3.)
4. There is no supermajority rule of any kind, including the filibuster.
5. No court may strike down a law. (This replaces judicial review, the power asserted in Marbury v. Madison in 1803.)

The country is divided, as all countries are, between two roughly equal groups, which we will call the Reds and the Blues. Neither is meant to resemble a real party. They are placeholders. They have the usual temperaments: each is sure it is right, each thinks the other is dangerous, and each would like a Tuesday off.

Year One: the Reds win

The Reds win the election by a few votes and take office on the first day of the next year. By noon they have passed the Tax Simplification Act, which sets one rate on all income. By one o'clock they have repealed the Blues' health program. By two they have passed a law making it a crime to criticize the first three laws. (The imaginary Reds are not subtle.) By three a Blue citizen in the imaginary capital has been fined for the following sentence: "That seems a bit fast."

There is no one to stop them. There is no second chamber to say wait. There is no president to send a bill back with objections. There is no court that can ask whether the criminal law on criticism is consistent with a freedom of speech. The Reds are completely in charge, and, being human, they enjoy it.

In the capital's coverage the Reds' triumph is described as "a mandate for change." I would like to note that a mandate, in the imaginary press and the real one, is the word used for an election result when the writer likes the outcome. When the writer dislikes it, the word is "narrow."

Year Two: the Blues win

Two years pass and the Reds lose by a few votes. The Blues take office. By noon they have repealed the one-rate tax law and replaced it with eleven rates and a form that requires a notary and a goat. By one o'clock they have restored the health program, expanded it, and renamed it. By two they have repealed the law against criticism and passed a law against the praise of the Reds. By three a Red citizen is fined for saying, "The one-rate tax seemed fine."

Do you see the pattern? It is not that the Blues are worse than the Reds. In the thought experiment they are exactly the same. It is that a system with no friction turns every election into a coin toss with the entire legal code as the stake. A business that signed a ten-year contract under the one-rate law finds that the law is gone before the ink is dry. A family that bought a house on the strength of a mortgage rule finds the rule reversed by the time of the closing. In the Republic of Fifty-One nobody can plan more than eleven minutes ahead, which makes it a tremendous place for lawyers and a terrible place for anyone with a calendar.

Year Three, and the laws that flip

By Year Three the Republic has passed 40,000 laws, and 39,000 of them have been repealed. The statute books weigh more than the national monument. The citizens have developed a habit: before they do anything, they check the date. (A citizen who wakes up on a Tuesday and finds that his small business is now illegal is entitled to say a few words. In the Republic of Fifty-One those words are punishable, depending on who won last.)

A clever merchant in the imaginary capital opens a shop that sells nothing but yesterday's law books at a discount. He is the only man in the country who is certain to be right about the status of a law, and only about a law that no longer exists.

This is where the satire becomes an argument, because the thing I am joking about has a name in the founding literature, and the Founders saw it coming.

What Federalist 62 said

Federalist 62, which defends the Senate, makes a point that is easy to skip and impossible to forget once you have read it. The author argues that a changing legislature is a danger to the people it governs. The relevant passage warns that it will be of little use to the people that the laws are made by men of their own choice if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood, or if they are repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow.

That is a prediction of the Republic of Fifty-One written in 1788. The essay goes on to say that the faculty and excess of law-making seem to be the diseases to which our governments are most liable. A government that can change the law at the speed of a majority's mood is a government that cannot be trusted with a contract, a deed or a promise. See Federalist 62 Warned That Mutable Laws Betray a Free People for the passage read closely.

The point is not that laws should never change. The point is that they should change when a lasting majority, persuaded over time and tested by several institutions, wants them changed.

What Federalist 10 said

The other founding text that haunts the Republic of Fifty-One is Federalist 10. Madison defined a faction as a number of citizens, whether a majority or a minority of the whole, united by some common impulse of passion or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community. Note the phrase "whether a majority or a minority." A majority can be a faction. The thing to fear is not only the rich few; it is also the many, in a hurry.

Madison's remedy was not to abolish factions, which he said would be worse than the disease, but to build a government in which no faction could easily seize everything. A large republic, with many interests, makes it hard for a single faction to become a majority and harder for a majority to act in haste. Add separate branches, two chambers, a veto and a Senate with long terms, and a majority that wishes to oppress has to win several contests in a row, over several years, before it can do so. The Republic of Fifty-One has none of that, and so every faction that wins an election gets the whole machine.

For the longer discussion, see Federalist 10 Explains Why a Large Republic Tames Faction Best.

The steelman

Now I owe the other side a fair hearing, because a satire that only mocks is a cheap one.

The strongest case for the Republic of Fifty-One goes like this. Democracy means rule by the majority. If a majority of citizens wants a law and the system blocks it, the system is overruling the people. A Senate that gives Wyoming the same weight as California, a filibuster that lets forty-one senators halt a bill and a veto that lets one person override a legislature are all, on this view, machines for thwarting the public will. Why should a minority hold a veto over the majority?

That is a serious argument. It deserves a serious answer, and I offer three.

1. The Constitution does not promise rule by a majority at any moment. It promises a republic, a representative government under a written constitution, with rights that a majority may not take. Article IV guarantees every state a republican form of government. The word is not "democratic."
2. A majority is not the same as a lasting majority. The majority that wins a narrow election is not the majority that will exist in four years. The friction protects the country from the majority of the moment, which is often a majority of the angry.
3. The friction protects everyone, including the people who complain about it. The side that wishes to abolish a rule because it is in the majority this year is the side that will beg for it next year. Ask anyone who has been in the minority in a legislature.

The third point is the one the satire illustrates. The Reds love the Republic of Fifty-One in Year One and hate it in Year Two. So do the Blues. The rules that slow a majority are not partisan. They are insurance, and everyone is, sooner or later, in the minority.

The straight case for friction

Here I drop the joke. The real American system has several layers of friction, and each does a job.

• Bicameralism (Article I, Sections 1 and 7) requires two chambers, elected differently, to agree. The Senate's six-year terms, staggered by thirds (Article I, Section 3), give it a longer memory.
• The veto (Article I, Section 7) lets the president return a bill, and it takes two-thirds of each house to override. That number is hard to reach on purpose. You can see the arithmetic in The Numbers That Run Congress, From 218 to 60 to 290 to 38 and Back.
• Judicial review, asserted in Marbury v. Madison (1803), lets courts decline to enforce a law that contradicts the Constitution.
• The Senate's rules include the filibuster, which requires sixty votes to end debate on most bills. That one is a rule, not a constitutional requirement, and I will argue for it elsewhere; see The Filibuster After the Midterm, Why Sixty Votes Now Protect the Outnumbered.
• Federalism leaves most of the daily business of government to the states, which can differ from each other and from the national government. See Gridlock Is the Constitution Working, Not the Constitution Failing for the case that gridlock is the design.

Every one of these is a slowdown. Every one of them is annoying when your side has the majority. Every one of them is a lifeline when it does not. The conservative, of all people, ought to understand this, because conservatism is in large part the recognition that the speed of change is itself a policy choice and that some things, once broken, cannot be fixed by passing another law.

Back to the Republic of Fifty-One

Let us leave the Republic as we found it. It has a population of citizens who check the date before they leave the house and a government that changes its mind faster than a weather vane. The founders of the real republic looked at a country like that and decided to build something different. They did not make it impossible to change the law. They made it require persuasion, time and more than one institution's consent.

If you want one sentence to carry out of this post, it is this. A rule that protects the minority is a rule that protects you, because you will be in the minority at some point, on some issue, in some year. The rule is cheap insurance. The Republic of Fifty-One cancelled the policy, and then discovered the house was on fire.

The case in brief

1. This was a labelled thought experiment: a country where a bare majority can pass anything instantly, with no second chamber, veto, staggered terms, supermajority or judicial review.
2. In that country the laws flip with every election, because the entire legal code becomes the stake in every vote.
3. Federalist 62 warned of laws so changeable that no one could guess tomorrow's, and Federalist 10 warned that a majority can be a faction.
4. The best argument for the 51-vote republic is that majority rule is democracy; the answer is that the Constitution promises a republic and that the friction protects everyone, because everyone ends up in the minority.
5. The Founders did not forbid change. They required that change win over time and across institutions.

What you can do: read Article I, Sections 1, 3 and 7 of the Constitution at the Constitution page and write down which rule would hurt your side most if it vanished.