Hate the Filibuster? Blame Aaron Burr. Yes, that Aaron Burr.

We need to bust a common myth about the Senate and the filibuster.

A common argument in favor of the filibuster, repeated today as gospel by the two Democratic senate holdouts in favor of retaining it, goes like this: The Senate was designed by the framers with the intent that it move more slowly and be more deliberate in its actions, and the filibuster helps ensure that collegiality and bipartisanship prevail.

Jimmy Stewart in Mr. Smith Goes to Washington. Herbert Dorfman/Corbis via Getty Images

This is nonsense. For starters, the filibuster exists nowhere in the U.S. Constitution at all. Indeed, its very existence runs counter to the intent of the framers who were quite wary of the risk of minority rule. Here’s what James Madison had to say on supermajority requirements, from Federalist 58:

“In all cases where justice or the general good might require new laws to be passed, …[i]t would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.”

Alexander Hamilton was equally disdainful of giving the minority such power. Here’s what he said about the failed provisions of the Articles of Confederacy that had required supermajorities, from Federalist 22:

"To give a minority a negative upon the majority…[is] to subject the sense of the greater number to that of the lesser....[I]ts real operation is 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, to the regular deliberations and decisions of a respectable majority....If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.”

Within the Constitution itself, the places requiring supermajoritarian votes are specific and limited. Two-thirds requirements in some form exist for senate conviction on impeachment charges, congressional expulsion of members, congressional overriding presidential vetoes, senate ratification of treaties, and congressionally proposed constitutional amendments.

It might be somewhat embarrassing for many of the filibuster’s champions to learn that the thing holding up the pressing business of our government and key legislation on voting rights, the minimum wage, and gun safety was nothing more than a historical accident—a long overlooked error. In 1806, a freshly indicted Vice President Aaron Burr (the fellow best remembered for killing Hamilton in a duel) summarily removed a provision from the Senate rules that had required a simple majority to force a vote on the question being debated. This was seen at the time as nothing more than a housekeeping, administrative matter, not at all controversial or impactful at the time.

On Broadway, Daniel Breaker plays Aaron Burr. Photo: Joan Marcus/Hamilton Uptown LLC

How do we know this? As Professor Sarah Binder noted in her testimony before the U.S. Senate Committee on Rules and Administration, back when the Senate last held hearings on the filibuster and its history and applicability, the rule books for the House and the Senate were practically identical in 1789. Both included something called the “previous question” motion. The House kept that rule, and today it allows a simple majority to end debate. The Senate no longer has that rule on its books because of Aaron Burr. (Curse his name.)

One day, Burr decided that the Senate rule book was in disarray and contained annoying redundancies, so he proposed eliminating measures to help clean it up. The Senate wasn’t really using the “previous question” motion anyway at the time because senators didn’t meet very frequently back then. So when Burr proposed the body get rid of it, they did so. Without a second thought. Because Aaron Burr told them to.

Now, for a very long time, this simply didn’t matter. Senators just didn’t filibuster bills. For three decades, in fact, no one used the power to prolong debate and hold up legislation. Then someone cleverly figured out that there was a curious loophole after the “previous question” motion had been axed, and the filibuster was born, likely to the surprise of many in 1837.

This of course gets us to the pressing, current question: Why on earth are we clinging to a procedural provision that ties up government, empowers a minority in violation of the intent of the framers, and resulted from nothing better than an oopsie by a well-intentioned but misguided indicted killer?

I’ll explore these and other questions in future installments. But fair warning: It will make you hate the filibuster even more.