West Virginia's Founding Politicians Understood Democracy Better than Today's
Map of Virginia, 1861, showing the proportion of enslaved persons among the population of each county.
In previous 21st century elections, candidates defined themselves on issues like taxes, health care, gay marriage, and America’s role in policing terrorism. Increasingly, democracy itself is the issue. How much power should the majority coalition possess? How much power should the opposition possess? Senator Mike Lee of Utah has warned that “democracy isn’t the objective” of American government, but rather “liberty, peace, and prosperity,” which might be overrun by “rank democracy.” The Democratic party is fiercely debating whether they should abolish the filibuster while they hold a slim Senate majority. Intended to promote harmony, the filibuster has become a polarizing and paralyzing force on American democracy. It is a custom of the United States Senate that allows a minority coalition (as small as 41 senators) to block a bill supported by the majority. History offers several deleterious examples of giving a legislative minority the ability to suppress the majority. One such example can be found in antebellum Virginia, where an Eastern slaveholding elite feared losing their majority to politicians from the rapidly growing, mostly non-slaveholding population of Western Virginia. To prevent this, Easterners concocted rules that allowed slaveholders (and thus, Easterners) extra power in the legislature. This sense of political oppression by an elite minority generated immense antipathy in Western Virginia, eventually leading to the rupture of the state during the American Civil War. The filibuster is today generating similar charges of anti-democratic minority rule. More ominously, the filibuster, like slaveholders’ grip on the Virginia legislature, has a long history of being used to maintain racial supremacy. American democracy has continually evolved past such elite-driven checks on the majority. Reforming or abolishing the filibuster would be a proactive measure to form a more perfect Union.
For three decades before the Civil War, Eastern Virginia’s leaders resisted calls for democratic reform from the Western portion of the state (modern day West Virginia). Antebellum Virginia was one of the least democratic states in the Union. Of course, no state was a true democracy in the early 19th century, as all women and men of color were denied citizenship. But even under this more limited conception, Virginia’s government proved demonstrably more oligarchic than other states. Westerners advocated for a raft of egalitarian measures, such as a tax code that ended significant loopholes for slaveholders; eliminating wealth requirements for White male suffrage; popular election of the governor (rather than legislative); public schooling; a secret ballot; and a more responsive local government. But their most animating issue, by far, was ending the “mixed basis” of Virginia’s legislature, which rewarded slaveholders with additional representation by counting their enslaved human property in the population tallies that apportioned political seats. Easterners argued that those who possessed the most property in the state deserved more say in its affairs. Westerners proposed the “White basis,” which would apportion the state legislature solely by the White population. They believed that wealth should have no bearing on a citizen’s voting power.
The mixed basis was a local version of the infamous national 3/5ths compromise that gave slaveholders additional representation in the U.S. House of Representatives. Virginia’s 1830 constitution borrowed the 3/5ths formula exactly: it took the total number of enslaved people, multiplied that number by 3/5ths, and then added the new number to the White population total when drawing legislative districts. To be clear, this formula was not designed to give enslaved people a voice in government—quite the opposite—it was designed to shore up Virginia’s racial regime by giving slaveholders a firewall in the state Senate. The 1851 constitution adopted a formula that used the White population to apportion the House of Delegates, and factored both White population and property into the Virginia Senate tallies.
Theoretically, this new “mixed” basis blunted the power of slaveholders. But because enslaved property represented the largest source of wealth in the state, the outcome was functionally the same as the 3/5ths compromise: rich slaveholders were able to pack the legislature. Their wealth was literally represented in the state Senate. And nearly all enslaved Virginians were held in Eastern Virginia. By 1860, there 472,000 African Americans enslaved in the east, compared to 18,000 people enslaved in Western Virginia. This vast discrepancy meant that Eastern Virginia’s wealthy slaveholding elite would always be able to control the legislature. This was no secret. Abel P. Upshur, an Eastern politician, explicitly argued that “Our [enslaved] property imperiously demands that kind of protection which flows from the possession of power.” Put simply, the Eastern elite believed that it was too dangerous to even allow the possibility that non-slaveholders could win control of the legislature. Westerners derisively referred to the Eastern elite as the Richmond Junto. They were particularly incensed because the Eastern White population outnumbered the Western, roughly 747,000 to 358,000. Under the White basis proposed by the west, the east would still command a majority, but it would be a fair majority earned by the will of citizens—not a majority empowered by enslaved wealth.
The unhappiness with Virginia’s anti-democratic governance led to calls to again rewrite the state’s constitution, just twenty years after the 1830 convention. Western reformers won some important concessions at the 1850-51 Virginia Constitutional Convention. This was a victory, but a limited one. The Senate remained artificially packed with representatives from slaveholding districts, blocking Westerners from ever hoping to control it. One Western delegate, William Smith of Greenbrier County, complained that the mixed basis violated “the great principle of political equality so essential to a representative republican government; that it is aristocratic in all its features.” In other words, Smith argued that the defining feature of American democracy was that there were no legal distinctions between citizens. Some citizens would be rich, and some would be poor, but if the law granted a class of citizens more voting power than others, than the promise of the American Revolution was unfulfilled. Eastern delegates also protected their slaveholding interests by creating an enormous tax shelter for enslaved property in the state’s tax code. Westerners managed to win the vote for poor White men, something that nearly every other state had implemented in the 1820s. They also prevailed in demanding that the electorate, rather than the state legislature, select the governor. Reformers saw the 1851 constitution as an embarrassingly overdue first step in democratizing Virginia.
How did Virginia become so sectionally divided? The state, known as the “The Old Dominion” was the oldest surviving English settlement in North America, tracing its origins to the founding of Jamestown in 1607. Powerful slaveholders had long since assembled massive tracts of Eastern land upon which they reaped wealth from enslaved labor. Even as Eastern Virginia began to diversify its economy in the 1850s, it remained a slave society to its core. No state enslaved more people. Across large swaths of Eastern Virginia, enslaved people outnumbered White people, sometimes representing more than 70% of a county’s population. But land was plentiful and cheap (for White men) across the Appalachian Mountains in the Western portion of the state—it was only around the time of the American Revolution that Anglo-American settlers forced out Native inhabitants. Moreover, the rugged ecology of Western Virginia could not support plantation agriculture, but it could support small farms, grazing, logging, as well as salt and iron mining. Slavery, by and large, was not profitable at scale in the west. This was of no conciliation to the African Americans who were enslaved there, but it remains a critical distinction for understanding antebellum Virginia’s politics of east vs. west.
By 1830, Western Virginia was no longer the domain of frontiersman and backcountry farmers. Particularly around the regional capital of Wheeling, Western Virginia was growing more populous, more educated, and richer. The Ohio River, the National Road, and later, the B&O Railroad were becoming vital avenues of trade for the booming United States, and they all ran through Western Virginia. Westerners were also more swept up in the Second Great Awakening than their Eastern neighbors, which stoked their desire for social reform. Revival preachers and temperance speakers drew large crowds. Westerners founded religious-affiliated colleges and seminaries. Frustrated by Eastern Virginia’s refusal to create a state-wide public school system, Wheeling instituted its own city-wide public schooling in 1849. In short, this new Western Virginian culture embraced a strain of White egalitarianism largely absent in Eastern Virginia’s staid planter society. Other states had regional cultures that influenced their politics, but only Virginia’s so cleanly correlated to the growing national conflict between slave societies and White free labor societies.
There was no public, organized abolitionist sentiment among White people in Western Virginia, although there was a local Underground Railroad maintained by a small number of free Black residents. It is critical to remember that Western reformers were only opposed to Eastern slaveholders’ grip on government, not to slavery or racial supremacy. In fact, many of the Western politicians who fought for White egalitarian reform owned enslaved servants. Their opposition to slaveholders was an opposition to an elite class who had created structural advantages for themselves in Virginia’s government. But the west was overwhelmingly White, and enslaved labor was not the primary work force as it was in the east. Western reformers wanted to make citizenship universal and equal among White men, not attack slavery where it existed.
Eastern and Western Virginia were in bitter disagreement on whether slavery should structure their shared society and politics. When the secession crisis began in 1860, Virginia held a convention to determine whether it should join the Confederate rebellion. For the third time in thirty years, Virginia’s political class gathered in Richmond to discuss momentous changes to the state’s government. Easterners sympathized with the slaveholders’ rebellion but hoped for reconciliation on pro-slavery terms. Unsurprisingly, Westerners tended to be strongly opposed to the Confederacy. They had not found Eastern Virginia’s slaveholding elite to be committed partners in building Virginia’s democracy. In the Confederacy, they feared a national government that would similarly espouse democratic rhetoric without embracing the full principle. At the secession convention, Westerners cited the tax code that set a cap on taxing enslaved property at the value of $300, even though enslaved people were routinely sold for $1,000 or more. Enslaved children (who also performed labor) were exempt from taxation entirely. Between the mixed basis that gave large slaveholders control of the Senate, and a tax code that sheltered enslaved wealth, Westerners argued that the Eastern elite had warped Virginia’s government for their own interests. They would not join the Confederacy, which they understood as a slaveholders’ oligarchy masquerading as a defender of White democracy.
In April of 1861, South Carolina attacked federal forces at Fort Sumter, crossing Lincoln’s red line during negotiations for reconciliation. The president announced that the federal government would take military action against the rebellion, forcing Eastern Virginians to take a side. They chose the Confederacy. In an 88-55 vote, split on east/west lines respectively, the convention recommended secession to Virginia’s voters. But rather than await the results of the legally mandated statewide referendum, Governor John Letcher placed the state militia under Confederate control. For Westerners, this was one final confirmation that Eastern Virginia’s elite could not be inconvenienced by democracy.
Westerners appealed for federal military protection, and once secured, they began renegotiating their place in the Union as West Virginia. The new state was not just a way to remain loyal to the United States. West Virginia was intended as a remedy to the anti-democratic rule of Eastern Virginia. The state’s founders had the chance to draft an original constitution; a chance to build a government from scratch. As Waitman T. Willey, one of the state’s most important founders, argued: “wealth and popular education, and material and moral progress and development, and political equality, and prosperity in every department of political economy, so long withheld from us, are all within our grasp.” The Westerners seized their chance.
West Virginia’s 1863 constitution differed radically from old Virginia’s structure. Its fundamental principle, established in a host of measures, was ensuring equality between citizens. Their first concern was establishing majority rule in the legislature. Article I of the West Virginia Constitution guaranteed that “Every citizen shall be entitled to equal representation in the Government, and in all apportionments of representation, equality of numbers” would be upheld. No longer would wealthy citizens get more voting power in the legislature than average citizens. Remembering the massive tax shelter that slaveholders had created in antebellum Virginia, they mandated that taxation “shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value.” The West Virginians also did away with Virginia’s county clerk system, which had placed nearly all local power in the hands of one magistrate. Instead, they established a New England-style township system that distributed power among several elected officials and a board of supervisors. This measure was designed to make local government more responsive and accountable to its community. They also established a secret ballot, rejecting Virginia’s system of viva voce voting in which a citizen had to proclaim his preferences. West Virginians felt that public voting had pressured poorer citizens to vote in lockstep with their wealthier neighbors, from whom they might earn wages, rent land, or draw loans. Finally, the West Virginia constitution established the South’s first state-wide public school system. Education had been an expensive privilege in old Virginia. West Virginia’s founders believed that every citizen had a right to education, but also that democracy could not function without educated voters.
Westerners were divided on whether the new state should abolish slavery outright. At first, they settled on a measure to ban importation of enslaved people into the state (as well as free Black people from moving in). This measure perfectly encapsulates their anti-slavery, anti-Black outlook. This proposal was unacceptable to Congress and Lincoln, who would have to approve a bill admitting West Virginia to the Union. Under a compromise proposed by Waitman T. Willey, the West Virginians adopted a gradual emancipation policy for their new state. Lincoln signed the statehood bill on December 31, 1862. The Willey Amendment was slower than abolitionists and enslaved West Virginians would have hoped for, but it was significant that this slaveholding region voluntarily and permanently renounced slavery. The 13th amendment that abolished slavery throughout the Union would not arrive until 1865, and it was far from a foregone conclusion in 1862. Lincoln applauded the new state as the first step in the South’s redemption. West Virginia entered the Union as the thirty-fifth state in the summer of 1863.
Concerns over a minority veto against the majority’s legislative ability predate even the constitution of the United States. In The Federalist Papers, Alexander Hamilton argued that “what at first sight may seem a remedy, is, in reality a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” Hamilton explained that the natural outcome of empowering a legislative minority would be to paralyze the government, thereby souring public discourse and weakening American democracy. His prediction has proved prescient.
Slaveholders have been the most powerful political minority in United States history. Unsurprisingly, they exploited any opportunity to safeguard their interest in slavery from the non-slaveholding majority. The 3/5ths compromise in the U.S. House of Representatives generated stiff Northern resentment against the slaveholding minority, which they deemed “the slave power conspiracy.” The Northern majority eventually grew so large that they won the House of Representatives anyway, so the pro-slavery minority shifted their attention to the Senate. As a result, the filibuster gained new importance as a tool for Southern senators. They also insisted that the rapidly growing nation admit new states only in pairs of free and slaveholding states—thus preserving the ratio of pro-slavery to free state senators. Admitting states in pairs also protected slaveholders’ power in the electoral college. Northern resentment of “the slave power conspiracy” helped spark the rise of the first major political party with an anti-slavery platform in American history, the Republican party. Their first successful candidate was Abraham Lincoln. The slaveholding minority could not abide by the nation’s democratically elected president and launched the Confederate rebellion.
The mixed basis in Virginia similarly fueled Western resentment at Eastern Virginia’s powerful slaveholding elite. The Eastern argument that wealth, primarily wealth in enslaved people, deserved legislative representation was attacked by Western politicians on both constitutional and emotional grounds. Constitutionally, they argued that it rejected the core principle of the American project: political equality between citizens. But more powerfully, they appealed to their constituents’ pride. At the 1830 Constitutional Convention, an Easterner named Benjamin Watkins Leigh had spoken in defense of the wealth requirement to vote (later eliminated in 1851). He argued that “the peasantry of the west” were not suited to participate “in affairs of State.” Leigh’s “peasantry of the west” became a broader rallying cry for Western politicians demanding political equality, and later, for West Virginia statehood. The quote inflamed Westerners, stoking their resentment that they were being disrespected by an elite minority. Leigh’s quote even hinted that Easterners’ defense of the mixed basis was not about protecting their pro-slavery interests, but rather just an unwillingness to share power with the second-class citizens of Western Virginia.
The long-simmering antipathy of this conflict ripped Virginia in two during Civil War. During the 1860 election, Westerners loathed Lincoln only slightly less than Eastern Virginians did. Both sections of Virginia complained that the Republican party was a bunch of dangerously misguided abolitionists itching to tell White Southerners how to live. Yet for all their grumbling about Republicans, the West Virginians never wavered in rejecting the Confederacy. They were alarmed by how quickly secessionists had cast aside the United States, but three decades of hollow democracy under Eastern Virginia’s elite had primed them to expect such disregard for the majority from slaveholders. Just as the national 3/5ths compromise helped fuel the destruction of the Union, the mixed basis helped fuel the destruction of old Virginia. As Hamilton predicted, the suppression of the majority provoked a reckoning where the rule of an elite minority was swept away.
The filibuster is a relic of elites’ concern about majority rule, akin to the mixed basis or the national 3/5ths compromise. Whereas the mixed basis used enslaved wealth to create an artificial majority, the filibuster simply empowers the minority to control the legislature. Although the strategy of delay has been employed since the first session of the U.S. Senate, the filibuster took shape in the 1830s—though its use remained somewhat rare. The word itself was borrowed from the infamous “filibusters” of that age: independent American military adventurers who wreaked havoc in Central America. Not surprisingly, as the antebellum conflict over slavery reached new heights in the 1850s, the use of the filibuster by pro-slavery senators increased. But the filibuster has a much more recent history of racial superiority. During the Civil Rights movement of the 1960s—within living memory—the filibuster was a favorite tactic of senators hoping to preserve the Jim Crow regime. Segregationists filibustered a variety of bills, from anti-lynching measures to voting rights legislation. It is telling that the most famous filibuster in history remains Senator Strom Thurmond’s twenty-four-hour attack on the Civil Rights Act of 1957.
But the filibuster has not only endured. It has grown stronger. It used to be considered an extreme measure deployed as a last resort. In the last twenty years, the use of the filibuster has skyrocketed. It has transformed into a de-facto requirement for a 60-vote supermajority on every bill the Senate considers. It also no longer requires the minority to actually delay the bill through debate, merely signal their intent to do so. Like the mixed basis, it is a polarizing tool for suppressing the majority. When a party has sustained a winning coalition across the multiple election cycles needed to capture the House, the Senate, and the executive office, it has earned the right to make laws. This winning coalition should not be stymied by a minority in the Senate. Gridlock may be acceptable, or even desirable, when the nation votes to split power between parties in the executive and legislative branches. But the filibuster creates gridlock where it should not exist. Additionally, the Senate’s construction inherently checks the majority by giving each state, regardless of population, equal representation. Tiny states like Vermont or Wyoming, each with less than 700,000 people, receive the same representation as Texas, with nearly 30 million people. Adding the filibuster atop the Senate’s structure is a recipe for perpetual paralysis of government.
Reforming the filibuster means granting both Republicans and Democrats more power to govern when they win. The sense that nothing gets done in Washington, even when a party is in control of both branches, breeds disillusionment and extremism, and dampens voter turnout. It is said that a system is perfectly designed for whatever outcome it produces. Our current system teaches voters that their vote does not matter. This is not a healthy feedback loop for American democracy. Filibuster reform may even increase bipartisanship. A 50-vote Senate majority would need to peel off 10 senators from the minority party to end a filibuster—that necessitates wooing a significant chunk of a rival party to break ranks. But without the filibuster, a slim Senate majority has a real incentive to pass legislation that two or three minority party senators can support (or vice versa). Senator Mitt Romney of Utah has proposed the Family Security Act which aims to reduce childhood poverty. It is the rare bill which enjoys support from across the aisle. But this ad-hoc bipartisan coalition of say, 51 or even 59 votes, could still be outvoted by a smaller group of senators via the filibuster. The filibuster forces every bill to break along strict partisan lines, strangling out temporary majorities which would otherwise coalesce in support of bills like the Family Security Act.
The rights of the political minority are of grave importance, but there must be a distinction between the minority’s civil rights and their “right” to influence legislation. The former is protected by the Bill of Rights and the Judiciary. The latter is not a right, but a privilege gained upon winning elections. The filibuster, as currently constructed, violates what West Virginia founder Waitman Willey described as “the great fundamental political right of the majority to rule.” His credibility on this point is enhanced by the fact that Western Virginians were themselves the minority coalition in antebellum Virginia. Their calls for majoritarian governance, if granted by Eastern Virginia, would have kept Eastern Virginia in power. It would have merely allowed Westerners the fair chance at one day winning control of the state Senate. The filibuster is a procedural custom of the Senate, not a constitutional requirement. If not eliminated entirely, it should at least be weakened so that the minority coalition cannot dictate legislative priorities. There are many potential reforms, but one straightforward proposal calls for a return to the talking filibuster, in which opponents to a bill must continuously expound against it—rather the current filibuster, in which 41 senators can simply kill a bill supported by 59. Eastern Virginia’s leaders pointed to their enslaved property as a reason why their Senate could not function on a majoritarian basis. The filibuster, particularly with its sordid history of racial supremacy, is likewise a flimsy reason for thwarting the majority in the United States Senate. West Virginia’s quest to improve their democracy offers lessons on how to heal our own.