FReeper Book Club: The Debate over the Constitution, Federalist #66

² A review of the principal objections that have appeared against the proposed court for the trial of impeachments will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter.

³ The first of these objections is that the provision in question confounds legislative and judiciary authorities in the same body in violation of that important and well established maxim which requires a separation between the different departments of power.

⁴ The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them in the main distinct and unconnected.

⁵ This partial intermixture is even in some cases not only proper but necessary to the mutual defense of the several members of the government against each other.

⁶ An absolute or qualified negative in the Executive upon the acts of the Legislative body is admitted by the ablest adepts in political science to be an indispensable barrier against the encroachments of the latter upon the former.

⁷ And it may perhaps with no less reason be contended that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the Executive.

⁸ The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges, and guards against the danger of persecution from the prevalence of a factious spirit in either of those branches.

⁹ As the concurrence of two-thirds of the Senate will be requisite to a condemnation, the security to innocence from this additional circumstance will be as complete as itself can desire.

¹⁰ It is curious to observe with what vehemence this part of the plan is assailed on the principle here taken notice of by men who profess to admire without exception the constitution of this state, while that constitution makes the Senate, together with the Chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the state in all causes, civil and criminal.

¹¹ The proportion, in point of numbers, of the Chancellor and judges to the senators is so inconsiderable that the judiciary authority of New York in the last resort may with truth be said to reside in its Senate.

¹² If the plan of the Convention be in this respect chargeable with a departure from the celebrated maxim which has been so often mentioned and seems to be so little understood, how much more culpable must be the constitution of New York?*

¹³ A second objection to the Senate as a court of impeachments is that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic.

¹⁴ The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence.

¹⁵ To an objection so little precise in itself, it is not easy to find a very precise answer.

¹⁶ Where is the measure or criterion to which we can appeal for determining what will give the Senate too much, too little, or barely the proper degree of influence?

¹⁷ Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself and to decide on general principles where it may be deposited with most advantage and least inconvenience?

¹⁸ If we take this course, it will lead to a more intelligible, if not to a more certain, result.

¹⁹ The disposition of the power of making treaties, which has obtained in the plan of the Convention, will then, if I mistake not, appear to be fully justified by the considerations stated in a former number and by others which will occur under the next head of our inquiries.

²⁰ The expedience of the junction of the Senate with the Executive in the power of appointing to offices will, I trust, be placed in a light not less satisfactory in the disquisitions under the same head.

²¹ And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments than that which has been chosen.

²² If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasoning.

²³ But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators.

²⁴ It was by them shown as well on the credit of historical examples as from the reason of the thing that the most popular branch of every government, partaking of the republican genius by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the government.

²⁵ But independent of this most active and operative principle to secure the equilibrium of the national House of Representatives, the plan of the Convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate.

²⁶ The exclusive privilege of originating money bills will belong to the House of Representatives.

²⁷ The same House will possess the sole right of instituting impeachments; is not this a complete counterbalance to that of determining them?

²⁸ The same House will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors, a case which it cannot be doubted will sometimes, if not frequently, happen.

²⁹ The constant possibility of the thing must be a fruitful source of influence to that body.

³⁰ The more it is contemplated, the more important will appear this ultimate, though contingent, power of deciding the competitions of the most illustrious citizens of the Union for the first office in it.

³¹ It would not perhaps be rash to predict that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate.

³² A third objection to the Senate as a court of impeachments is drawn from the agency they are to have in the appointments to office.

³³ It is imagined that they would be too indulgent judges of the conduct of men in whose official creation they had participated.

³⁴ The principle of this objection would condemn a practice which is to be seen in all the state governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure dependent on the pleasure of those who appoint them.

³⁵ With equal plausibility might it be alleged in this case that the favoritism of the latter would always be an asylum for the misbehavior of the former.

³⁶ But that practice, in contradiction to this principle, proceeds upon the presumption that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who by their conduct shall have proved themselves unworthy of the confidence reposed in them.

³⁷ Though facts may not always correspond with this presumption, yet if it be in the main just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias towards the objects of that choice strong enough to blind them to the evidences of guilt so extraordinary as to have induced the representatives of the nation to become its accusers.

³⁸ If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments.

³⁹ It will be the office of the President to nominate and, with the advice and consent of the Senate, to appoint.

⁴⁰ There will, of course, be no exertion of choice on the part of the Senate.

⁴¹ They may defeat one choice of the Executive and oblige him to make another, but they cannot themselves choose, they can only ratify or reject the choice of the President.

⁴² They might even entertain a preference to some other person at the very moment they were assenting to the one proposed because there might be no positive ground of opposition to him, and they could not be sure if they withheld their assent that the subsequent nomination would fall upon their own favorite or upon any other person in their estimation more meritorious than the one rejected.

⁴³ Thus it could hardly happen that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire and the proofs of the want of it destroy.

⁴⁴ A fourth objection to the Senate in the capacity of a court of impeachments is derived from its union with the Executive in the power of making treaties.

⁴⁵ This, it has been said, would constitute the senators their own judges in every case of a corrupt or perfidious execution of that trust.

⁴⁶ After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty?

⁴⁷ This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan, and yet I am deceived if it does not rest upon an erroneous foundation.

⁴⁸ The security essentially intended by the Constitution against corruption and treachery in the formation of treaties is to be sought for in the numbers and characters of those who are to make them.

⁴⁹ The joint agency of the Chief Magistrate of the Union and of two-thirds of the members of a body selected by the collective wisdom of the legislatures of the several states is designed to be the pledge for the fidelity of the national councils in this particular.

⁵⁰ The Convention might with propriety have meditated the punishment of the Executive for a deviation from the instructions of the Senate or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate who should have prostituted their influence in that body as the mercenary instruments of foreign corruption, but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two-thirds of the Senate consenting to an improper treaty than of a majority of that or of the other branch of the National Legislature consenting to a pernicious or unconstitutional law, a principle which, I believe, has never been admitted into any government.

⁵¹ How in fact could a majority in the House of Representatives impeach themselves?

^{52 Not better, it is evident, than two-thirds of the Senate might try themselves.}

⁵³ And yet what reason is there that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two-thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power?

⁵⁴ The truth is that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body that the members of it should be exempt from punishment for acts done in a collective capacity, and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.

⁵⁵ So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority.

⁵⁷ And so far even as might concern the corruption of leading members by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.

[*] In that of New Jersey also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania and South Carolina, one branch of the legislature is the court for the trial of impeachments.

Hamilton finishes off the last of the objections to the structure and function of the Senate, and in doing so provides a segue into the consideration of the powers of the Executive. Many of these issues have already been addressed in another context, but here Hamilton reminds the reader that the Constitution is, after all, a body of compromises between theory and application, between old and new, between the government as presented to the Constitutional Convention and the one that would emerge from it.

Here, once again, is the plaint of the practical politician against the demands of theory: yes, the principles of separation of powers and checks and balances are to be expressed in the new government, but these are, applied in purity, mutually exclusive. One cannot, in practice, both isolate the functions of government and make them interdependent. Applied together, these two principles provide a deliberate dynamic tension within government that will, Hamilton hopes, serve to protect the government against itself.

⁵ This partial intermixture is even in some cases not only proper but necessary to the mutual defense of the several members of the government against each other.

It does not guard against the prevalence of a factious spirit in both branches simultaneously, which is what the contemporary political observer encounters when party politics come into play. Nevertheless, it has a valid precedent within the government of the state of New York (11).

Hamilton judges he has adequately dealt with the issue of the power of making treaties, or more accurately, the power of ratifying them within the Senate (19). What then of the balance between the two divisions of the Legislative branch? The House, reminds Hamilton, retains the power of the purse (26) and the power of originating impeachment; therefore, does this not serve to counterbalance the power to judge the latter (27)? Moreover, does not the additional power for the House to “umpire in all elections of the President” (28) in times where such elections do not enjoy an immediate resolution within the Electoral College serve to offset the “peculiar attributes of the Senate”? (31)

To the objection that the duty to judge through the impeachment procedure the very officials the Senate has served to confirm in office, Hamilton replies quite simply in the affirmative: that in fact, it is not only well within the rights of that body to disapprove of those whom they have formerly approved, but that it is a formal and precedented function of government, both within the states and “all governments with which we are acquainted” (34).

This leads back to the issue of senatorial approval for those officials the Executive has nominated. Is this too much power? Hamilton answers that it is not, at least not directly; it is, in fact, power by negation. The Senate cannot name, it can only disapprove (37, 39).

Lastly, Hamilton treats with the objection that a Senate empowered both to ratify treaties and charged with the punishment of those involved with treaties written against the interests of the United States has, in effect, an inherent conflict of interest (45). In essence, Hamilton admits that it might, the safeguard against being the integrity of the members of both Executive and Senate who are involved (50). At that point, the government is left with the equal unlikelihood of the House impeaching itself over an “unjust and tyrannical act of legislation” and the Senate condemning itself for a “ruinous treaty” (51, 52). It is a matter of trust, at this point, recourse against which must devolve to the people to effect. How much trust this truly involves in both cases is admitted by Hamilton in a particularly revelatory statement.

Here one might excuse the anti-Federalists from considering their fears in the matter fully justified. This is, in fact, no better guarantee of fidelity than “trust them – elect the right people and it won’t be a problem.” It is not an answer admitting of any more comfort than the assurance that a large number of elected representatives are unlikely all to be corrupt simultaneously, cold comfort for the cynic indeed, and as well for the observer of contemporary politics. The darkness of this recourse is not helped by Hamilton’s final point: that the safeguard against the Executive contravening the views of the Senate is best to be found in the latter body’s own jealousy of its prerogatives.

Even worse, the notion that a body so corrupted might find itself willing to toss its own offending members to the wolves of public opprobrium.

That is certainly an admission of the workings of practical politics so blunt as to be breathtaking, but hardly of any comfort to the anti-Federalist critic. At this point the integrity of the system depends on the voter, one additional reminder that a virtuous government is a product of, and dependent upon, a virtuous people. Hamilton has reached the limit of the system to guard itself against corruption and is, at least, honest enough to admit it.

The second objection is that it permits an undue accumulation of power in the Senate, making it too aristocratic. This has been changed by the 17th Amendment, so the argument no longer resonates. Is there anything that would make that argument relevant? If so, what?

I will address this immediately by claiming that the Senate has become MORE of an aristocracy, since the individual powers of the States have been replaced with a party system that increases the preservation of powers within a select group of politicians.

They are now handling far more power and deliver greater riches to those whom they bless with their strokes of the pen. Those outside of their clique must suffer the consequences of the minority; they must eat cake. That's an aristocracy.

But, let's not forget the diminished aspects of JUSTICE that surface when the clown show in the Senate meets for trials and hearings. We all know that common citizens would go to jail for some of the acts we've seen by members of congress. But the Senators survive term after term after term with incredible pay, benefits and treatment - - while their spending drives this nation closer to bankruptcy.

That's an aristocracy.

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