FReeper Book Club: The Debate over the Constitution, Federalist #67

In this, the first of eleven essays on the topic, Hamilton etches the objections of the anti-Federalists to the Executive in acid. It is a literary tour de force and shows Hamilton at his argumentative best.

² The constitution of the Executive department of the proposed government claims next our attention.

³ There is hardly any part of the system which could have been attended with greater difficulty in the arrangement of it than this, and there is perhaps none which has been inveighed against with less candor or criticized with less judgment.

⁴ Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation.

⁵ Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States, not merely as the embryo, but as the full grown progeny of that detested parent.

⁶ To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction.

⁷ The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York have been magnified into more than royal prerogatives.

⁸ He has been decorated with attributes superior in dignity and splendor to those of a King of Great Britain.

⁹ He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train.

¹⁰ He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty.

¹¹ The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene.

¹² We have been taught to tremble at the terrific visages of murdering janissaries and to blush at the unveiled mysteries of a future seraglio.

¹³ Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object render it necessary to take an accurate view of its real nature and form in order as well to ascertain its true aspect and genuine appearance, as to unmask the [disingenuousness] and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated.

¹⁴ In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation or to treat with seriousness the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject.

¹⁵ They so far exceed the usual though unjustifiable licenses of party artifice that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation.

¹⁶ It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretense of a similitude between a King of Great Britain and a magistrate of the character marked out for that of the President of the United States.

¹⁷ It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition.

¹⁸ In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is expressly allotted to the executives of the individual states.

²⁰ This bold experiment upon the discernment of his countrymen has been hazarded by a writer who – whatever may be his real merit – has had no inconsiderable share in the applause of his party ¹, and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded.

²¹ Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing.

²² The second clause of the Second Section of the Second Article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of United States whose appointments are not in the Constitution otherwise provided for, and which shall be established by law.”

²³ Immediately after this clause follows another in these words: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

²⁴ It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced.

²⁵ A slight attention to the connection of the clauses and to the obvious meaning of the terms will satisfy us that the deduction is not even colorable.

²⁶ The first of these two clauses, it is clear, only provides a mode for appointing such officers, “whose appointments are not otherwise provided for in the Constitution, and which shall be established by law”; of course it cannot extend to the appointments of senators whose appointments are otherwise provided for in the Constitution ², and who are established by the Constitution, and will not require a future establishment by law.

²⁸ The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate for the following reasons.

²⁹ The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment in cases to which the general method was inadequate.

³⁰ The ordinary power of appointment is confined to the President and Senate jointly and can therefore only be exercised during the session of the Senate, but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President singly to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

³¹ If this clause is to be considered as supplementary to the one which precedes, the vacancies of which it speaks must be construed to relate to the “officers” described in the preceding one, and this, we have seen, excludes from its description the members of the Senate.

³² The time within which the power is to operate, “during the recess of the Senate,” and the duration of the appointments “to the end of the next session” of that body, conspire to elucidate the sense of the provision which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the state legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments and would have extended the duration in office of the temporary senators to the next session of the legislature of the state in whose representation the vacancies had happened instead of making it to expire at the end of the ensuing session of the national Senate.

³³ The circumstances of the body authorized to make the permanent appointments would of course have governed the modification of a power which related to the temporary appointments, and as the national Senate is the body whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President.

³⁴ The first and second clauses of the Third Section of the First Article not only obviate all possibility of doubt, but destroy the pretext of misconception.

³⁵ The former provides that “the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six years”, and the latter directs that, “if vacancies in that body should happen by resignation or otherwise, during the recess of the legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.”

³⁶ Here is an express power given in clear and unambiguous terms to the state executives to fill casual vacancies in the Senate by temporary appointments, which not only invalidates the supposition that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy.

³⁷ I have taken the pains to select this instance of misrepresentation and to place it in a clear and strong light as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the consideration of the people.

³⁸ Nor have I scrupled in so flagrant a case to allow myself a severity of animadversion little congenial with the general spirit of these papers.

³⁹ I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America.

Hamilton has caught one of his opponents on a specific point and is making the most of it to portray the critics of the proposed Constitution as unreasonable, hysterical and hyperbolic. In doing so, he risks committing precisely those sins and walks the thin line between mockery and outright calumny. But behind this most passionate piece there is the delicious undercurrent of the relationship between two men, and part of Hamilton’s extremity of expression is a result of the frustration he felt at the hands of a supremely astute political operator, New York Governor George Clinton, who had effectively neutralized Hamilton at the Constitutional Convention and now, under the pseudonym Cato, offered a vigorous and principled opposition to the adoption of what he considered a flawed plan.

Clinton would in time drop his opposition to the Constitution as a result of the advent of the Bill of Rights and embrace the new government, acting as Vice President for Thomas Jefferson after the latter’s own first Vice President, Aaron Burr, whose career had been advanced by Clinton appointing him Attorney General for the state of New York, fell into political decline as a consequence of his putting a fatal bullet into one Alexander Hamilton. Clinton was, as well, Vice President for that other “Publius”, James Madison. This was no hypercritical nonentity as one might suspect from Hamilton’s text, but a Founder in his own right. A very good measure of Hamilton’s seemingly intemperate language must be considered to stem from his own respect for his critic. For he has caught him in an error, and he intends to pound the point home in this, the first of a series of papers on the origin, nature and powers of the Presidency. What Cato stated in November 1787 was, to be sure, an exaggeration.

^{Cato 5-7} “…if you adopt this government, you will incline to an arbitrary and odious aristocracy or monarchy the that the president possessed of the power [that] differs but very immaterially from the establishment of monarchy in Great Britain...”

⁵ Calculating upon the aversion of the people to monarchy, they [the anti-Federalists] have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States, not merely as the embryo, but as the full grown progeny of that detested parent…

⁷ The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York have been magnified into more than royal prerogatives.

The reference to powers of the Governor of New York is a clear indication that Hamilton knew perfectly well who Cato was, and that, as that governor, the latter ought to have realized the falsity of the accusation that the President, under the new Constitution, could name senators on his own authority (19, 24). That is the issue on which Hamilton now focuses. First, there is some mockery that might be viewed as a slight exaggeration.

¹¹ The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene.

¹² We have been taught to tremble at the terrific visages of murdering janissaries and to blush at the unveiled mysteries of a future seraglio.

The reasonable reader might raise a hand in objection at this point. It is, after all, in no sense what Cato actually said, nor is it likely that the latter would have painted his close personal friend George Washington in that role. But it isn’t enough of an exaggeration to miss making the point.

¹⁸ In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is expressly allotted to the executives of the individual states.

It isn’t the case, objects Hamilton. Under Article II, Section 2, clause ii, this power is, with respect to the Senate, reserved for the state legislatures under the direction of their own chief executives. It is only with other appointees that the President possesses the power of interim appointment. He makes four points in this regard.

³⁸ Nor have I scrupled in so flagrant a case to allow myself a severity of animadversion little congenial with the general spirit of these papers.

The reader must find that statement debatable. This is, after all, one of the most strident and passionate essays in all of the Federalist Papers. The reader must cede Hamilton the point, but the game is still very much in play.

At 8 through 12, Hamilton takes the comparisons of the President to the King of England and reduces them to absurdity. Yet in the 20th Century, the Imperial Presidency came to pass. At 10, there is a reference to “mistresses”. Harding, FDR, Kennedy, Johnson and Clinton come to mind when one thinks of mistresses. At 12, the reference to “murdering janissaries” brings to mind Clinton’s excesses in turning federal jackbooted thugs into the agents of law enforcement. Even the Transportation Safety Agency fits this description of Executive excess. Hamilton’s acid comments have become the present. Was this inevitable, and why or why not? What can be done to change this? Is the Presidency, as defined by Hamilton, a clear and present danger to the Republic?

Hamilton was a monarchist who originally wanted a government monarchy. When that failed he became a nationalist advocating a strong central government. When that failed he reluctantly signed on with the majority knowing full well that the nationalists would immediately begin to chip away at the constitution in order to shift power away from the states ultimately getting close to what he wanted in the first place. Imagine that our politicians would say anything to deceive the people even then. As always; in politics, the end justifies the means.

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