FReeper Book Club: The Debate over the Constitution, Federalist #76

Hamilton tackles the powers of the President to appoint officials and the role of the Senate in advice and consent.

² The President is “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 the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

³ It has been observed in a former paper that “the true test of a good government is its aptitude and tendency to produce a good administration.”

⁴ If the justness of this observation be admitted, the mode of appointing the officers of the United States contained in the foregoing clauses must, when examined, be allowed to be entitled to particular commendation.

⁵ It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union, and it will not need proof that on this point must essentially depend the character of its administration.

⁶ It will be agreed on all hands that the power of appointment in ordinary cases ought to be modified in one of three ways.

⁷ It ought either to be vested in a single man, or in a select assembly of a moderate number, or in a single man with the concurrence of such an assembly.

⁸ The exercise of it by the people at large will be readily admitted to be impracticable, as waiving every other consideration, it would leave them little time to do anything else.

⁹ When, therefore, mention is made in the subsequent reasoning of an assembly or body of men, what is said must be understood to relate to a select body or assembly of the description already given.

¹⁰ The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue which will be urged as the chief objections to reposing the power in question in a body of men.

¹¹ Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers in relation to the appointment of the President will, I presume, agree to the position that there would always be great probability of having the place supplied by a man of abilities at least respectable.

¹² Premising this, I proceed to lay it down as a rule that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices than a body of men of equal or perhaps even of superior discernment.

¹³ The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation.

¹⁴ He will on this account feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.

¹⁵ He will have fewer personal attachments to gratify than a body of men who may each be supposed to have an equal number, and will be so much the less liable to be misled by the sentiments of friendship and of affection.

¹⁶ A single, well directed man by a single understanding cannot be distracted and warped by that diversity of views, feelings and interests which frequently distract and warp the resolutions of a collective body.

¹⁷ There is nothing so apt to agitate the passions of mankind as personal considerations whether they relate to ourselves or to others who are to be the objects of our choice or preference.

¹⁸ Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.

¹⁹ The choice which may at any time happen to be made under such circumstances will of course be the result either of a victory gained by one party over the other or of a compromise between the parties.

²⁰ In either case, the intrinsic merit of the candidate will be too often out of sight.

²¹ In the first, the qualifications best adapted to uniting the suffrages of the party will be more considered than those which fit the person for the station.

²² In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.”

²⁴ And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

²⁵ The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made in this respect by the Convention.

²⁶ They contend that the President ought solely to have been authorized to make the appointments under the federal government.

²⁷ But it is easy to show that every advantage to be expected from such an arrangement would in substance be derived from the power of nomination, which is proposed to be conferred upon him, while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided.

²⁸ In the act of nomination, his judgment alone would be exercised, and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment.

²⁹ There can in this view be no difference between nominating and appointing.

³⁰ The same motives which would influence a proper discharge of his duty in one case would exist in the other.

³¹ And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

³³ I grant it might, yet this could only be to make place for another nomination by himself.

³⁴ The person ultimately appointed must be the object of his preference, though perhaps not in the first degree.

³⁵ It is also not very probable that his nomination would often be overruled.

³⁶ The Senate could not be tempted by the preference they might feel to another to reject the one proposed because they could not assure themselves that the person they might wish would be brought forward by a second or by any subsequent nomination.

³⁷ They could not even be certain that a future nomination would present a candidate in any degree more acceptable to them, and as their dissent might cast a kind of stigma upon the individual rejected and might have the appearance of a reflection upon the judgment of the Chief Magistrate, it is not likely that their sanction would often be refused where there were not special and strong reasons for the refusal.

³⁹ I answer that the necessity of their concurrence would have a powerful, though in general, a silent operation.

⁴⁰ It would be an excellent check upon a spirit of favoritism in the President and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity.

⁴¹ In addition to this, it would be an efficacious source of stability in the administration.

⁴² It will readily be comprehended that a man who had himself the sole disposition of offices would be governed much more by his private inclinations and interests than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the Legislature.

⁴³ The possibility of rejection would be a strong motive to care in proposing.

⁴⁴ The danger to his own reputation, and in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism or an unbecoming pursuit of popularity to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other.

⁴⁵ He would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations candidates who had no other merit than that of coming from the same state to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

⁴⁶ To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views.

⁴⁷ This supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude.

⁴⁸ The institution of delegated power implies that there is a portion of virtue and honor among mankind which may be a reasonable foundation of confidence, and experience justifies the theory.

⁴⁹ It has been found to exist in the most corrupt periods of the most corrupt governments.

⁵⁰ The venality of the British House of Commons has been long a topic of accusation against that body in the country to which they belong as well as in this, and it cannot be doubted that the charge is to a considerable extent well founded.

⁵¹ But it is as little to be doubted that there is always a large proportion of the body which consists of independent and public spirited men who have an influential weight in the councils of the nation.

⁵² Hence it is – the present reign not excepted – that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures.

⁵³ Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition that he could in general purchase the integrity of the whole body would be forced and improbable.

⁵⁴ A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its cooperation in the business of appointments will be a considerable and salutary restraint upon the conduct of that Magistrate.

⁵⁶ The Constitution has provided some important guards against the danger of Executive influence upon the Legislative body: it declares that “No senator or representative shall during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.”

The reader might be forgiven a bit of impatience at this slow, methodical trudge through the Constitution, a document that is, after all, notable for its concision. The purpose of the Federalist Papers, however, is not simply to detail each of the features of that document, but to explore the thought processes behind it, whether or not that feature is particularly controversial.

But to see the thought process is to see the thinker, and in this essay the reader gets a glimpse of the Hamilton who has been vilified as an autocrat, a proponent of one-man rule, of a presidency-for-life, of a Presidency and Senate whose members are not directly elected by the people. This autocratic tendency, just as the provisions of the Constitution themselves, might stand alone, but it is far more explicable when illuminated by the thought process behind it. Where more likely for this to surface than discussion of the Executive, especially where that relates directly to the very membership of the other branches?

The topic under consideration is Article II, Section 2, paragraph 2, and only the second half of that.

² The President is “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 the United States whose appointments are not otherwise provided for in the Constitution. But the Congress may by law vest the appointment of such inferior officers as they think proper, in the President alone, or in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies which may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

One cannot imagine an arrangement this complex working, at least in the context of the adversarial suppositions behind the rest of the Constitution. The President nominates certain officials. The Senate approves or disapproves unless Congress passes legislation to allow the President to appoint these individuals outright, or places the matter into the hands of one of the other branches, in this case the Judicial. Hamilton has some explaining to do as to why this unwieldy arrangement is expected to function and the reader some contemplation of why it actually has.

³ It has been observed in a former paper that “the true test of a good government is its aptitude and tendency to produce a good administration.”

That involves the selection of people, and the purpose of the system proposed is to see that they are selected on the basis of qualifications that pertain to the good of the country rather than to the advancement of personal or party advantage. Hamilton describes the three feasible alternatives: vesting this power in a single man, in an assembly, or in a single man with the concurrence of an assembly (7). He reasons that both of the first two alternatives offer the probability of a disadvantageous appointment, and the third, the hope not that those tendencies are to be eliminated, but that they will offset one another. Direct appointment by the voters Hamilton dismisses as infeasible with a brief flash of humor.

⁸ ...waiving every other consideration, it would leave them little time to do anything else.

This is not contempt, as might be expected from Hamilton the accused autocrat. On the contrary, the people are, from sheer inertia, less susceptible to faction than Congress.

Nor can a single man. Here the reader sees Hamilton the optimist in an admission that however he feels about his fellow Framers and their opponents, he recognizes that “there would always be great probability of having the place [the Presidency] supplied by a man of abilities at least respectable.” (11) He is thinking of Washington and hoping for the best from the others.

The disadvantages of faction, in Hamilton’s view, more than make up for superior discernment. Nor is this even yet the party politics that the modern American reader has come to accept as a defining feature of the government. Here is one basis for Hamilton’s preference for autocracy in government. But clearly he does anticipate party politics in the immediate future, and his description of the process rings an all too familiar note. For within an assembly, an appointment may either occur under the circumstances of “victory gained by one party over the other or of a compromise between the parties” (19).

²¹ In the first [case], the qualifications best adapted to uniting the suffrages of the party will be more considered than those which fit the person for the station.

²² In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.”

Is this, then, an argument for a President to hold the power of appointment solely in his hands? It is not. There are, to be sure, advantages to the arrangement.

²⁷ But it is easy to show that every advantage to be expected from such an arrangement would in substance be derived from the power of nomination, which is proposed to be conferred upon him, while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided.

Hence the system of nomination and approval. Hamilton’s argument is that faction may be avoided in the placement of nomination in a single person’s hands, and that personal interest may be avoided by placing approval in the hands of an assembly. The power is shared: a nomination may be rejected, but abuse of this is guarded against by the next nomination for the office in question coming from the same source. Abuse of the nomination is guarded against by the possibility of rejection (43).

It is, Hamilton admits, a system dependent on the broad good faith of all the parties concerned. Here again he shows his essential optimism in the peopling of the government.

⁴⁷ This supposition of universal venality in human nature is little less an error in political reasoning than the supposition of universal rectitude.

A “portion of virtue and honor among mankind” is justified by experience (48), even in the most corrupt governments (49), such as the British House of Commons (50), whose members may be forgiven for regarding that as a very backhanded compliment indeed. Moreover, the system will work because, essentially, they're in it together.

⁵⁴ A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate... [and] that the necessity of its cooperation in the business of appointments will be a considerable and salutary restraint upon the conduct of that Magistrate.

Why not involve the House, then? Hamilton has dealt with that objection in the previous paper: it is too large, too ephemeral and too difficult to assemble. But it is also the closest to the people. The skeptic might point out that the autocrat Hamilton considered neither of the bodies who were involved to be directly elected. But in any event it is clear that the fear of faction is one determinative factor in Hamilton’s predilection for the placement of power into a single pair of hands, and it is equally clear that protection against a President so empowered must reside in his regard for his own personal reputation over that of party (44). The notion of a President so committed to party, or beholden to party, for his presence in office that he is willing to sacrifice personal reputation for the benefit of that party does not appear to be something Hamilton is willing to consider.

Nor is Hamilton an unguarded optimist with regard to the virtues of men in office. He has, after all, safeguarded the system by opposing ego to venality. It takes no overt cynic to suspect that the vices as well as the virtues of the men in office help explain why the system has worked so well for so long.

The purpose of the Federalist Papers, however, is not simply to detail each of the features of that document, but to explore the thought processes behind it, whether or not that feature is particularly controversial

Judging from the volume of them, I'd say the purpose of the Fed Papers was to shout down opposition and baffle New Yorkers were prime-grade bullcrap. Hamilton and Madison were perfect for the job.

I think that's a bit of an overstatement, actually. While there are certainly instances of invective (mostly in Hamilton) there is real content here, not just noise, and what has surprised me in the course of analyzing all this is how much thought went into what I regarded before as relatively insignificant details. The reasoning behind a majority of total number of senators approving a treaty and a majority of members present, to cite one example.

Nor was this a one-voiced show. The anti-Federalists made enough good points to force the Bill of Rights into the ratification process, a truly fundamental alteration of the plan Madison, Hamilton, and Jay are trying to sell to a skeptical public. We have a couple of Patrick Henry speeches coming up to illustrate that point. Long (sigh!) speeches... ;-)

The reasoning behind a majority of total number of senators approving a treaty and a majority of members present, to cite one example.

Deck chairs on the titanic.

It was not until 1987 that historian Herbert Storing at the University of Chicago succeeded in collecting all the Anti-Federalist essays into seven volumes packed with footnotes. Then over the past 24 years, even more anti-Federalist essays were located at various arcane sources.

For our effort, we are only using the anti-Federalist essays identfied by Ralph Ketcham as being a critical part of the dialogue over ratification. In the next two months as we finish our project, we will be covering Brutus #16, two huge speeches by Patrick Henry delivered at the Virginia Ratifying Convention, and notes on four speeches delivered by Melancton Smith at the New York Ratifying Convention. We give the anti-Federalists their due.

“We have a couple of Patrick Henry speeches coming up to illustrate that point. Long (sigh!) speeches... ;-) “

Thanks goodness.

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