Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
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.
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. 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. 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. 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. 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. 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 prevalency of a factious spirit in either of those branches. 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.
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. 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. 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? [1]
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. 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. To an objection so little precise in itself, it is not easy to find a very precise answer. 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? 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?
If we take this course, it will lead to a more intelligible, if not to a more certain result. 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. The expediency 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. 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. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. 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.
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. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? 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. The constant possibility of the thing must be a fruitful source of influence to that body. 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. 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.
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. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. 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. 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. 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. 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.
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.
It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. 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. 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. 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.
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. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. 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?
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.
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. 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. 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. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. 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? 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.
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. We may thus far count upon their pride, if not upon their virtue. 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.
PUBLIUS.
1. 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.
Federalist No. 66
Federalist Paper 66, Federalist Papers, The Original Documents 1. The Federalist Papers, Federalist No. 66Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.
Author: Alexander Hamilton
To the People of the State of New York:
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.
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. 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. 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. 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. 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. 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 prevalency of a factious spirit in either of those branches. 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.
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. 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. 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? [1]
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. 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. To an objection so little precise in itself, it is not easy to find a very precise answer. 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? 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?
If we take this course, it will lead to a more intelligible, if not to a more certain result. 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. The expediency 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. 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. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. 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.
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. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? 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. The constant possibility of the thing must be a fruitful source of influence to that body. 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. 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.
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. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. 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. 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. 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. 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.
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.
It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. 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. 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. 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.
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. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. 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?
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.
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. 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. 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. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. 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? 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.
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. We may thus far count upon their pride, if not upon their virtue. 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.
PUBLIUS.
1. 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.
Federalist No. 66 – Cathy Gillespie
Federalist Paper 66, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Cathy Gillespie 1. The Federalist Papers, 15. Essays by Cathy Gillespie, Federalist No. 66, Federalist No. 66In Federalist No. 66, Hamilton continues his defense of the Senate’s role as court of trial in the impeachment process. The anti-federalists believed this role concentrated too much power in the hands of the Senate. As we work our way through the Federalist Papers, it is fascinating to have the benefit of hindsight to explore how the structure built by the framers has played out.
In my personal journey through our 90 in 90, History Holds the Key to the Future, I have learned just how much I did not know!!
I have discovered the Senate.Gov website is a marvelous resource and repository of history. I consulted it for a list of Senate impeachment trials, and found this link:
http://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm#4
The above link contains an illuminating narrative of the Senate’s role in impeachment trials, and the major controversies that have arisen over the years, including the definition of “high crimes and misdemeanors.”
In 1960 U.S. Rep Gerald Ford famously stated, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
The link also contains the below listing of Senate Impeachment Trials. Since 1789, the Senate has conducted 19 impeachment proceedings, with an even split of 7 acquittals and 7 convictions. Three cases were dismissed.
Complete List of Senate Impeachment Trials
To date, the Senate has conducted formal impeachment proceedings 19 times, resulting in 7 acquittals, 7 convictions, and 3 dismissals.
William Blount, Senator
Date of Final Senate Action: January 11, 1799
Result: expelled, charges dismissed
_______________________________
John Pickering, Judge
Date of Final Senate Action: March 12, 1804
Result: guilty, removed from office
_______________________________
Samuel Chase, Justice
Date of Final Senate Action: March 1, 1805
Result: not guilty
_______________________________
James H. Peck, Judge
Date of Final Senate Action: January 31, 1831
Result: not guilty
_______________________________
West H. Humphreys, Judge
Date of Final Senate Action: June 26, 1862
Result: guilty
_______________________________
Andrew Johnson, President
Date of Final Senate Action: May 16/26, 1868
Result: not guilty
_______________________________
Mark H. Delahay, Judge
Date of Final Senate Action: no action
Result: resigned
_______________________________
William Belknap, Secretary of War
Date of Final Senate Action: August 1, 1876
Result: not guilty
_______________________________
Charles Swayne, Judge
Date of Final Senate Action: February 27, 1905
Result: not guilty
_______________________________
Robert Archbald, Judge
Date of Final Senate Action: January 13, 1913
Result: guilty, removed
_______________________________
George W. English, Judge
Date of Final Senate Action: December 13, 1926
Result: resigned, charges dismissed
_______________________________
Harold Louderback, Judge
Date of Final Senate Action: May 24, 1933
Result: not guilty
_______________________________
Halsted Ritter, Judge
Date of Final Senate Action: April 17, 1936
Result: guilty, removed from office
_______________________________
Harry E. Claiborne, Judge
Date of Final Senate Action: October 9, 1986
Result: guilty, removed from office
_______________________________
Alcee Hastings, Judge
Date of Final Senate Action: October 20, 1989
Result: guilty, removed from office
_______________________________
Walter Nixon, Judge
Date of Final Senate Action: November 3, 1989
Result: guilty, removed from office
_______________________________
William J. Clinton, President
Date of Final Senate Action: February 12, 1999
Result: not guilty
_______________________________
Samuel B. Kent, Judge
Date of Final Senate Action: July 22, 2009
Result: resigned, case dismissed
_______________________________
G. Thomas Porteous, Jr., Judge
Date of Final Senate Action: case pending
I hope you all are learning as much as I am about the history of our country, the founding principles upon which our country is based and how these principles were applied by the framers in creating the structure of our Republic, through the United States Constitution!!
Thank you for joining us!!
Good night and God Bless,
Cathy Gillespie
Wednesday, July 28th, 2010
Federalist No. 66 – Janine Turner
Federalist Paper 66, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Janine Turner 1. The Federalist Papers, 2. The Constitution, 3. The Amendments, 14. Essays by Janine Turner, Constitutional Amendment XVII, Constitutional Amendment XVII, Federalist No. 66, Federalist No. 66Howdy from Texas.
To those of us who worry that the basic structure of checks and balances within our government have been tampered with, such as with the 17th amendment and may continue to be tampered with in the future, such as with the rumblings of the removal of the electoral college by circumventing the Constitution and doing it through the State Legislatures, I quote Abigail Adams, my favorite foremother in a letter that she wrote to her young son:
“These are the times in which a genius would wish to live. It is not in the still calm of life, or in the repose of a pacific station, that great characters are formed. The habits of a vigorous mind are formed in contending with difficulties. Great necessities call out great virtues. When a mind is raised, and animated by the scenes that engage the heart, then those qualities which would otherwise remain dormant, wake into life and form the character of the hero and the statesman.”
Inspire your children with this beautifully insightful passage about life, bravery, duty and patriotism. Share it with your friends and family.
I thank you for joining us. I thank Horace Cooper for his constant dedication and I thank Cathy Gillespie for being the best friend a person could ever dream of having and for being absolutely mesmerizingly devoted to Constituting America.
God Bless,
Janine Turner
Wednesday, July 28th, 2010
Federalist No. 66 – Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered, From the New York Packet (Hamilton)
Federalist Paper 66, Federalist Paper Forum 2010 Essay Project, Federalist Paper Forum 2010 Essays by Guest Constitutional Scholars, Horace Cooper 1. The Federalist Papers, 13. Guest Constitutional Scholar Essayists, Federalist No. 66, Horace CooperIn Federalist #66 Alexander Hamilton attempts to respond to objections about the new United States Senate acting as the Court in the event of impeachments of judges or executive branch officials.
The first complaint raised by critics of this set up was 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.” It is noteworthy that Hamilton eagerly accepts the notion that liberty is protected by dividing duties among several branches of government. In the case of the Senate acting as the impeachment court Hamilton suggests that this “partial intermixture of those departments for special purposes” is acceptable because of the benefits which accrue and because the Constitution doesn’t really mix these as much as critics charge.
Hamilton notes that the House and the Senate play unique roles that are essential — the House acts as the accuser and the Senate acts as the jury or judge. The House requires a simple majority for the accusation, but the Senate requires a concurrence of two-thirds ensuring that a too hasty or contrived accusation isn’t carried out. He next points out that in the State of New York the Senate is the impeachment court and the highest judicial authority for civil and criminal cases. If having the United States play a role as jurors in impeachment is unwarranted, how much more so is it true with the Constitution of New York?
The second issue raised is that having the Senate act as the Court “contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic.” Not only does the Senate in conjunction with the Executive have treaty-making power, critics charged that the impeachment role potentially made them the most influential division of government. Hamilton says that there is no objective measure of which part of the new government was the most influential. Instead Hamilton argues that we should recognize that the House of Representatives being the popularly elected branch is most likely to be the most powerful and influential branch of government. Hamilton explains that the House initiates impeachment (a strong power), and it is noteworthy that all revenue bills must originate in the House. The House also adjudicates disputes over the election of the Presidency. Weighed together the unique powers of the House demonstrate that there isn’t too much power being concentrated by the United States Senate.
The next objection was that the Senate would be ineffective in this role because “they would be too indulgent judges of the conduct of men, in whose official creation they had participated.” Here Hamilton explains that the criticism leveled against the Senate goes against the example in most of the state governments and almost all national governments that Hamilton has ever seen. All of them presume some role on the part of the parties that appointed individuals in policing those individuals’ misdeeds. Hamilton says that one byproduct of this dual function is that Senators may be more scrupulous about who they vote to confirm since they will ultimately be called to task in the removal of those individuals if they act corruptly. Additionally since they only vote to confirm and in fact the Constitution contemplates no role in the actual selection of the individuals ultimately nominated there is little reason to think that Senators would take casually their responsibilities to confirm or convict in an impeachment trial public officials.
The final complaint was that the Senate can’t objectively carryout this responsibility because “union with the Executive in the power of making treaties” may be the occasion for actual collaboration in misdeeds and corruption. Here Hamilton is responding to charges similar to those in objection number three. Instead of alleging lenience by the Senate, this objection is that perhaps the Senators would somehow be complicit in the misdeeds of the individual being impeached and therefore would fail to carryout their duties with regard to the impeached individual.
Hamilton argues that this complaint really is a complaint against the integrity of the President and the Senate generally. Whether they had impeachment power or not, their propensity for misdeeds would be distinct and separate from the issue of abusing the impeachment court process. There is no reason to think that their unique role as Senators would make them more likely to support corruption than would being a Member of the House of Representatives Hamilton explains. Nevertheless, Hamilton recognizes that even if individual members of the Senate were corrupt, the fact that they must all act in concert minimizes the likelihood that some corruption on the part of an executive branch official would be collaborated and harbored by two-thirds of Senators.
Finally, Hamilton closes with this prescient observation. Perhaps the greatest assurance that the Senators will carryout their responsibilities in impeachment impartially is that it would serve to “divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.” In other words, rather than suffer in the public’s eye, Senators will readily impeach corrupt officials.
Wednesday, July 28th, 2010
Horace Cooper is a writer and is the director of the Center for Law and Regulation at the Institute for Liberty