March 19: Federalist 62 & 63: Senate Powers For Soundness, Order, Stability Of The Congress – Guest Essayist: Joseph M. Knippenberg

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In Federalist #62 and #63, Publius (the pseudonym adopted by authors Alexander Hamilton, James Madison, and John Jay) makes the case for and deals with objections to the Senate as the second of Congress’ two legislative chambers.  Then, as now, our author (in this case, scholars presume, James Madison) has to address a presumption in favor of straightforward and simple democracy, which would mandate a popularly elected legislature, offering proportional representation, whose members serve terms short enough to remind them of their dependence upon the voters.  While those characteristics adequately describe the House of Representatives, Senators were then to be elected indirectly, by state legislatures, for relatively long (six year) terms.  What’s more, each state was entitled to two Senators, so that the largest states had no more influence in that chamber than the smallest states.

Why should our democratic republic have within it a legislative body whose constitution seems to depart so far from democratic principles?  In making his case, Madison first concedes that the character of the Senate is the result,

“not of theory, but ‘of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.’”

A simply consolidated national government that reflected the popular weight of the larger states would not have gotten the consent of the smaller states.  Without the Senate, which treats all states—large and small—equally, there would be no new Constitution, and hence no government with powers adequate to meet the exigencies of the time.

The United States is not only a democratic republic, but also a federal republic, whose national government should have power adequate to deal with the limited set of responsibilities that we the people, in forming our more perfect union, have given it.  The states as states still have a very important role to play in the lives of American citizens.  Their equal representation in the Senate reflects the federal character of the government, acknowledges the importance of the states, and gives them a mechanism (about which more in a moment) by means of which to defend themselves from the encroachment of the national government.

In defending the apparently pragmatic compromise that created the Senate, Madison indicates that its character actually adds certain great strengths to our constitutional system of government.

  • A second legislative chamber “doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy.” The more hoops that have to be jumped through, the more groups that have to be coordinated, the harder it is for men (and women) bent on tyranny to accomplish their aims.
  • A smaller Senate, whose members serve longer terms than their counterparts in the larger House, is supposed to be less susceptible to “the impulse of sudden and violent passions” and less likely “to be seduced by factious leaders into intemperate and pernicious resolutions.”
  • The longer Senate terms also make it much more likely that Senators will gain a “due acquaintance with the objects and principles of legislation.”
  • The longer terms also mean that Senate membership will be more stable than that of the House, which militates against a “mutable policy,” which is bad for the country abroad and for people at home. A healthy politics emphasizes and promotes stability, not constant change, enabling people to plan in a predictable environment.  The Senate contributes to the former and tends to resist the latter.
  • Similarly, good legislation typically involves planning for the long term. Legislators who serve long terms do not need to rely on short term successes to win reelection.  The Senate, more than the House, encourages a longer time horizon in its members.
  • Because they do not have to respond to immediate political passions, Senators make it more likely that “the cool and deliberate sense of the community” will “ultimately prevail,” as opposed to the heated passions of the moment.

I emphasize that these are Madison’s judgments and predictions regarding the role of the Senate.  They tell us a lot about what he and his colleagues want from republican government, even if the expectations are not necessarily realized in this day and age.  Thus it is important to note that Madison was very concerned to guard against eruptions of popular passion, above all, as he argues at great length in Federalist #10, tyranny of the majority.  He was also very concerned about legislative factionalism, about a small cabal of politicians who could manipulate the process and have their way against even the reasonable and just wishes of the people.  Good government, for Madison, is indeed “representative” government, but it is also stable and intelligent government.  A government that merely reflects the heated passions of the moment, mirroring as closely as possible the current state of public opinion, is not thereby good government.  Sometimes “we the people” have to be brought up short, to be slowed down so as to calm down, and to be forced to consider some perspective other than the one closest to our passions or our interests.

As we consider the Senate in 2018, a number of things have changed, some quite dramatically.  In the first place, since the ratification of the Seventeenth Amendment in 1913, the people of each state, not the state legislatures, have elected Senators.  They are thus less explicitly and self-consciously “representatives” of states as states, and much more representatives of larger electoral units serving longer terms of office.  With equal state representation, the Senate still exemplifies the federal character of our constitutional government, but the Senators’ most immediate constituency is not the state legislatures, which are presumably more concerned about protecting state authority (and hence the federal character of our government), than are the people who, as Madison perhaps hoped (see, for example, Federalist #46), would give their attention and principal allegiance to whichever level of government—state or federal—provided “manifest and irresistible proofs of a better administration.”  Senators will care about protecting state authority from federal encroachment largely because, and to the extent that, their constituents care about that.

A second significant change has less immediately to do with the Constitution and more with the character of Congressional elections.  For a number of reasons connected with the relative homogeneity of Congressional districts, the assiduity with which members of Congress serve the needs and interests of their constituents, and the expense of running for office, the overwhelming majority of seats in the House of Representatives are “safe”; most members of Congress who seek reelection win reelection.  Because states are typically more diverse than Congressional districts, because Senate seats are larger political prizes that attract more able and better funded candidates, and because a six year term provides time enough for a changing mood in the public to shift the ground under an incumbent, Senators are actually less politically secure than their counterparts in the House.  As a result, much of what Madison says about political stability and the benefit of having a long time horizon applies at least as much to the House (if not more so) than it does to the Senate.

Still, political diversity at the state level and the consequent competitiveness of Senate elections makes the upper house different from its counterpart on the other side of Capitol Hill.  We are in the middle of a national conversation about partisan gerrymandering that has even made its way to the Supreme Court.  Among the arguments made about districts expertly crafted to favor the political fortunes of one or another political party—make no mistake, both sides do it—is that essentially uncompetitive races in relatively homogeneous districts encourage politicians to move toward the ideological extremes of their parties.  With nothing to be gained electorally from building bipartisan or ideologically diverse coalitions, they are less inclined to compromise.  In Madisonian terms, partisan gerrymanders in House districts facilitate factionalism while Senate elections help combat the “mischiefs of faction.”  While it might be desirable from the point of view of The Federalist to have a relatively wide array of interests in every electoral district, having that feature in most states and hence in most Senate races is surely better than nothing.

I will close by noting the implications of a couple of additional observations Madison makes in the course of defending the Senate from its overzealously democratic critics.  As I said above, he believed that the Senate would militate against the likelihood and deleterious effects of a “mutable policy.”  Here’s what he says in Federalist #62:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.

Self-government, Madison reminds us, requires that we the people understand more than a little about what government is doing and how it is regulating our lives.  Changeability is indeed a problem, but so is the sheer breadth and detail of contemporary legislation.  Anyone who has tried to make sense of our healthcare legislation or our tax code should feel the force of this argument.  Perhaps the complexity of contemporary life requires this, but we also have to recognize then how this situation challenges our capacity to govern ourselves.  We sometimes complain that, as the old joke goes, “as pro and con are oppositions, Congress is the opposite of progress.”  But it is not clear, to Madison at least, that too much legislation about too many things serves the cause of republican self-government.

In a similar vein, he also observes that legislative hyperactivity gives an “unreasonable advantage” to “the sagacious, the enterprising, and the moneyed few over the industrious and uniformed [ininformed?] mass of the people.  Every new regulation concerning commerce or revenue…presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens.”  Any critic of the political influence of lobbyists could profitably cite this passage written by one of our great founders.  But Madison might suggest that a good point of departure in thinking about how to limit the influence of the sagacious, enterprising, and moneyed few is to consider how many and complicated laws regulating, say, campaign finance actually play to the strength that we are trying to counteract.

We sometimes lose patience with a government, and especially a legislature, that does not move as quickly as we would like.  But for the “cool, deliberate [my emphasis] sense of the people” to prevail, institutions like the Senate, providing one more (and indeed different) hurdle for legislation to jump, ought to be embraced and cherished.  Reconsidering Madison’s arguments in Federalist #62 and #63 might prompt the kind of sober second thoughts about our impatience that we need.

Joseph M. Knippenberg is professor of politics at Oglethorpe University, in Atlanta, GA.

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2 replies
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you for a multi-faceted, thought provoking essay.

    Not only are many laws “so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes;” they are written as vague concepts that are meant to be interpreted, clarified, and implemented by the Bureaucratic aristocracy. As such they most certainly revised before promulgated and undergo incessant changes.

    The EPA has expanded the clean air and water acts beyond the wildest, psychedelic hallucination. The Affordable Health Care Act, beside being an oxymoronic title, was and is incredulously arrogant enacted of law; “You know what’s in it after its passed.”

    Our world is complex, but the greatest and most enduring ideas are the simplest and understood by children.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    “You shall love the Lord your God with all your heart and with all your soul and with all your mind. This is the great and first commandment. And a second is like it: You shall love your neighbor as yourself.”

    ““For God so loved the world, that He gave his only Son, that whoever believes in Him should not perish but have eternal life.”

    “… that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.”

    “And so, my fellow Americans: ask not what your country can do for you; ask what you can do for your country.”

    PSD

    Reply
  2. Ralph Thomas Howarth
    Ralph Thomas Howarth says:

    Across America a host of eighth graders are tasked in passing a constitution test in order to graduate every year. Interpreting the powers of government ought to be predicated on the eighth grader test on the question: if an eighth grader cannot find where in the constitution the government has a particular object of government, then you can rest assure the ratifiers of the constitution did not mean to put it in there.

    Reply

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