March 20: Federalist 62: The Structure And Role Of The Senate – Guest Essayist: Forrest Nabors

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The notes of the Federal Convention that framed the Constitution of the United States in 1787 show that from the beginning of their deliberations the delegates generally assumed that the legislative branch of the general government would be bicameral. They did debate how the legislators of each house would be chosen and how legislative districts would be drawn, which was settled by the so-called “Great Compromise” between the large and small states. But they did agree without debate that the national legislature would be divided into a lower and upper house. The next two essays are about the upper house, the Senate of the United States.

The Latin word senatus, worn by the famous Roman legislature that produced so much greatness, means “old” or “venerable.” The meaning of this word that the framers of the Constitution borrowed from Rome gives us a hint of the intended character of the Senate. The requirements for eligibility confirm that intention. The minimum age of members in the Senate is thirty, or five years older than the minimum age required for membership in the lower house, the House of Representatives. When the Constitution was drafted, lifespans were shorter and lives were more vigorous; hence, these additional five years provided adequate insurance that Senators would possess “greater extent of information and stability of character,” as Publius explained in Federalist 62. Senators had to be citizens for nine years, two more years than Representatives. The framers added those years as a safeguard, because Senators were directly involved in “foreign transactions” – such as the ratifications of treaties and the confirmation of ambassadors – and needed to be “thoroughly weaned from the prepossessions and habits incident to foreign birth and education.”

Before the Seventeenth Amendment moved the selection of senators to the direct choice of the people in 1913, the Constitution required the state legislatures to choose them. This original mode of selection was not appropriate for the House of Representatives because that body was intended to supply the general government with the most accurate representation of the popular will. But because the framers intended to emphasize wisdom rather than popular will in the Senate, the selection by state legislatures made sense. Members of state legislatures were already engaged in the business of government, had close knowledge of their peers and could better espy weakness and talent than could Americans generally, who were busy with their own lives and remote from government. Since the state legislatures were drawn directly from the people, the selection of senators still remained lodged in the people, but indirectly so, rather than directly. Therefore, the composition of the Senate sacrificed some popular control, but not all, in the interest of collecting wisdom tested by experience and confirmed by the choice of peers who already knew the best candidates.

Although the states were not completely sovereign within the Union, they did retain some sovereignty. Therefore, the fixed allotment of two senators to each state rather than a varying allotment based on population recognized, as Publius wrote, “the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.” Sovereignty, or the supreme governing authority, was diffused throughout the composite system, divided into state and national government and each further subdivided into three branches. The allotment of two senators to each state and selected by each state legislature linked the state and national governments together, and gave the states a means of directly representing their interests as one political society to the larger political society of which each state was a part. By requiring the concurrence of each house in legislative measures, both a majority of the people (the House of Representatives) and the states (the Senate) had to agree, which reflected the composite nature of the Union.

Two legislative houses, Publius argued, would provide a safeguard in the event that one house undertook “schemes of usurpation or perfidy.” The difference in character between the two houses further diminished the likelihood that both might become contaminated by corruption at the same time. Composed of a smaller number of members who were older, served longer, and were chosen by their peers in state government, the Senate was intended to give another important check against the more populist, younger and more frequently rotating members of the House of Representatives. The Senate would be less likely to yield to an ephemeral, passionate impulse which produces mutability of laws, and this infirmity in turn erodes popular respect for laws and the rule of law. With their greater experience, senators would stop ill-informed bills that might do some harm unforeseen by the other house. Their coolness, experience and wisdom would balance the passions, inexperience and hastiness in the other body. Thus, the planned role of the Senate was vital to enacting wholesome and necessary national legislation, was indispensable to the general government and placed the American republic in a likely position to gain an estimable reputation among the nations.

Forrest Nabors is Associate Professor of Political Science at the University of Alaska Anchorage and is the author of From Oligarchy to Republicanism: The Great Task of Reconstruction.

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

    Very interesting essay. Thank you. I look forward the follow up essay.

    I cannot help but wonder whether the 17th amendment was an improvement on the original design. I can see where leaving the selection to State legislature could make the those selections vulnerable to “intrigue.” But selection by popular vote is not immune to abuse and manipulation. As noted by essayist, the complex and varying combination of selection processes, age, citizenry, and numbers provided many degrees of freedom that leads to longer mathematical odds that subterfuge could actually be coordinated on a large scale.

    Thank you.
    PSD

    Reply
  2. Jeffrey
    Jeffrey says:

    There is another role in the original design: the Senators represented the interests of their states. Removing this element by the 17 th Amendment was one of the ways States Rights were demoted . I don’t know if that is a good thing in the long run.

    Reply
  3. Ralph Thomas Howarth
    Ralph Thomas Howarth says:

    The Papers of James Madison delayed publish until after 1830 revealed that the states are the “parties to the constitution.” This means the 17th Amendment was an act if succession as the former league of states required the state parties to have equal suffrage in the Senate. About seven states never gave that consent and so are the original United States under that 1789 compact. Article V requires the Senate to represent the states as the parties to the constitution.

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