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The Senate
For the Independent Journal.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

HAVING examined the constitution of the House of Representatives, and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate.

The heads into which this member of the government may be considered are: I. The qualification of senators; II. The appointment of them by the State legislatures; III. The equality of representation in the Senate; IV. The number of senators, and the term for which they are to be elected; V. The powers vested in the Senate.

I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.

II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.

III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a PROPORTIONAL share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be 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 common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.

In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.

IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.

First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.

Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.

Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate?

A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.

Fourthly. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.

To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.

In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. 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 to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, 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. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

PUBLIUS.

Guest Essayist: Andrew Langer, President of the Institute for Liberty

Article 1, Section 3, Clause 3

3:  No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

In setting out the framework for the fledgling government, the founders grappled  with the most basic issue of creating a government that would not be so powerful as to overwhelm the citizenry, but still strong enough to withstand the test of time.  The Senate, created as an analog to the upper house of Britain’s parliament, was meant to be a more deliberative body than the House of Representatives.

As such, the qualifications are rather different than those set out for House members.  House members need only be 25 years of age, American citizens for only seven years, and need not be actual residents of their congressional district at the time of the election.

In fact, the qualifications set out in this section are rather more proscriptive than those set out in other sections, and it begs the question, “why.”  Keeping in mind that this project will discuss the 17th Amendment at a later time, suffice it to say that initially United States Senators were to be selected by the legislatures of individual states.  Because those doing the selection would be a narrower group in size and scope, the founders wanted to make certain that appropriate choices would be made by these state legislators.  While there is tremendous accountability in having legislators do that selecting, nevertheless the authors of the Constitution thought it best to place strict rules on those qualifications.

Digging deeply into those qualifications themselves, what first jumps out is that the age requirements are greater than those for the House.  If we are to understand that the Senate was to be the more deliberative of the houses of the US Congress, then this makes perfect sense.  The founders recognized that the Senate ought to have a greater level of gravitas (given the limitations on size)—and such gravitas generally comes with age and experience.  Even in the 18th Century, there was a tremendous leap in maturity between the ages of 25 and 30 (which, given life expectancies at the time was approaching middle age).  Madison, in Federalist #62, referred to this as “stability of character.”

This requirement also opens the possibility of potential Senators gaining federal legislative experience by first being members of the US House of Representatives.

Most people are surprised to learn that there are no actual “residency” requirements for US House members—they must merely inhabit the states whose districts they are supposed to represent.  The Constitution’s authors had tremendous faith in the people in terms of being able to decide the propriety of those they would directly elect.  In both the requirements for House members and for Senators, they use the word “inhabit” to make it abundantly clear that they wanted these elected officials to live in their states—and again, the founders came down somewhat more strictly on potential Senators.  According to various historical accounts, Convention Delegate (and member of the committee to author the Declaration of Independence) Roger Sherman moved specifically to substitute “inhabit” for “resident” for these reasons.

While there may have been adequate reasons for not requiring habitation in House districts in the 18th and early 19th centuries, given the finite number of Senators from each state the founders wanted to ensure that someone from that state would be representing that state’s interests in the Senate.  This was especially important when one considers that given the realities of travel and transportation at this time, as well as prevailing political perceptions (as evidenced later by the 9th and 10th Amendments), the states themselves were viewed as sovereign entities in their own right.

According to the Senate’s official history, the 9-year citizenship requirement was a compromise—between those who believed that anything less would allow for people with a remaining “dangerous attachment” to their mother countries to gain undue influence in American affairs (especially given the Senate’s role in ratifying treaties with foreign nations), and those who believed that anything more would hinder “positive immigration” and offend those nations in Europe who had lent support for our revolution.

It is interesting to note in this regard that this qualification differs greatly from that of the President’s.  The founders recognized that because the Senate’s power was diffused among many members, the President, as Commander-in-chief  and the Chief Executive of the United States, acts with a solitary and unilateral power (within limits).  So while the President must be a natural-born citizen, the same does not hold true for Senators.

All in all, while relatively straightforward, once again the founders demonstrated their brilliance in laying out a strong yet simple framework for our nation’s government.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

Posted in Analyzing the Constitution Essay Archives | 10 Comments »

Guest Essayist: Joe Postell, University of Colorado at Colorado Springs

Article 1, Section 3, Clause 2
2:  Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes.  The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies 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.

This seemingly-minor provision of the Constitution is in fact highly important.  Although we rarely pause to consider it today, deciding that one-third of the members of the Senate would be up for re-election every two years is counter-intuitive.  Why not just say that each senator has a six year term and hold elections for the entire Senate every six years?  The House of Representatives does not have staggered terms, in which half of the Members are elected each year.  Why is the Senate different?

The most important characteristic the Senate is supposed to provide is stability, as James Madison makes clear in Federalists 62 and 63.  A huge problem during the 1780s was the mutability, or constant changing, of state laws.  The assumption of the Founders was that elections would tend to oust a relatively large percentage of incumbents in each election cycle, which would produce mutability in the laws.

Today about 90% of incumbents are re-elected in an average election cycle.  But at the time of the Founding, incumbents were not as safe.  Joseph Story wrote in his Commentaries on the Constitution that “mutability in the public councils, arising from a rapid succession of new members” creates “serious mischiefs.  It is a well known fact in the history of the states, that every new election changes nearly or quite one half of its representatives.”  And the more new members in a legislative assembly, the more changes will be made to the laws, producing greater instability.  According to Story, “experience demonstrates, that a continual change, even of good measures, is inconsistent with every rule of prudence and every prospect of success.”

Why is instability in the laws so bad?  Madison gives five reasons in Federalist 62, all of which are highly relevant today.

First, instability is harmful because it undermines foreign policy.  The Senate has an important role in foreign affairs.  If the character of the Senate changes dramatically at one time, due to every member being elected, it could result in a dramatic shift in foreign policy.  This would make us seem less trustworthy to other nations in the world, and make them less agreeable to our interests.

Second, instability in the laws “poisons the blessings of liberty itself.”  This is because it undermines the rule of law, which requires that laws be settled and known to everyone.  But if the laws are constantly changing because the legislature is constantly changing, “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.”  Re-electing all senators at one time would undermine the stability in the laws necessary to preserve the rule of law.

Third, instability in the laws gives an “unreasonable advantage…to the sagacious, the enterprising, and the moneyed few, over the industrious” of the people.  This is because changes in the laws will be known and tracked by the wealthy, who will be able to take advantage of the new laws.  “Every new regulation concerning commerce,” Madison explains, “presents a new harvest to those who can watch the change, and can trace its consequences.”  Joseph Story concurred, that “the instability of public councils gives an unreasonable advantage to the sagacious, the cunning, and the monied capitalists.” Thus, instability in the laws, caused by volatility in the Senate, allows insiders to take advantage of all the new regulations.

Fourth, instability dampens entrepreneurship.  Who will be willing to consider new business opportunities if there is a concern that the government’s laws may change tomorrow?  Economies succeed when laws are stable and not constantly changing.  Madison writes, “What prudent merchant will hazard his fortunes in any new branch of commerce, when he knows not but that his plans may be rendered unlawful before they can be executed?”  Stability in the Senate ensures that entrepreneurs can create jobs without being afraid of what government might do in the near future.

But the fifth and “most deplorable effect” of constantly changing laws, Madison writes, “is that diminution of attachment and reverence” for the law which it produces in the people.  When the laws are constantly changing, citizens’ faith in their government and in their representatives is reduced.  This is the worst effect of unstable laws produced by unstable legislatures.

The primary purpose of the Senate is to produce stability in the government and in the laws produced by the government.  This provision of the Constitution promotes stability by ensuring that only one-third of all senators are up for re-election in a given election cycle.

Posted in Analyzing the Constitution Essay Archives | 12 Comments »

Guest Essayist: Professor John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Federalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.

Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose.  Federalist #51, therefore, begins with the question: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?”

Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).

As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.”  Isn’t this just a cynical approach to government?  Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.

The “preservation of liberty” requires “that each department should have a will of its own and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another.” (emphasis added). The federal judiciary, in particular, does not meet this test.  Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”

This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch.  Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government.  With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.

  •        “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.:
  •        “The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack.”
  •        “Ambition must be made to counteract ambition.”
  •         “The interest of the man, must be connected with the constitutional rights of the place.”
  •        “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”
  •         “If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.”
  •         “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans.  To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”

Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.

It is often said in the media that the American people want the branches of the Federal government to work together.  The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people.  Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.

In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other; at the same time that each will be controlled by itself.     Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.”  The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions.  As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.”  Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.

The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise.  This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself.” (emphasis added).

This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress.  The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.

One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states.  As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.

For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible.  The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Publius’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.

Wednesday, July 7th, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University

 

July 22, 2010 – Federalist Paper No. 62 – Janine Turner

Howdy from Texas! The day is finally here! Federalist Paper No. 62. The first Federalist Paper I ever heard quoted. The Federalist Paper that stimulated my 90 in 90 = 180 essay. This Federalist Paper that started it all.

I thank you for joining us today and I thank Professor Will Morrisey for his wonderful essay!

Federalist Paper No. 62 offers so many pearls of wisdom. James Madison was absolutely remarkable.

Here are some of the mind-boggling relevancies.

Dare anyone read these and state that the United States Constitution and Federalist Papers are not applicable to today?

Federalist Paper No. 62 states:

“In this spirit it may be remarked, that the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty.”

This is how our founding fathers intended the checks and balances to be. This statement of James Madison is one of the reasons why everyone should read the Federalist Papers. It reveals the real intention of the structure of our government and empowers one with an understanding of the thesis for our government. By acquainting oneself with the facts, one becomes aware of how drastically our founding structure has changed.

Knowledge is power.

“No law of resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states.”

Healthcare would never have passed, nor many of the unfunded Federal mandates if the sovereignty of the states had been maintained and represented in the Senate.

“Excess of law making seem to be the diseases to which our governments are most liable..”

Relevant.

“It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust,”

Relevant.

“In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.”

Relevantly revealing as to why we needed the Senate to be representatives of the state.

“A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.”

Relevant: we need representatives that are devoted to the people and best understand the ways of congress, laws and legislation.

“What indeed are all the repealing, explaining and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom.”

Relevant: Vet our candidates. Do they know the United States Constitution? Do they have the adequate requisite humility, heart and knowledge sufficient for the job?

“One nation is to another what one individual is to another.”

Profound.

“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. 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 to-day, can guess what it will be to-morrow. Law is defined to be a rule of action n; but how can that be a rule, which is little known, and less fixed?”

Really, really relevant. This is the quote that started it all for me.

“Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people.”

Relevant.

“The want of confidence in the public councils damps every useful undertaking..”

Relevant.

“What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?”

Really Relevant.

“What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?”

Relevant.

“But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes.”

Brilliant.

“No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”

Sagacious.

Relevant. Relevant. All so very relevant.

Spread the word.

God Bless,

Janine Turner

Friday, July 23rd, 2010

 

In Federalist No. 62 Publius explains that the Senate was intended to be the more deliberative body.  It was designed to be very different from the U.S. House.  Senators must be older, age 30 instead of the required age 25 for the House; must have been citizens longer, nine years required for the Senate, while only seven for the House; and Senators were to be appointed by State Legislatures (until the ratification of the 17th Amendment providing for direct election of Senators).  Senators’ terms of office are six years, while U.S. House members serve for two years.

These differences were meant to slow the legislative process, to provide for a “cooling off” period, from the passions of the U.S. House.  There is a famous, often quoted story, of Thomas Jefferson (who was in France during the Constitutional Convention) returning to the U.S. and asking Washington why the delegates had created a Senate.  In Washington and Jefferson’s day, people often poured their hot coffee into their saucer before drinking it, to cool it.  Washington observed Jefferson doing this, and asked “Why did you pour that coffee into your sauce?” When Jefferson replied the obvious, “to cool it,” Washington answered, “Even so, we pour legislation into the Senatorial Saucer to cool it.”

The Senate’s famous tactic of the filibuster is another longstanding tradition meant to slow the legislative process. The  U.S. Senate website notes that until the cloture rule was adopted in 1917, there was no way to stop extended debates except by “unanimous consent, compromise, or exhaustion.”

It is hard to read Federalist No. 62 and not be reminded of the healthcare bill that recently became law.  Many of the founders’ words of warning found in this essay could have easily been written just a few months ago about this legislation which was hurried through the Congress, without the thorough vetting or deliberation our Founders intended:

“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”

“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 to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

One might wonder why the Senate did not act as the Founders’ had intended, as a brake on this rush to pass a healthcare bill that many Members of Congress did not have time to read?  The fact that State Legislatures no longer appoint U.S. Senators may have certainly had an impact, as well as the general partisanship that exists so much more in the Senate today, than in the past.

One thing is certain, Publius’s careful explanation of the Founders’ intentions in creating the Senate is as good as any political science textbook I have ever read. We should all work to get the Federalist Papers back into the schools and colleges!  Thomas Jefferson called the Federalist, “The best commentary on the principles of government which has ever been written.”  Federalist No. 62 certainly lives up to that billing!

On to Federalist No. 63!

Good night and God Bless,

Cathy Gillespie

Friday, July 23rd, 2010

 

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Publius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.

The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will?  If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.

The state problem: can a centralized modern state—indispensable in a world full of such states—nonetheless provide `political space’ for local and regional self-government?  Or must centralization in the national capital or in the capitals of the constituent states of the federation necessarily dry up the springs of citizenship—active participation by the body of citizens in their own communities?

To keep track of Publius’ argument, it’s useful to outline it.  He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three.  His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than 90% of his attention.

The qualifications of senators (#62, paragraph 2).

The appointment of senators by the state legislatures (#62, paragraph 3).

The equality of representation of the states in the Senate (#62, paragraphs 4-6).

The number of senators from each state and their term in office (#62, paragraphs 5-16; #63, entire); this topic divided into the “six inconveniences” American suffers in not having such a body.

The powers invested in the Senate (#64, #65, #66).

With this outline in hand, consider Federalist #62.

An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least.  Because the senate exercises power over foreign policy—particularly, ratification of treaties and declaration of war—a senator should know more and exhibit greater “stability of character” than a House member.  This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse.  We might think the opposite, but of course we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.

To prevent such consolidation, the Framers had the senators appointed by the state legislatures.  This assured the state governments a means of defending themselves from within the federal government itself.  In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at risk of his re-election.  The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of the legislatures.  This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old `spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses.  Eventually, the roads to re-election became: first, bringing home the bacon legally and, second, providing constituent services to voters needing a guide through the bureaucratic maze.  This corrupted the intention of the Framers and led to civic indifference—`consumerism’ in politics instead of self-government.

An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate.  Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states.  But he also fits the Senate into his larger conception of the regime.  As he has already explained, the new regime is an extended republic (Federalist 10); it controls the effects of faction by multiplying factions over a large territory.  American is also a commercial republic, unlike the military republics of antiquity—most notably, Rome.  With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.”  Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws enacted by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.

Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate?  Can republics think?  Can they act faithfully, steadily?  Can they be wise husbands, not silly gigolos?

The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures.  Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies.  Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens.  “It will be of little avail to the people that the laws are made by men of their own choice if the laws by so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment.  Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself.  “Anything goes,” indeed.

If anything goes, then respect for the regime will go, too.  Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.

Thursday, July 22nd, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

 

Greetings from Mt. Vernon Virginia! Thank you Professor Morrisey  for your enlightening essay on Federalist 63! The methodical nature in which Publius addresses every aspect of the Constitution, and the elements of the government of the United States never cease to amaze me.   Federalist 62 explained how the Senate was to be organized: qualifications, appointment by state legislatures, equal representation among states, number of members and term, and the purpose of the Senate; Federalist 63 elaborates on the unique role of the Senate and its responsibility, while Federalist Nos. 64-66 explore its powers.

Federalist 63 emphasizes the role of Senators as Statesmen. By design, Senators were intended to be mature individuals who exercise responsibility, and give consideration to the long term impact of a “succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation.”

Some would argue there are fewer true Statesmen in the Senate today than we have seen in the past. Senators such as Henry Clay, Daniel Webster, and John Calhoun don’t seem to exist in the same way they once did.  However, we recently lost such a statesman, Senator Robert Byrd of West Virginia.  While some may question Senator Byrd’s support of prolific federal spending, he is the undisputed “Father of Constitution Day,” held each September 17!

Senator Byrd’s amendment to the Consolidated Appropriations Act of 2005 designated September 17, the anniversary of the 1787 signing of the Constitution, as Constitution Day.  This bill was signed into law by President Bush on December 8, 2004 as Public Law 108-4-47.  Thanks to Senator Byrd, on September 17 all educational institutions receiving federal funds are required to hold programs on the United States Constitution.

Janine and I have a goal to imbue Constitution Day into the cultural consciousness of our country!  Constituting America is planning several events in Philadelphia this September 17, featuring our We The People 9.17 Contest for Kids Winners.  If you will be in the Philadelphia area, please join us!  Watch our website for more details.

Thank you, Senator Byrd, for your vision in establishing this important day of recognition for the United States Constitution in our country.  Thank you for your service to our Nation.  While I may not have always personally agreed with your votes and your interpretation of the Constitution, I will miss your Statesman-like grace and love for our founding document!

Below are Senator Byrd’s own words about Constitution Day:

CELEBRATING OUR CONSTITUTION

Our Constitution is the foundation of our freedoms.  Just a few pages, written on parchment, established for all time the direction and structure of these United States.  The first ten amendments, known as the Bill of Rights, guarantee our freedoms:  freedom of speech; freedom of religion; the right to assemble; the right to petition the government; the right to bear arms; and the right to vote.  Our liberties are protected by that Constitution, not only by the Bill of Rights, but also by the separation of powers and the checks and balances among the three equal branches of our government.

Each of us should give thanks that on September 17, 1787, our forefathers signed their names to the new Constitution and launched mankind’s most remarkable experiment in self-governance.

But a great Republic cannot sustain itself unless its citizens participate actively in their own government.  To do that, I strongly believe, that our citizens must be familiar with the Constitution and the intent of the Framers who wrote it.

In December 2004, I helped to enact a federal law that designates September 17th of each year as Constitution and Citizenship Day.  I did so because I care so deeply about this precious document.

Consequently, I invite all Americans to take the time on September 17th to read, analyze, and reflect on the Constitution.  It is a learned and dynamic document.  Brilliant in its brevity, it remains extraordinary in its wisdom.  It is my hope that citizens of every State in the Union, including children, will be inspired to organize local celebrations on Constitution Day.

Let us spread the excitement of celebrating Constitution Day far and wide, through every hill and dale, across the Great Plains, through the Deep South, across the West, the Southwest, the Northeast, as well as up and down the Atlantic Seaboard, and especially in West Virginia.  Let us all unite on September 17th to appreciate our magnificent Constitution.

Unless we understand our birthright and guard it vigorously, we risk losing the gift of the Framers.  Our Constitution continues to inspire millions around the globe.  It has survived the stresses and strains of more than 221 years of incredible challenge and change.

Our Constitution’s Framers were willing to risk everything they owned, even their own lives, to give us the great treasure that is our nation and our form of government.  Each of us has an obligation to hand that treasure on to future generations intact and strong and secure.”

Friday, July 23rd, 2010