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.

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.