Federalist No. 66 – Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered, From the New York Packet (Hamilton)

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Guest Essayist: Horace Cooper, writer and director of the Center for Law and Regulation at the Institute for Liberty

In Federalist #66 Alexander Hamilton attempts to respond to objections about the new United States Senate acting as the Court in the event of impeachments of judges or executive branch officials.

The first complaint raised by critics of this set up was that “the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well established maxim which requires a separation between the different departments of power.”  It is noteworthy that Hamilton eagerly accepts the notion that liberty is protected by dividing duties among several branches of government.  In the case of the Senate acting as the impeachment court Hamilton suggests that this “partial intermixture of those departments for special purposes” is acceptable because of the benefits which accrue and because the Constitution doesn’t really mix these as much as critics charge.

Hamilton notes that the House and the Senate play unique roles that are essential — the House acts as the accuser and the Senate acts as the jury or judge.  The House requires a simple majority for the accusation, but the Senate requires a concurrence of two-thirds ensuring that a too hasty or contrived accusation isn’t carried out.  He next points out that in the State of New York the Senate is the impeachment court and the highest judicial authority for civil and criminal cases.  If having the United States play a role as jurors in impeachment is unwarranted, how much more so is it true with the Constitution of New York?

The second issue raised is that having the Senate act as the Court “contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic.”    Not only does the Senate in conjunction with the Executive have treaty-making power, critics charged that the impeachment role potentially made them the most influential division of government.  Hamilton says that there is no objective measure of which part of the new government was the most influential.  Instead Hamilton argues that we should recognize that the House of Representatives being the popularly elected branch is most likely to be the most powerful and influential branch of government.  Hamilton explains that the House initiates impeachment (a strong power), and it is noteworthy that all revenue bills must originate in the House.  The House also adjudicates disputes over the election of the Presidency.  Weighed together the unique powers of the House demonstrate that there isn’t too much power being concentrated by the United States Senate.

The next objection was that the Senate would be ineffective in this role because “they would be too indulgent judges of the conduct of men, in whose official creation they had participated.”  Here Hamilton explains that the criticism leveled against the Senate goes against the example in most of the state governments and almost all national governments that Hamilton has ever seen.  All of them presume some role on the part of the parties that appointed individuals in policing those individuals’ misdeeds.  Hamilton says that one byproduct of this dual function is that Senators may be more scrupulous about who they vote to confirm since they will ultimately be called to task in the removal of those individuals if they act corruptly.  Additionally since they only vote to confirm and in fact the Constitution contemplates no role in the actual selection of the individuals ultimately nominated there is little reason to think that Senators would take casually their responsibilities to confirm or convict in an impeachment trial public officials.

The final complaint was that the Senate can’t objectively carryout this responsibility because “union with the Executive in the power of making treaties” may be the occasion for actual collaboration in misdeeds and corruption.  Here Hamilton is responding to charges similar to those in objection number three.  Instead of alleging lenience by the Senate, this objection is that perhaps the Senators would somehow be complicit in the misdeeds of the individual being impeached and therefore would fail to carryout their duties with regard to the impeached individual.

Hamilton argues that this complaint really is a complaint against the integrity of the President and the Senate generally.  Whether they had impeachment power or not, their propensity for misdeeds would be distinct and separate from the issue of abusing the impeachment court process.  There is no reason to think that their unique role as Senators would make them more likely to support corruption than would being a Member of the House of Representatives Hamilton explains.  Nevertheless, Hamilton recognizes that even if individual members of the Senate were corrupt, the fact that they must all act in concert minimizes the likelihood that some corruption on the part of an executive branch official would be collaborated and harbored by two-thirds of Senators.

Finally, Hamilton closes with this prescient observation.  Perhaps the greatest assurance that the Senators will carryout their responsibilities in impeachment impartially is that it would serve to “divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.”  In other words, rather than suffer in the public’s eye, Senators will readily impeach corrupt officials.

Wednesday, July 28th, 2010

Horace Cooper is a writer and is the director of the Center for Law and Regulation at the Institute for Liberty


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