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Federalist No. 64

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The Powers of the Senate
From the New York Packet.
Friday, March 7, 1788.

Author: John Jay

To the People of the State of New York:

IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it.

The second section gives power to the President, “BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR.”

The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.

As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged.

Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved.

There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws.

It seldom happens in the negotiation of treaties, of whatever nature, but that perfect SECRECY and immediate DESPATCH are sometimes requisite. These are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.

They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other.

But to this plan, as to most others that have ever appeared, objections are contrived and urged.

Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected.

Others, though content that treaties should be made in the mode proposed, are averse to their being the SUPREME laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.

However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?

As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter.

As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.

With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments.

PUBLIUS.

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Article II, Section 4 of the United States Constitution

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Guest Essayist: Julia Shaw, Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies, The Heritage Foundation

Article II, Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Impeachment is the only constitutional way to remove a President (or another official or a judge) for misconduct. Publius notes in Federalist 64 that the “fear of punishment and disgrace” will encourage good behavior in the executive. Impeachment is an integral part of maintaining the separation of powers and the republican form of government.

To understand the impeachment process, we must look to the related clauses in Article I. Unlike the Rules and Expulsion Clause, by which the house to which a Member of Congress belongs may expel that member, the legislature and the judiciary participate in the impeachment of a president. A vote for impeachment is not equivalent to a vote for immediate removal. Impeachment refers to the House’s vote to bring charges against an officer, and that vote begins a particular process. After the House impeaches a president, the Senate tries him with the Chief Justice presiding over the proceedings. In Federalist 65, Publius notes that the Senate would have the requisite independence needed to try impeachments: “What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?” The supermajority requirement guards against impeachments brought by the House for purely political reasons. The president may not pardon a person who has been impeached.

Impeachment disciplines a President who abused his constitutional responsibilities. As Stephen Presser suggests in his essay on Article I, Section 2, Clause 5 in the Heritage Guide to the Constitution, when the President commits an impeachable offense, the Members of the House are obligated by their oath to preserve the Constitution to deal with the offense. But, what constitutes an impeachable offense? At the Constitutional Convention, the delegates initially proposed “mal-practice and neglect of duty” as grounds for impeachment, but the Committee of Detail narrowed the basis to treason, bribery, and corruption. George Mason suggested “high Crimes and Misdemeanors” as another grounds for impeachment when his previous suggestion of “maladministration” was rejected for rendering the President’s too dependent upon Congress. Impeachment was meant to encompass serious offenses, but not to be a political tool to block a president from exercising his authority.

Impeachment is a remedy to be used in extreme situations, and Congress has used this device sparingly over the past two hundred twenty years. Only two Presidents have been impeached (Richard Nixon resigned before the House voted to impeach), and only a handful of judges have been impeached and subsequently removed from office. No president has been successfully removed from office.

In Federalist 77, Publius explains that “being at all times liable to impeachment” would prevent the president from abusing his power. Impeachment is not equivalent to a simple majority vote of no confidence, as is sufficient to remove a prime minister in parliamentary system. Rather, it is a process that engages the legislature and the judiciary in a grave constitutional act to remove the head of state. Perhaps it is so rarely used, and so rarely needed, because the stakes are so high.

Julia Shaw is the Research Associate and Program Manager of the B. Kenneth Simon Center for American Studies at the Heritage Foundation.

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Article II, Section 1, Clause 3 of the United States Constitution

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Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

 

Article II, Section 1, Clause 3

 

3:  The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.

When determining the mode for selecting the President, the Framers were faced with a conundrum.  The President was to be a leader who could act with energy and dispatch.  Yet he was to maintain his constitutional pedigree as a republican, and he must exercise wisdom and judgment.  It was hoped that the President would be, as Henry Lee said in his eulogy of George Washington, “first in war, first in peace, and first in the hearts of his countrymen.”  But the president was not to gain that position as an American Caesar, a man whose immense talents and genius also proved to be fatal to that ancient republic that Revolutionary War-era Americans so admired.

Perhaps even worse, because so much more likely in the ordinary case, would be the man who, lacking the genius of a Caesar, would gain office through “talents for low intrigue, and the little arts of popularity,” as Hamilton sneered in Federalist 68.  To Americans of the time, “popular” suggested a certain cravenness and lack of principle.  Such a person would do what advanced his political standing, rather than what was best for the country.  As Plato long ago warned in his description of the demagogue (Greek for “leader of the people”), this was a particular flaw of democracy.  Such a man was most likely to emerge in a system that placed no electoral barrier between the mass of the people and him.

Hamilton’s response during the Philadelphia Convention was a complex multi-layered proposal of election by electors selected by regional electors themselves elected by some class of voters.  Such a convoluted system resembles an electoral Rube Goldberg-contraption. However, the historically well-read Framers had the experience of other republics from which to draw, and Hamilton’s system was a simplified (if that can be imagined) variant of the election of the Doge of Venice.  A system of electors avoids the democratic pitfalls of election of unqualified flatterers by a people corrupted by promises of favors or bedazzled by a façade of handsome features and soaring, but empty, rhetoric.  But, without more, election by a council of the few does not avoid the oligarchic pitfalls and factionalism inherent in any cohesive and organized group, characteristics Madison warned against in The Federalist.  Hamilton’s proposal would increase the number of participants and disperse their decisions.  This made it more difficult for a candidate to gain office by corruption and intrigue through a small and cohesive faction.

The Framers did not go along with the particulars of Hamilton’s proposal.  But, after making the easy call against direct popular election and rejecting, as well, election by Congress or by the state legislatures, they settled on a system similar to the one proposed by Hamilton. In the process, they resolved several practical problems.  Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. In effect, the Electoral College would nominate the candidates.  The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.  The winner of the House vote would be President, the runner-up would be Vice-President.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than an immediate vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

Hamilton and others assured Americans that corruption and the influence of faction would be avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they would meet in separate states at the same time rather than in one grand national body. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

The system never quite worked as intended.  After Washington’s election, the nomination of Presidents was informally taken over by factions in Congress, in a process dubbed the Congressional caucus system.  That system immediately caused the untenable situation of a President (Adams) and a Vice-President (Jefferson) from opposing factions.  The debacle of the House-controlled election of 1800 brought about by the intra-factional rivalry of Jefferson and Burr placed the young American experiment in self-government in mortal danger. That, in turn, brought limited reform through the 12th Amendment.

Though the constitutional shell remains, much of the system operates differently than the Framers thought. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions (political groups that focus on a particular issue or coalesce around a charismatic leader) in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.  Read more from Professor Knipprath at: http://www.tokenconservative.com/ .

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Federalist No. 62 – The Senate, For the Independent Journal (Hamilton or Madison)

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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.

 

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Federalist No. 63 – Cathy Gillespie

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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

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Federalist No. 64 – Cathy Gillespie

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Federalist No. 64 begins a discussion of the powers of the Senate, specifically the power to ratify treaties.

It is interesting that the Senate and the House each possess distinct powers, reflective of the founders’ view of each institution’s strengths.  The U.S. House, closer to the people, controls the “purse,” while the U.S. Senate, designed to be the more stable and mature body, handles issues such as ratification of treaties, confirmation of certain executive branch officials and Supreme Court Justices, and serves as the court for impeachment trials.

The Senate’s power to ratify treaties the President makes is another example of the brilliant system of checks and balances designed by our founders.   The founders had great confidence in the ability and character of the Senators that would serve, based on the qualifications they had to meet in order to be appointed, and based on the fact that they would be appointed by the State Legislatures.

Publius states:

“This mode (appointment of Senators) has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.”

I wonder how often Federalist No. 64 was quoted during the debates on the 17th Amendment almost 100 years ago.

Publius goes on to extol the level of qualifications a Senate candidate must meet in order to be appointed, “men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

In this age of sound bites, with newspapers closing every day, there is less and less substantive reporting about candidates. It seems that in the modern age, it is easier than the Founding Fathers imagined for the people to be “deceived by those brilliant appearances of genius and patriotism, which like transient meteors, sometimes mislead as well as dazzle.”

This quote jumped out at me as well:

“In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole.”

When the federal government makes policy that puts undue burdens on states, it is not “advancing the good of each of the parts or members which compose the whole.”

The Founders put every precaution and a carefully balanced structure in place to ensure members of the U.S. Senate were “men of talents and integrity.”

However, as is often repeated on these blog pages, and by Publius, the final check is “the genius of the people.”

Get to know your U.S. Senators.  Which, if any, in your state are up for re-election? Research their voting record.  Go to their August town hall meetings.  Write them a letter.   Find out if your Senator is a man, or a woman, “of talents and integrity.”

Knowledge is power!

Good night and God Bless!

Cathy Gillespie

Tuesday, July 27th, 2010

 

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Federalist No. 64 – Janine Turner

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Howdy from Texas.

Publius speaks in Federalist No. 64

“That the attention and votes will be directed to those men only who have become the most distinguished by their abilities and virtues.”

Virtue. Virtue is a very beautiful word. Virtue. It is a word used quite often in the Federalist and is obviously a word that carried with it tremendous power and necessity in both the course of human endeavors and the political sphere. Do we still revere it today?

Virtue: the quality of doing what is right and avoiding what is wrong. 2. Any admirable quality or attribute; “work of great merit” 3. A particular moral excellence.

An acronym of the word virtue lists what we should look for in our representatives and in our future candidates.

Verify

Identify

Responsibility

Trust

Understand

Engage

1.Verify our Representative’s and/or candidate’s claims.

2. Do we identify and agree with our Representative and/or candidate’s mission?

3. Does our Representative and/or candidate have a record of civic responsibility?

4. Do we trust that our Representative and/or candidate will uphold our Constitution?

5. Is our Representative and/or candidate’s mission thoroughly transparent and do we thoroughly understand his/her mission beyond the, as John Jay states in Federalist No. 64, “brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

6. Do we feel that our Representative and/or candidate will engage in proper behavior and maintain a steady course to establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity?

Virtue in our leaders is most definitely a necessity that our present times warrant.

The preamble mentioned above is profoundly pertinent to our struggles today.

Establish Justice – a Republic promises this to what extent and at what price?

Ensure domestic tranquility – do not our borders need to be defended in a prudent, precise manner that prevents a spark from becoming a bonfire?

Provide for the common defense – the enemy is in the field – is due diligence being paid to this omnipresent fact?

Promote the general welfare – are not the definitions of this statement at a fevered pitch? Promote the general welfare to the point of a Republic’s and its people’s demise?

Secure the blessings of liberty to ourselves and our prosperity – Are our children guaranteed life, liberty and the pursuit of happiness? Will our Republic still stand for them?

“However useful jealousy may be in republics, yet when, like bile in the nature, it abounds too much in the body of politics, the eyes of both become very liable to be deceived, by the delusive appearances that the malady casts on surrounding objects.”

John Jay says it best. Relevant? I say, “yea.”

“They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious.”

Ominous, foreboding and motivating is John Jay’s wisdom.

Who will pay heed?

God Bless and I thank you for joining us and I thank Professor Morrisey for his true commitment and patriotism.

Janine Turner

Tuesday, July 27th, 2010

 

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Federalist No. 64 – The Powers of the Senate, From the New York Packet (John Jay)

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

Publius now begins his fifth and final topic respecting the Senate: its powers.  In Federalist 64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress.  Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”).  State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government.  One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work?  The record of the nineteenth century suggests that it did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Seward, Lodge: these men enjoyed more prominence than most of the presidents of their time.  Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889.  One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable account of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties.  The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers.  The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review.  The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land.  This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous.  Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.”  Treaties are contracts between nations not under one another’s sovereignty.  They are harder to enforce than ordinary laws.  Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances.  This does not mean that the United States cannot withdraw from a treaty—break the contract.  But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force.  The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several of the phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law meant that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing constitutional law?  This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war.  Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus thus far has been “no.”  Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any constitutional law.  If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states.  The Constitution, federal statutes, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: it is held by the body that represents the states.  The most `locally’-centered branch of the national government will hold the most `international’ power.  Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments.  This it might have done, but the more powerful domestic issue of slavery overcame any such sentiments in the 1850s.  Be this as it may, lodging the treaty ratification power in the Senate solves the problem of the Articles.  It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.

Monday, July 26th, 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.

 

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Federalist No. 65 – The Powers of the Senate Continued, From the New York Packet (Hamilton)

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Guest Essayist: Troy Kickler, Ph.D., Founding Director of the North Carolina History Project

Alexander Hamilton penned three essays (Federalist 64 – 66) explaining why the U.S. Constitution invested the U.S. Senate with certain powers.  In The Federalist 65, he explains, in particular, the Senate’s role in the impeachment process, and why that body–and not the Supreme Court–had been given the authority to convict.

According to the Constitution, the House of Representatives impeaches a national, public official and the Senate hears the trial and issues a verdict. Since 1789, when the U.S. Constitution was ratified, seventeen Americans have been impeached.   The list includes President Andrew Johnson and President William Clinton; however, it includes mainly judges at the U.S. District level.  Among those accused of political misconduct, one resigned before his trial, seven have been convicted, and eight have been acquitted.  Congress can only remove the convicted from their current political office.  The court system will hear any other trials and issue punishment for possible criminal acts.

For the impeachment process, the Constitution requires 1) that Senators “be on Oath or Affirmation,” 2) that the Chief Justice preside over any presidential impeachments (the Vice-President presided over all others), and 3) that a conviction verdict have a minimum of 2/3 vote.

Since 1776, individual state constitutions had included an impeachment process for state officials, and Antifederalists in various states questioned whether state constitutions might be undermined.  Among them was Luther Martin, who ironically later opposed Jeffersonian-Republicans by serving as Justice Samuel Chase’s legal defense during an 1805, national impeachment case.  Other Antifederalists genuinely worried that outside political influence during the impeachment process might affect the Senators’ votes.  In North Carolina, Joseph Taylor and Timothy Bloodworth worried that the House might one day impeach state officials.  Edenton’s James Iredell, one of the first justices on the U.S. Supreme Court, dismissed this argument by pointing out that the constitutional language was clear: only national officials could be impeached by the House of Representatives and possibly convicted by the Senate.

Alexander Hamilton was fully aware of such arguments and put forth a cogent defense of the Senate’s impeachment power in Federalist 65.

One major question that Hamilton answered is why the Senate is given the power to try impeachment cases.  Somewhat agreeing with Antifederalists, Hamilton admitted that partisanship or “political factions” could trump demonstrations of guilt and truth during impeachment trials.  It was possible that reelection concerns and constituents would indeed play a larger role in the impeachment voting process than a genuine search for truth. But that’s why, Hamilton pointed out, the Senate–not the House of Representatives–was given the power.

Before the 17th Amendment’s passage in 1913, state legislatures elected national senators for their state, so Senators were not concerned with winning the popular vote.  Senators were considered in Hamilton’s era, as legal scholar Michael J. Gerhardt writes, “better educated, more virtuous, and more high-minded . . . and thus uniquely able to decide responsibly the most difficult of political questions.”  Elected by state legislative bodies, Senators were considered by Hamilton to be impartial and “sufficiently dignified” to perform the task. And to emphasize the seriousness of the impeachment and ensure a genuine search for truth, these virtuous men were required to take an oath or affirmation (affirmations were allowed so that Quakers, who were conscientiously scrupulous of taking oaths, might not be excluded).

Hamilton considered the Senate preferable to the Supreme Court, too.  For one, impeachment was serious business: a conviction could doom an official’s honor.  Such a decision, Hamilton reasoned, should not be left to a “small number of persons” but to serious deliberation among the most virtuous Americans.  Moreover, the Court should not preside over two cases.  After being stripped of emoluments, the convicted might face the same—yet now predisposed–judges in another trial.  Judges inevitably influenced juries, the New York lawyer also stressed.  Some Constitution critics had suggested uniting the Supreme Court and the Senate during impeachment trials; Hamilton argued that might still lead to an unfair, double prosecution.

The Senate is also preferable to charging people “wholly distinct from the other departments of government” to preside over impeachment trials, Hamilton writes.  That option would increase government size and possibly require permanent positions; either way it would be too costly.  It also would slow down the impeachment process and thereby give the guilty extra time to obfuscate the truth.  Furthermore, Hamilton regretted to point out, a delay might give House members time to influence the decision.

Revealing the popularity and strength of Antifederalist arguments in certain states, Hamilton urged readers to consider the Constitution in its entirety and to avoid letting perfection be the enemy of the good.  The Constitution should not be rejected strictly for a small number of problems, Hamilton argued: [Antifederalists] “ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.”  The search for perfection in government, Hamilton warned in Federalist 65, can lead to anarchy.

Tuesday, July 27th, 2010

Troy Kickler, Ph.D., is Founding Director of the North Carolina History Project.

 

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Federalist No. 68 – The Mode of Electing the President, From the New York Packet (Hamilton)

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Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?

The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).

The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.

The Framers faced several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than a vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they meet in separate states at the same time. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

Though the constitutional shell remains, much of the system operates differently than the Framers hoped. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.

At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.

Friday, July 30th, 2010

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

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