Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered
From the New York Packet.
Tuesday, March 11, 1788.

Author: Alexander Hamilton

To the People of the State of New York:

A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter.

The FIRST of these objections is, 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. The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.

It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York? [1]

A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience?

If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the considerations stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings.

But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government.

But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate.

A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers.

If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments.

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty?

This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.

The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.

So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.


1. In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the trial of impeachments.

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

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

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

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

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

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

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

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

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

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

With this outline in hand, consider Federalist #62.

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

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

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

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

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

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

Thursday, July 22nd, 2010

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


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

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

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

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

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

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

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


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

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.


In Federalist No. 66, Hamilton continues his defense of the Senate’s role as court of trial in the impeachment process.  The anti-federalists believed this role concentrated too much power in the hands of the Senate.  As we work our way through the Federalist Papers, it is fascinating to have the benefit of hindsight to explore how the structure built by the framers has played out.

In my personal journey through our 90 in 90, History Holds the Key to the Future, I have learned just how much I did not know!!

I have discovered the Senate.Gov website is a marvelous resource and repository of history. I consulted it for a list of Senate impeachment trials, and found this link:

The above link contains an illuminating narrative of the Senate’s role in impeachment trials, and the major controversies that have arisen over the years, including the definition of “high crimes and misdemeanors.”

In 1960 U.S. Rep Gerald Ford famously stated, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

The link also contains the below listing of Senate Impeachment Trials.  Since 1789, the Senate has conducted 19 impeachment proceedings, with an even split of 7 acquittals and 7 convictions.  Three cases were dismissed.

Complete List of Senate Impeachment Trials
To date, the Senate has conducted formal impeachment proceedings 19 times, resulting in 7 acquittals, 7 convictions, and 3 dismissals.

William Blount, Senator

Date of Final Senate Action: January 11, 1799

Result:  expelled, charges dismissed


John Pickering, Judge

Date of Final Senate Action: March 12, 1804

Result: guilty, removed from office


Samuel Chase, Justice

Date of Final Senate Action:  March 1, 1805

Result:  not guilty


James H. Peck, Judge

Date of Final Senate Action:  January 31, 1831

Result:  not guilty


West H. Humphreys, Judge

Date of Final Senate Action:  June 26, 1862

Result:  guilty


Andrew Johnson, President

Date of Final Senate Action:  May 16/26, 1868

Result:  not guilty


Mark H. Delahay, Judge

Date of Final Senate Action:  no action

Result:  resigned


William Belknap, Secretary of War

Date of Final Senate Action:  August 1, 1876

Result:  not guilty


Charles Swayne, Judge

Date of Final Senate Action:  February 27, 1905

Result:  not guilty


Robert Archbald, Judge

Date of Final Senate Action:  January 13, 1913

Result:  guilty, removed


George W. English, Judge

Date of Final Senate Action:  December 13, 1926

Result: resigned, charges dismissed


Harold Louderback, Judge

Date of Final Senate Action:  May 24, 1933

Result:  not guilty


Halsted Ritter, Judge

Date of Final Senate Action:  April 17, 1936

Result:  guilty, removed from office


Harry E. Claiborne, Judge

Date of Final Senate Action: October 9, 1986

Result:  guilty, removed from office


Alcee Hastings, Judge

Date of Final Senate Action:  October 20, 1989

Result:  guilty, removed from office


Walter Nixon, Judge

Date of Final Senate Action:  November 3, 1989

Result:  guilty, removed from office


William J. Clinton, President

Date of Final Senate Action:  February 12, 1999

Result:  not guilty


Samuel B. Kent, Judge

Date of Final Senate Action: July 22, 2009

Result: resigned, case dismissed


G. Thomas Porteous, Jr., Judge

Date of Final Senate Action: case pending

I hope you all are learning as much as I am about the history of our country, the founding principles upon which our country is based and how these principles were applied by the framers in creating the structure of our Republic, through the United States Constitution!!

Thank you for joining us!!

Good night and God Bless,

Cathy Gillespie

Wednesday, July 28th, 2010

Howdy from Texas.

To those of us who worry that the basic structure of checks and balances within our government have been tampered with, such as with the 17th amendment and may continue to be tampered with in the future, such as with the rumblings of the removal of the electoral college by circumventing the Constitution and doing it through the State Legislatures, I quote Abigail Adams, my favorite foremother in a letter that she wrote to her young son:

“These are the times in which a genius would wish to live. It is not in the still calm of life, or in the repose of a pacific station, that great characters are formed. The habits of a vigorous mind are formed in contending with difficulties. Great necessities call out great virtues. When a mind is raised, and animated by the scenes that engage the heart, then those qualities which would otherwise remain dormant, wake into life and form the character of  the hero and the statesman.”

Inspire your children with this beautifully insightful passage about life, bravery, duty and patriotism. Share it with your friends and family.

I thank you for joining us. I thank Horace Cooper for his constant dedication and I thank Cathy Gillespie for being the best friend a person could ever dream of having and for being absolutely mesmerizingly devoted to Constituting America.

God Bless,

Janine Turner

Wednesday, July 28th, 2010

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


Federalist No. 76 examines the appointing power of the Executive Branch.  One of our blog commenters, Jimmy Green, summed up this paper well today:

“To keep the Executive somewhat honest the legislative branch must consent on appointments.”

This same subject was discussed in Federalist 66, in the context of powers of the Senate:

“It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.”

Publius is saying that the Senate’s role in the Presidential appointment process is to decide if the President’s nominee is fit for the position nominated, on a merit basis, i.e. is the person qualified to serve in the position for which he or she is nominated?

How is this relevant today? With our newest Supreme Court Justice Elena Kagan’s confirmation in the news, it’s easy to answer that question!

Historically, there have been two views regarding the role of the Senate in the Presidential nomination process of Supreme Court Justices. The two quotes below are excellent examples of each view:

Senator Orrin Hatch stated in 1993:

“If a nominee is experienced in the law, highly intelligent, of good character and temperament, and — most important — gives clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government, the mere fact that I might have selected a different nominee will not lead me to oppose the President’s nominee.”


Senator Barak Obama stated in 2006:

“There’s been a lot of discussion in the country about how the Senate should approach the confirmation process. There’s some who believe that the President, having won the election, should have complete authority to appoint the nominee, and that the Senate should only examine whether or not the Justice is intellectually capable and is nice to his wife, or she is nice to her husband. That, once you get beyond issues of intellect and personal character, then there shouldn’t be further question as to whether the Judge should be confirmed. I disagree with the view.  I believe that the Constitution calls for the Senate to advise and consent, that, meaningful advice and consent includes an examination of a judge’s philosophy, ideology, and record.”

Which of the above views have prevailed over the past few years? Examining the partisan breakdown of recent Supreme Court nominations provides at least a partial answer to that question.

President Clinton’s Supreme Court nominee, Ruth Bader Ginsburg, was confirmed in 1993 by a vote of 96-3, supported by 41 of 44 Senate Republicans, 93%.

President Clinton’s Supreme Court nominee, Stephen Breyer, was confirmed in 1994 by a vote of 87-9, supported by 33 of 42 Senate Republicans, 78%.

President Bush’s Supreme Court nominee, John Roberts, was confirmed in 2005 by a vote of 78-22, supported by 22 out of 44 Democrats, 50%.

President Bush’s Supreme Court nominee, Samuel Alito, was confirmed in 2006 by a vote or 58-42, supported by 4 out of 44 Democrats, 9%.  One Senate Republican voted against Alito.

Were Justice Roberts and Justice Alito less qualified than Justice Breyer and Justice Ginsberg, or was an ideological standard applied by the Senators who chose to vote against Justice Roberts’ and Alito’s nominations?

President Obama’s Supreme Court nominee, Sonia Sotomayor, was confirmed in 2009 by a vote of 68-31, supported by 9 out of 40 Republicans, 22%.

Last week President Obama’s Supreme Court nominee, Elena Kagain, was confirmed by a vote of 63-37, supported by 5 out of 41 Republicans, 12%.  One Democrat voted against Kagan.

This weblink: provides an interesting look at our country’s history of Supreme Court nominations.  Scrolling through these votes, a more partisan voting trend has emerged in very recent years.  While Judge Bork was an anomaly, three Justices in the Reagan years were confirmed unanimously: Scalia, O’Connor and Kennedy, with Kennedy being the last Justice to be confirmed unanimously, in 1987.  The attitude of the Senate regarding their role in the appointments process seems to have shifted into partisanship over the last 20+years.

What is the Senate’s proper role in the Presidential Appointment process?

Publius answers that question this way:

“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”

Partisanship in the nomination process is difficult to dial back once allowed to seep in.  Is it in our Nation’s best interest for the Senate to adopt the attitude articulated by Senator Hatch in 1993 or the views articulated by President Obama in 2006?

I believe the founders intended the Senate to advise and consent based on their assessment of a nominee’s qualifications more than ideology. However, unless both parties can show evidence of dropping the partisan, ideological criteria for evaluating the President’s nominees – any President’s nominees – it is certainly not in the interest of one party to evaluate nominees based on qualifications while the other party uses an ideological measuring stick.

“We the people,” must educate ourselves regarding our founders’ intentions, formulate our opinion, and make our voice heard through our vote.   As Janine Turner, my good friend and Constituting America founder and co-chair likes to say, “Your vote is your voice.” Use it!

Good night and God Bless,

Cathy Gillespie
Wednesday, August 11th, 2010