Posted on 11/15/2010 6:45:07 AM PST by Publius
In a tag-team operation, Madison and Hamilton discuss different aspects of the Senate, and even John Jay returns to examine the Senate’s role in treaties, something in which he was the national expert. First, Madison lays out the groundwork.
1 To the People of the State of New York:
2 Having examined the constitution of the House of Representatives and answered such of the objections against it as seemed to merit notice, I enter next on the examination of the Senate.
3 The heads into which this member of the government may be considered are:
4 The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship.
5 A senator must be thirty years of age at least, as a representative must be twenty-five.
6 And the former must have been a citizen nine years, as seven years are required for the latter.
7 The propriety of these distinctions is explained by the nature of the senatorial trust which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages, and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.
8 The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them which might create a channel for foreign influence on the national councils.
9 It is equally unnecessary to dilate on the appointment of senators by the state legislatures.
10 Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the Convention is probably the most congenial with the public opinion.
11 It is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the federal government as must secure the authority of the former and may form a convenient link between the two systems.
12 The equality of representation in the Senate is another point which, being evidently the result of compromise between the opposite pretensions of the large and the small states, does not call for much discussion.
13 If indeed it be right that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign states bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation.
14 But it is superfluous to try by the standard of theory a part of the Constitution which is allowed on all hands to be the result, not of theory, but “of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.”
15 A common government with powers equal to its objects is called for by the voice and still more loudly by the political situation of America.
16 A government founded on principles more consonant to the wishes of the larger states is not likely to be obtained from the smaller states.
17 The only option then for the former lies between the proposed government and a government still more objectionable.
18 Under this alternative, the advice of prudence must be to embrace the lesser evil, and instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
19 In this spirit it may be remarked that the equal vote allowed to each state is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty.
20 So far the equality ought to be no less acceptable to the large than to the small states since they are not less solicitous to guard by every possible expedient against an improper consolidation of the states into one simple republic.
21 Another advantage accruing from this ingredient in the constitution of the Senate is the additional impediment it must prove against improper acts of legislation.
22 No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the states.
23 It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial, and that the peculiar defense which it involves in favor of the smaller states would be more rational if any interests common to them, and distinct from those of the other states, would otherwise be exposed to peculiar danger.
24 But as the larger states will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser states, and as the faculty and excess of lawmaking seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
25 The number of senators and the duration of their appointment come next to be considered.
26 In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate, and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.
27 First: It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust.
28 In this point of view, a senate as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government.
29 It doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.
30 This is a precaution founded on such clear principles and now so well understood in the United States that it would be more than superfluous to enlarge on it.
31 I will barely remark that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures and with the genuine principles of republican government.
32 Secondly: The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.
33 Examples on this subject might be cited without number and from proceedings within the United States as well as from the history of other nations.
34 But a position that will not be contradicted need not be proved.
35 All that need be remarked is that a body which is to correct this infirmity ought itself to be free from it and consequently ought to be less numerous.
36 It ought, moreover, to possess great firmness and consequently ought to hold its authority by a tenure of considerable duration.
37 Thirdly: Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation.
38 It is not possible that an assembly of men called, for the most part, from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust.
39 It may be affirmed on the best grounds that no small share of the present embarrassments of America is to be charged on the blunders of our governments, and that these have proceeded from the heads rather than the hearts of most of the authors of them.
40 What indeed are all the repealing, explaining and amending laws which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom, so many impeachments exhibited by each succeeding against each preceding session, so many admonitions to the people of the value of those aids which may be expected from a well-constituted senate?
41 A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.
42 Some governments are deficient in both these qualities; most governments are deficient in the first.
43 I scruple not to assert that in American governments too little attention has been paid to the last.
44 The federal Constitution avoids this error, and what merits particular notice, it provides for the last in a mode which increases the security for the first.
45 Fourthly: The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out in the strongest manner the necessity of some stable institution in the government.
46 Every new election in the states is found to change one half of the representatives.
47 From this change of men must proceed a change of opinions, and from a change of opinions, a change of measures.
48 But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.
49 The remark is verified in private life and becomes more just, as well as more important, in national transactions.
50 To trace the mischievous effects of a mutable government would fill a volume.
51 I will hint a few only, each of which will be perceived to be a source of innumerable others.
52 In the first place, it forfeits the respect and confidence of other nations and all the advantages connected with national character.
53 An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly.
54 His more friendly neighbors may pity him, but all will decline to connect their fortunes with his, and not a few will seize the opportunity of making their fortunes out of his.
55 One nation is to another what one individual is to another, with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other.
56 Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors.
57 But the best instruction on this subject is unhappily conveyed to America by the example of her own situation.
58 She finds that she is held in no respect by her friends, that she is the derision of her enemies, and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.
59 The internal effects of a mutable policy are still more calamitous.
60 It poisons the blessing of liberty itself.
61 It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood, if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.
62 Law is defined to be a rule of action, but how can that be a rule which is little known and less fixed?
63 Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising and the moneyed few over the industrious and uniformed mass of the people.
64 Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change and can trace its consequences – a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow citizens.
65 This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
66 In another point of view, great injury results from an unstable government.
67 The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements.
68 What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?
69 What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?
70 In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
71 But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people towards a political system which betrays so many marks of infirmity and disappoints so many of their flattering hopes.
72 No government, any more than an individual, will long be respected without being truly respectable, nor be truly respectable without possessing a certain portion of order and stability.
Madison’s Critique
After no fewer than seven papers on the topic of the House of Representatives, the reader might be justified in a bit of trepidation as the topic of the Senate arrives. It is, however, to be dealt with in a mere five essays, the bulk of the analysis in two. Once again, Madison provides his analytical plan at the outset and even manages to dispose of four of the five topics listed therein in the course of a single essay. Whether this is a result of less controversy surrounding the makeup and powers of the Senate, or a plea for concision from a long-suffering readership, is impossible to tell at this distance in time.
The analytical plan is commendably concise. Beside the powers to be placed in the hands of the Senate, which will be addressed in the second essay, Madison considers the appointment of the Senate by the state legislatures and the reason that each state is to have two senators regardless of population, as well as the administrative issues of qualification for office and how many senators will compose the total.
The minimum age of 30 to qualify as a candidate for the Senate strikes the modern reader as less restrictive than it did when the average life expectancy was roughly 36 years, as it was at the close of the 18th Century. Nevertheless, the latter figure is a little misleading, skewed by child mortality rates twenty times what they are in the early 21st Century. The standard was exceeded by all the principals of the debate: John Adams lived to 91, Madison to 85, John Jay to 84, George Clinton to 73, George Washington and George Mason to 67, Robert Yates and Patrick Henry to 63, and had Hamilton not decided to engage his former law partner Aaron Burr in a duel, he might well have seen his 50th birthday.
In the context of the time, however, one’s life was considered fairly well established by the age of 30. Also to be considered within that context is the requirement that a senator be a citizen for a minimum of nine years (6), a requirement intended to ensure that the candidate be “thoroughly weaned from the prepossessions and habits incident to foreign birth and education” (7). As so much else in the proposed Constitution, it is a compromise aimed at the controlled inclusion of immigrants.
8 …a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them which might create a channel for foreign influence on the national councils.
With the empowerment of the state legislatures to name the senators Madison deals in three short sentences. It is, very simply, considered the most popular alternative (10), both among the people at large and the state governments themselves (11), and is intended to forge a link between the latter and the federal government.
Another compromise, perhaps the most significant within the Constitution, is the “equality of representation in the Senate” (12), intended to guarantee that small states would not be politically inundated by the popular vote within the large ones. Here the reliance on Montesquieu or Sydney is nowhere to be found – it is a uniquely American solution for a uniquely American challenge. It is the product, “not of theory, but of a spirit of amity” (14), at least insofar as its intent to marry states and populations of dissimilar size and makeup. It is, as well, a recognition of state sovereignty (19). That, in turn, is a guard against the ebb and flow of popular political enthusiasms that was so to plague the coming French revolutionary government.
22 No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the states.
That might have the disadvantage of being too strict a control on legislation, but Madison does not seem to regard that as a likelihood, rather an advantage in the face of a tendency of legislatures in general to be overly eager to legislate.
24 …the faculty and excess of lawmaking seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
It is, in the light of history, a decidedly imperfect brake on the act of producing law, but it is possibly better than nothing. But Madison is not done with the topic – the proliferation of laws is, to him, a more serious matter than this brief treatment will suffice to address.
Before that, however, there is the topic of the number of senators and the duration of their appointment, and more broadly, the question of why a Senate at all? Here Madison makes four points.
38 It is not possible that an assembly of men called, for the most part, from pursuits of a private nature, continued in appointment for a short time…should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust.
40 What indeed are all the repealing, explaining and amending laws which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom…?
It is a lamentation that strikes the modern reader with a painful familiarity, and Madison is not done with the complaint. His epistle of 1788 to the New York newspapers could easily be printed in their successors without alteration some 222 years later.
61 It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood… or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.
Whether the Senate really has acted as a check on this tendency is highly debatable with two centuries’ hindsight, but that the tendency existed within American government even then is evidenced vividly by Madison’s exasperation. He closes the essay with a plea for constancy in policy within government – it offers credibility for the federal government not only in the eyes of foreign governments but in the eyes of its own people (72).
A discussion of the powers vested in the Senate will follow in the next essay.
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
12 Feb 1788, Federalist #53
12 Feb 1788, Federalist #54
14 Feb 1788, Brutus #12, Part 2
15 Feb 1788, Federalist #55
19 Feb 1788, Federalist #56
19 Feb 1788, Federalist #57
20 Feb 1788, Federalist #58
22 Feb 1788, Federalist #59
26 Feb 1788, Federalist #60
26 Feb 1788, Federalist #61
Unless one can show that the 17th amendment was ratified by every single state (it was not) then it is CLEARLY a violation of article five of the Constitution! (See emphasized portion above)
On the other hand I suppose one could be argued that since no State has any representation in Washington post 17th amendment it does not violate Article five because the representation is still equal. That argument fails however because it is quite clear that the founders intended that States have at least SOME suffrage!
Publius, I’d like to know, did the compromise that created the Senate precede the decision to have the states ratify rather than the people? If so, did the framers specifically discuss how difficult ratification would be if there were no equal state representation in the Senate? My belief was that equal representation in the Senate was inevitable once state ratification was decided upon but I’m not sure if I’ve got the timeline right.
Do you think Madison believed that the Senate, as it was defined, was the best solution or was he just arguing for the compromise believing that the National Government was better than the Articles of Confederation?
It is a lamentation that strikes the modern reader with a painful familiarity, and Madison is not done with the complaint. His epistle of 1788 to the New York newspapers could easily be printed in their successors without alteration some 222 years later.Wasn’t it Massachusetts in particular that had a horrible reputation for passing too many laws?
I kind of like this idea. The people hire the Senators and either they can be defeated in the next election or removed by the state legislature.
Not just yes but hell yes. I’ll make my case later.
Likewise, click on the link to Brutus #12, Part 1, and go to the end where there is an essay titled "The Opposing Constitutional Theologies".
These two essays attempt to put into perspective the thoughts of the Framers as to the impact of the two possible methods of ratification. It makes a big difference which method is chosen because it determines whether the Constitution is a treaty between states or a compact between the people of the states.
The issue of the Senate took a lot of time at the Convention with a great deal of to-ing and fro-ing before Roger Sherman's Connecticut Compromise created the system we have today. Decision in Philadelphia by the Colliers is the best book on the subject because the two Colliers follow the thread of the argument and telescope the timeline, thus permitting the reader to follow the flow of the argument as though it were all contiguous.
The original plan of Madison was for both Houses to be apportioned by population, which prompted enough rage from the smaller states that they threatened to walk out of the Convention. One of the reasons the debate was fractured over so much time was the need for cooling-off periods whenever the topic came up,
The Senate issue and the ratification issue were not directly connected, to my knowledge.
Absolutely! Witness the recent "Obamacare" debacle! Not only can they not be read and understood by the public the people voting on whether or not to pass them into law cannot read or understand them!
I rest my case!
As I am sure you are already aware that there is a long running debate (i.e. circular argument) about whether or not this is in fact true here on FR. In other words, there are those here who will argue forever, and despite any and all evidence to the contrary that you might present, that the ratification of the Constitution WAS by the people and not by the States. I am not one of those but you should be aware of their presence here.
This is critical to the concept of whether the Constitution is a treaty between states or a compact between the people of states. It is the key to the two competing constitutional theologies to which I pointed in an essay at the end of Brutus #12, Part 1. Go back and read that, and you'll see how important this issue became in the runup to the Civil War.
I am well aware of the history in play here but my conclusions differ from yours. I have endeavored to avoid any in depth discussion of this on these particular threads however and it is my considered opinion that we should keep it that way.
Make your case for retaining the 17th Amendment or repealing it.
For repeal (along with the 16th amendment), to wit:
Boxer, Biden, Franken, and all the rest who have an IQ of an ash tray. State legislatures did, and would again send intelligent people to the senate.
5.56mm
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.