FReeper Book Club: The Debate over the Constitution, Federalist #63

The earnest professor of history analyzes the Senate with respect to its predecessors in ancient history and defines the case for a body less tempted to precipitous action than the House.

² A fifth desideratum illustrating the utility of a senate is the want of a due sense of national character.

³ Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.

⁴ An attention to the judgment of other nations is important to every government for two reasons: the one is that independently of the merits of any particular plan or measure, it is desirable on various accounts that it should appear to other nations as the offspring of a wise and honorable policy; the second is that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.

⁵ What has not America lost by her want of character with foreign nations, and how many errors and follies would she not have avoided if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiased part of mankind?

⁶ Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body.

⁷ It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual or in an assembly so durably invested with public trust that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community.

⁸ The half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that state by arguments drawn from the light in which such measures would be viewed by foreign nations or even by the sister states, [while] it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring.

⁹ I add as a sixth defect the want in some important cases of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility.

¹¹ It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.

¹² Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power of which a ready and proper judgment can be formed by the constituents.

¹³ The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well chosen and well connected measures which have a gradual and perhaps unobserved operation.

¹⁴ The importance of the latter description to the collective and permanent welfare of every country needs no explanation.

¹⁵ And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years.

¹⁶ Nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years.

¹⁷ It is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached and palpable operation on its constituents.

¹⁸ The proper remedy for this defect must be an additional body in the legislative department which, having sufficient permanency to provide for such objects as require a continued attention and a train of measures, may be justly and effectually answerable for the attainment of those objects.

¹⁹ Thus far I have considered the circumstances which point out the necessity of a well constructed senate only as they relate to the representatives of the people.

²⁰ To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.

²¹ As the cool and deliberate sense of the community ought in all governments, and actually will in all free governments, ultimately prevail over the views of its rulers, so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.

²² In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens in order to check the misguided career and to suspend the blow meditated by the people against themselves until reason, justice and truth can regain their authority over the public mind?

²³ What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?

²⁴ Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

²⁵ It may be suggested that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions or to the danger of combining in pursuit of unjust measures.

²⁷ I have on the contrary endeavored in a former paper to show that it is one of the principal recommendations of a confederated republic.

²⁸ At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions.

²⁹ It may even be remarked that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconvenience of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them.

³⁰ It adds no small weight to all these considerations to recollect that history informs us of no long-lived republic which had not a senate.

³¹ Sparta, Rome and Carthage are in fact the only states to whom that character can be applied.

³⁴ Circumstantial evidence makes it probable that it was not different in this particular from the two others.

³⁵ It is at least certain that it had some quality or other which rendered it an anchor against popular fluctuations, and that a smaller council, drawn out of the Senate, was appointed not only for life, but filled up vacancies itself.

³⁶ These examples, though as unfit for the imitation as they are repugnant to the genius of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty.

³⁷ I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern, and which render extreme circumspection necessary in reasoning from the one case to the other.

³⁸ But after allowing due weight to this consideration, it may still be maintained that there are many points of similitude which render these examples not unworthy of our attention.

³⁹ Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people and to the people themselves.

⁴⁰ There are others peculiar to the former which require the control of such an institution.

⁴¹ The people can never wilfully betray their own interest, but they may possibly be betrayed by the representatives of the people, and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men than where the concurrence of separate and dissimilar bodies is required in every public act.

⁴² The difference most relied on between the American and other republics consists in the principle of representation, which is the pivot on which the former move and which is supposed to have been unknown to the latter, or at least to the ancient part of them.

⁴³ The use which has been made of this difference in reasoning contained in former papers will have shown that I am disposed neither to deny its existence nor to undervalue its importance.

⁴⁴ I feel the less restraint, therefore, in observing that the position concerning the ignorance of the ancient governments on the subject of representation is by no means precisely true in the latitude commonly given to it.

⁴⁵ Without entering into a disquisition which here would be misplaced, I will refer to a few known facts in support of what I advance.

⁴⁶ In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people and representing the people in their executive capacity.

⁴⁷ Prior to the reform of Solon, Athens was governed by nine archons, annually elected by the people at large.

⁴⁸ The degree of power delegated to them seems to be left in great obscurity.

⁴⁹ Subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually elected by the people and partially representing them in their legislative capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people.

⁵⁰ The Senate of Carthage also, whatever might be its power or the duration of its appointment, appears to have been elective by the suffrages of the people.

⁵¹ Similar instances might be traced in most, if not all, the popular governments of antiquity.

⁵² Lastly, in Sparta we meet with the ephori and in Rome with the tribunes, two bodies small indeed in numbers, but annually elected by the whole body of the people and considered as the representatives of the people, almost in their plenipotentiary capacity.

⁵³ The cosmi of Crete were also annually elected by the people and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only: that in the election of that representative body the right of suffrage was communicated to a part only of the people.

⁵⁴ From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions.

⁵⁵ The true distinction between these and the American governments lies in the total exclusion of the people in their collective capacity from any share in the latter, and not in the total exclusion of the representatives of the people from the administration of the former.

⁵⁶ The distinction, however thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States.

⁵⁷ But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage of an extensive territory.

⁵⁸ For it cannot be believed that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece.

⁵⁹ In answer to all these arguments, suggested by reason, illustrated by examples and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating that a senate appointed not immediately by the people and for the term of six years must gradually acquire a dangerous pre-eminence in the government and finally transform it into a tyrannical aristocracy.

⁶⁰ To this general answer, the general reply ought to be sufficient that liberty may be endangered by the abuses of liberty as well as by the abuses of power, that there are numerous instances of the former as well as of the latter, and that the former, rather than the latter, are apparently most to be apprehended by the United States.

⁶² Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself, must next corrupt the state legislatures, must then corrupt the House of Representatives, and must finally corrupt the people at large.

⁶³ It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny.

⁶⁴ Without corrupting the state legislatures, it cannot prosecute the attempt because the periodical change of members would otherwise regenerate the whole body.

⁶⁵ Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt, and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order.

⁶⁶ Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition through all these obstructions?

⁶⁷ If reason condemns the suspicion, the same sentence is pronounced by experience.

⁶⁹ The Senate of that state is elected, as the federal Senate will be, indirectly by the people and for a term less by one year only than the federal Senate.

⁷⁰ It is distinguished also by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and at the same time is not under the control of any such rotation as is provided for the federal Senate.

⁷¹ There are some other lesser distinctions which would expose the former to colorable objections that do not lie against the latter.

⁷² If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the senate of Maryland, but no such symptoms have appeared.

⁷³ On the contrary, the jealousies, at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment, and the Maryland Constitution is daily deriving from the salutary operation of this part of it a reputation in which it will probably not be rivaled by that of any state in the Union.

⁷⁴ But if anything could silence the jealousies on this subject, it ought to be the British example.

⁷⁵ The Senate there, instead of being elected for a term of six years and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles.

⁷⁶ The House of Representatives, instead of being elected for two years and by the whole body of the people, is elected for seven years and in very great proportion by a very small proportion of the people.

⁷⁷ Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States.

⁷⁸ Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives, and that it no sooner lost the support of the Monarch than it was actually crushed by the weight of the popular branch.

⁷⁹ As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed.

⁸⁰ In Sparta, the ephori, the annual representatives of the people, were found an overmatch for the Senate for life, continually gained on its authority and finally drew all power into their own hands.

⁸¹ The tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the Senate for life, and in the end gained the most complete triumph over it.

⁸² The fact is the more remarkable as unanimity was required in every act of the tribunes, even after their number was augmented to ten.

⁸³ It proves the irresistible force possessed by that branch of a free government which has the people on its side.

⁸⁴ To these examples might be added that of Carthage, whose Senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had at the commencement of the second Punic War lost almost the whole of its original portion.

⁸⁵ Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself by gradual usurpations into an independent and aristocratic body, we are warranted in believing that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles.

⁸⁶ Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy and attachment to the public good as will divide with that branch of the legislature the affections and support of the entire body of the people themselves.

Extending from Madison’s original analytical plan is the overarching issue of why the country should have a senate at all, that is, depart from the classic unicameral plan. He is aware that the casual reader might well have emerged from his analysis of the House of Representatives with the impression that the frequently elected members of the latter were intended to be the legislative workhorses, and the former merely a rein-holding figurehead.

That reader might have been close in that appraisal. Madison has already pointed out that the more experienced senators would prove a brake on the runaway passions of the public and on badly formed legislation. Certain of those points will occur again in this essay. It is the role of figurehead that he first addresses, a face of the government turned toward the outside world. For a world already accustomed to the erratic tendencies and undependability of the present government, particularly with respect to the payment of debt, an image of stability would be a prudent and comforting thing. For foreign opinion did matter.

In short, the credit holders would be less nervous with what they thought was a firm hand on the reins, and that their own opinions might be more objective than those of Americans involved in the close order combat of political controversy. It is entirely likely that he was envisioning the French government on both accounts – Louis’ deluge was yet a year away – as well as his favorite paragon of stability, the British. With the latter, Madison’s country would be at open war in 24 years due largely to overly aggressive mercantilism; with the former the most significant land purchase in American history would be concluded in fifteen – in the person of a military dictator. In this light it may be forgivable to suspect that Madison may have overestimated the value of the opinion of at least the currently existing foreign governments.

But a sense of “national character” could serve as a domestic control as well, especially against the passions of the moment, and it was more likely to be possessed by a smaller, more stable body than the House (6). Madison makes a curious aside that requires some explanation.

“Iniquitous measures”? “Misguided people”? What on earth can this mean? What activities in the state of Rhode Island served to evoke such disdain from Madison?

They were, in fact, activities in which Madison had a direct interest, activities whose result was in the refusal of the sitting government of that state to send representatives to the Constitutional Convention in 1787, and that continued to harass the ratification process. Rhode Island was, at the moment, under the rural-based populist administration of South Kingstown’s Jonathan Hazard, brought to power in the same wave of smallholder debt and currency shortage that had propelled Shays’ Rebellion and that had sent Hamilton scurrying from an angry mob in Philadelphia. These were rightly suspicious of the sort of centralization of government that had given them a country and taken their land and fortunes, and could see nothing in the proposed federal government that would do anything but worsen that tendency. That faction’s position was, to be sure, in favor of independence and state sovereignty; it also represented a direct threat to holders of existing debt to devalue those debts by deliberate inflation through the issuance of paper currency. It was between those two poles of political interest that the matter of the Constitution was being fought as Madison wrote.

The rural-dominated Rhode Island Assembly rejected no fewer than eleven attempts by the city-based merchant political parties to convene a ratification convention until at last the latter had had enough. The newspapers railed against both the legal and the extralegal measures placed in the path of ratification, and the city of Providence actually threatened to secede from its own state. The matter was finally brought to a head somewhat more than eight months after Washington’s inauguration, and even then it was a close thing. Rhode Island, the first colony to rebel from the British, became the last to ratify the Constitution in 1790.

Madison’s case here is that a state senate displaying the characteristics he hoped for in the national Senate would have put a stop to this nonsense, driven as it was by a legislature whose members were elected every six months, his model for an ephemeral and fickle House. It is a wonderful bit of rhetoric with not a shred of supporting evidence. But it provides a perfect counterpoint to Madison’s next point.

⁹ I add as a sixth defect the want in some important cases of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility.

Inasmuch as it is a direct contradiction of his previous case, the term “paradoxical” seems fully justified. Madison’s case is that the quality of a laudable responsiveness due to frequency of election may actually produce a deficit in terms of responsibility, caused by no individual member’s presence during a chain of decisions composing a more lengthy – and more typical – political policy (15).

It is a middle position, in fact; one for which Madison now offers historical justification. Once again he represents the Senate as a brake on runaway passions that have historically proven to the disadvantage of the populaces holding them. He cites the classic case of Athens during and after the Peloponnesian War.

²³ What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?

²⁴ Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

The reference, of course, is to Socrates, himself as much a victim of political alignment – he was a close friend of the Thirty Tyrants placed in power by the victorious Spartans – as to turbulent and temporary passions. He was far from the only example, however, as the outcome of that was also arguably a result of democratic inconstancy in the cases of Nicias and Alcibiades.

Part of the problem was the size of the area governed by the Greek city states (58), and the limitations on direct democracy that have lately been hypothetically related to the size of a crowd capable of being addressed by the unamplified human voice. The new country would not suffer from this deficiency, says Madison (29), although larger countries such as America might well suffer from inertia rather than vacillation.

It is a prescient warning of the possible effects of modern communications technology and propaganda technique on the masses. Madison returns to history for further examples of the presence of a body similar to the Senate. No “long-lived republic”, he states, was without one (30): Greece, especially Athens (47), in two forms, prior to and subsequent to the reforms of Solon; Carthage, the specifics of whose elected Senate are lost to time (50); Sparta, whose ephori were, technically, elected, albeit only from certain families; Rome during the Republic (52); lastly Crete, whose government may have helped inspire the form of the others, with one distinction.

⁵³ …with this difference only: that in the election of that representative body the right of suffrage was communicated to a part only of the people.

In fact, in none of those societies was the right of suffrage communicated to the people as a whole, nor would it be under the proposed Constitution. Madison speaks quite frankly of “the exclusion of the people in their collective capacity” from direct participation in the government (55), a point which must raise the eyebrows of modern populists, but a defense of the principle of representation that the ancients knew perfectly well.

Would this new Senate exhibit a tendency toward a “tyrannical aristocracy”? Madison’s answer is philosophical.

⁶⁰ …liberty may be endangered by the abuses of liberty as well as by the abuses of power, that there are numerous instances of the former as well as of the latter, and that the former, rather than the latter, are apparently most to be apprehended by the United States.

In other words, the country as Madison saw it was more likely to be anarchical than oligarchic. There were barriers as well in the way the Senate would come to be. It must first, he argues, corrupt itself, then the state legislatures who name its members, and lastly the electorate who elect the state legislatures (64, 65). It is a model highly resistant to immediate corruption, claims Madison, and not merely as a function of theory. Such tendencies are not evident in the government of the state of Maryland (72, 73), which contains a similar structure, nor in the British government (74-78), where the tendency is and would remain the opposite – a smaller aristocratic body whose prerogatives were even at the time on the wane at the hands of the popularly elected body.

In a nice bit of rhetorical symmetry, Madison returns to the examples of the ancient for corroborative trends: Sparta, where the representatives of at least those few who actually could vote for them eventually “drew all power into their own hands”; Carthage, whose Senate would be nearly disempowered before the fall; Rome, where the Senate would lose its power gradually to the tribunes, the elected representatives of the people.

Lastly, the check on such ambitions on the part of the Senate in American government would be the House, the popularly elected body opposed to the supposedly aristocratic Senate (86). The cynic might note that Madison’s Roman example stopped before the disempowerment of the Senate was succeeded by the mob under Sulla and the aristocracy under Marius, delivering Rome to the Caesars. A good historian knows when to stop.

+A good historian knows when to stop.

Funny.

Applying historical lessons is applying analogical lessons and all analogies fail at some point.

+Madison makes an issue of the compliance of the new nation with world opinion. For a young nation not powerful enough to challenge the great established powers of the world, this is prudent policy. How would Madison have reacted to America the hyperpower, and would he counsel a similar compliance?

My guess is that he would have wanted America to ‘fit it’ and adjust to circumstances. I say this because at the heart of the constitution is the belief in natural law, i.e. a law of being that was of God’s design and that God, except when man disturbs the natural order, bends circumstances in His direction. This, I think, is at the heart of American sensibility regarding foreign policy. We don’t like tyrants but we are not very interested in establishing our order on the world.

+Would he have considered that America take the laws of other nations into account in interpreting the Constitution?

Account may be too strong a word. Try “consideration” and I would agree. There’s nothing wrong with considering a reasonable idea. He certainly in this essay draws upon the other societies for lessons and certainly has assimilated Montesquieu’s ideas.

+To what degree does the limited suffrage in ancient societies support or contradict his position? To what degree did the limited suffrage in the proposed Constitution – i.e. no vote for women or for slaves – add to, or subtract from, the strength of the society it built?

Let’s look at it this way. Power naturally flows to certain people. In general women, and certainly slaves, had little influence over important matters hence to have their opinion represented would have created a government that was at odds with those who naturally had power, men. In an ancient society, especially a trading society, influence goes to commercial people hence a society would be well constructed if those influential people decide issues together and have a peaceful means of enforcing their idea of what is fair.

+On the other hand though, people will naturally set up institutions that keep themselves at the center and stifle anyone who would want to operate outside their norms.

So I can understand one good reason and one bad reason for non-universal suffrage.

+Have aristocratic tendencies within the Senate been checked by the House, or have both succumbed to them?

Eh, one can make both cases. It’s hard for me to say when the executive branch has gained so much power to make laws (regulations). Our Representatives certainly ensure they are always players, whether they win or lose elections. That makes them an entity unto themselves and that is a characteristic of aristocracy.

+What might have happened had women been granted suffrage in Greece, Rome, or Carthage?

A government at odds with those who naturally had power.

+Can the principles of representative government be extended to granting the vote to those who are citizens but do not contribute to their country otherwise? To those who contribute to the country but who are not citizens? To those who are in neither category?

Yes but. But we should always be aware of the converse of the idea that power naturally flows to influential people. Say there is a group of people who naturally will not have much influence, say crack addicts. Crack addicts would use their power to create an order that is at odds with those who naturally have influence in society. That government will break down as those who are the glue of society have to deal with the power of those who tear it apart.

A BTT for the evening crowd.

I've been giving the suffrage question some consideration. Aristophanes wrote Lysistrata around a similar question, and it is a major tenet of radical feminism that were women in charge there would be no wars, a position that has to ignore the vigorous martial administrations of Elizabeth I, Catherine the Great, Indira Ghandi, Golda Meir, Maria Theresa, and the beloved Lady Thatcher to name but a few examples. And since the strange experiment of the 19th Amendment demographers have found significant statistical differences in the way women and men vote on any particular occasion, but broadly speaking they vote very much alike.

For the Greeks, of course, a suit of armor and the willingness to poke men of opposing cities with a spear was the requirement for a voice in government. For the Spartans and the Romans it was birth, although for the Romans citizenship could be earned after the path of the shield and gladius. For the American voter it isn't really earned at all for most unless you count the fantastic hardship of registering. You don't even have to take the trouble to drive to the polls anymore. In my view it has cheapened the act to the point of the momentary passion of the mob that Hamilton and Madison feared.

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.