FReeper Book Club: The Debate over the Constitution, Federalist #77

Hamilton addresses the subject of appointments by the President and concurrence by the Senate.

² It has been mentioned as one of the advantages to be expected from the cooperation of the Senate in the business of appointments that it would contribute to the stability of the administration.

³ The consent of that body would be necessary to displace as well as to appoint.

⁴ A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer of offices.

⁵ Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him by the apprehension that a discountenance of the Senate might frustrate the attempt and bring some degree of discredit upon himself.

⁶ Those who can best estimate the value of a steady administration will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

⁷ To this union of the Senate with the President in the article of appointments, it has in some cases been suggested that it would serve to give the President an undue influence over the Senate, and in others that it would have an opposite tendency, a strong proof that neither suggestion is true.

⁹ It amounts to this: the President would have an improper influence over the Senate because the Senate would have the power of restraining him.

¹¹ It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body than a mere power of nomination subject to their control.

¹² Let us take a view of the converse of the proposition: “the Senate would influence the Executive.”

¹³ As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer.

¹⁶ The power of influencing a person in the sense in which it is here used must imply a power of conferring a benefit upon him.

¹⁷ How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations?

¹⁸ If it be said they might sometimes gratify him by an acquiescence in a favorite choice when public motives might dictate a different conduct, I answer that the instances in which the President could be personally interested in the result would be too few to admit of his being materially affected by the compliance of the Senate.

¹⁹ The power which can originate the disposition of honors and emoluments is more likely to attract than to be attracted by the power which can merely obstruct their course.

²⁰ If by influencing the President be meant restraining him, this is precisely what must have been intended.

²¹ And it has been shown that the restraint would be salutary at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate.

²² The right of nomination would produce all the good of that of appointment and would in a great measure avoid its evils.

²³ Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this state, a decided preference must be given to the former.

²⁴ In that plan the power of nomination is unequivocally vested in the Executive.

²⁵ And as there would be a necessity for submitting each nomination to the judgment of an entire branch of the legislature, the circumstances attending an appointment from the mode of conducting it would naturally become matters of notoriety, and the public would be at no loss to determine what part had been performed by the different actors.

²⁶ The blame of a bad nomination would fall upon the President singly and absolutely.

²⁷ The censure of rejecting a good one would lie entirely at the door of the Senate, aggravated by the consideration of their having counteracted the good intentions of the Executive.

²⁸ If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.

²⁹ The reverse of all this characterizes the manner of appointment in this state.

³⁰ The council of appointment consists of from three to five persons, of whom the governor is always one.

³¹ This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them.

³² It is known that the governor claims the right of nomination upon the strength of some ambiguous expressions in the constitution, but it is not known to what extent or in what manner he exercises it, nor upon what occasions he is contradicted or opposed.

³³ The censure of a bad appointment on account of the uncertainty of its author and for want of a determinate object has neither poignancy nor duration.

³⁴ And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost.

³⁵ The most that the public can know is that the governor claims the right of nomination, that two out of the inconsiderable number of four men can too often be managed without much difficulty, that if some of the members of a particular council should happen to be of [a noncompliant] character it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient, and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made.

³⁶ Whether a governor of this state avails himself of the ascendant he must necessarily have in this delicate and important part of the administration to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture.

³⁷ Every mere council of appointment, however constituted, will be a conclave in which cabal and intrigue will have their full scope.

³⁸ Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination.

³⁹ And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places.

⁴⁰ The private attachments of one man might easily be satisfied, but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived.

⁴¹ If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent.

⁴² Such a council would also be more liable to Executive influence than the Senate because they would be fewer in number and would act less immediately under the public inspection.

⁴³ Such a council, in fine, as a substitute for the plan of the Convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive.

⁴⁴ And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution.

⁴⁵ I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates: I mean that of uniting the House of Representatives in the power of making them.

⁴⁶ I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community.

⁴⁷ A body so fluctuating, and at the same time so numerous, can never be deemed proper for the exercise of that power.

⁴⁸ Its unfitness will appear manifest to all when it is recollected that in half a century it may consist of three or four hundred persons.

⁴⁹ All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned.

⁵⁰ The example of most of the states in their local constitutions encourages us to reprobate the idea.

⁵¹ The only remaining powers of the Executive are comprehended in giving information to Congress of the State of the Union, in recommending to their consideration such measures as he shall judge expedient, in convening them or either branch upon extraordinary occasions, in adjourning them when they cannot themselves agree upon the time of adjournment, in receiving ambassadors and other public ministers, in faithfully executing the laws, and in commissioning all the officers of the United States.

⁵² Except some cavils about the power of convening either House of the Legislature, and that of receiving ambassadors, no objection has been made to this class of authorities, nor could they possibly admit of any.

⁵³ It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to.

⁵⁴ In regard to the power of convening either House of the Legislature, I shall barely remark that in respect to the Senate at least, we can readily discover a good reason for it.

⁵⁵ As this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object when it would be unnecessary and improper to convene the House of Representatives.

⁵⁶ As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.

⁵⁷ We have now completed a survey of the structure and powers of the Executive department which, I have endeavored to show, combines as far as republican principles will admit all the requisites to energy.

⁵⁸ The remaining inquiry is: does it also combine the requisites to safety in a republican sense, a due dependence on the people, a due responsibility?

⁵⁹ The answer to this question has been anticipated in the investigation of its other characteristics and is satisfactorily deducible from these circumstances, from the election of the President once in four years by persons immediately chosen by the people for that purpose, and from his being at all times liable to impeachment, trial, [dismissal] from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.

⁶⁰ But these precautions, great as they are, are not the only ones which the plan of the Convention has provided in favor of the public security.

⁶¹ In the only instances in which the abuse of the Executive authority was materially to be feared, the Chief Magistrate of the United States would by that plan be subjected to the control of a branch of the Legislative body.

Hamilton concludes his treatment of the Executive Branch, eleven papers of roughly 20,000 words, with a section of the Constitution that is just over 1000 words. Clause by clause he has defended each one of those words, an interesting exercise in the advocate’s craft, for these were by no means the terms he had brought to the Constitutional Convention some eleven months ago.

Was Hamilton merely an advocate or a true believer? Given no other evidence than the essays at hand, it is impossible to say, although the line between the two is, in Hamilton’s more passionate moments, very thin indeed. It may be that the measured cadences of the courtroom are inappropriate here in the court of public opinion.

Hamilton is cleaning up the open issues from the preceding ten essays, pausing at the beginning to address the advantages of Presidential appointment. One of these is continuity across administrations (4), through which the federal government will attain a certain immunity from the vacillations of popular election. That will result in the desired stability; it will, as well, be populated by a cast of characters who will form a bureaucratic ruling class. But that is in the future. Hamilton spends some time discussing the effect of the relationship between President and Senate from the standpoint of influence. It is not, he states, as straightforward as the critics have implied, and with respect to the denial of appointments, it is difficult to tell who will be influenced by whom (18, 20).

Hamilton next references the state of New York’s practices with respect to appointment to office. There is clearly a transparency issue.

That is the disadvantage of a small review board, and it is the reason that such a method has not been copied under the proposed Constitution. There is, as well, the possibility that it will deliver a de facto ruling class.

Worse, there is the inevitability of Hamilton’s old fear, faction (39), which will lead ineluctably toward corruption.

The inclusion of the House of Representatives in this system has twice been dismissed by Hamilton, and he merely repeats his reasoning here: the House is too fluctuating and too numerous (47) to fulfill that role, the more so for the size Hamilton anticipates it to attain.

⁴⁸ Its unfitness will appear manifest to all when it is recollected that in half a century it may consist of three or four hundred persons.

Hamilton truly is at the end of his list. All that remains are the State of the Union Address (51), and the President’s ability to convene and dismiss both Houses of Congress. Hamilton makes the point that inasmuch as the duties of those two Houses differ, it will be advantageous to make the Executive capable of convening one of them at a time instead of both together, particularly in the sensitive matter of treaties (55).

⁵⁸ The remaining inquiry is: does it also combine the requisites to safety in a republican sense, a due dependence on the people, a due responsibility?

The answer to that, says Hamilton, is in the safeguards provided by term of office, being liable to impeachment, and subject to the more ordinary civil penalties in the event of crimes resulting in that impeachment (59). Thus the two criteria mentioned eleven papers ago, energy and accountability, have been addressed within the Executive.

The answer to that hypothetical question would come thundering from the anti-Federalists shortly, for in point of fact it was not more, but less, that they would desire from the office of the President.

The appointment of Supreme Court justices has occasioned rejection by the Senate many times. Lyndon Johnson’s attempt to replace Chief Justice Earl Warren with Justice Abe Fortas ended with a filibuster in the Senate. Fortas’ resignation led to Richard Nixon’s attempts to place first, Clement Haynesworth, and then G. Harold Carswell on the Court, both of whom were rejected by the Senate. Ronald Reagan saw his nomination of Robert Bork rejected by the Senate. Do these events support Hamilton’s position or refute it?

From Article II of our Constitution;

Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

...[the president] shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

The President has a specified constitutional duty. When that duty conflicts with the politics of the Senate we have a scenario, enacted several times over the last decade, where the Senate actually wants to hinder the Executive from his constitutional duty, including the appointment of prudent jurists to the various federal seats.

The president's duty would be in conflict with the aims of those who wish to circumnavigate the Constitution's theme. They could, and would, use the consent powers to stop him.

I know I am repeating myself, but the 17th Amendment changed the character of the Senate. I firmly believe that the writers of the Federalist would be aghast that such an Amendment was enacted.

Because of the mutation caused by the 17th, I (personally) find the Federalists that are written about the Senate to be concerned with another body, one that no longer exists.

I love Hamilton's writings, but it is about a chamber that no longer exists. I wonder how the Federalists/Anti-Federalists would have written about the Senate as it exists today.

17th amendment was utterly inconsequential. The attention it gets makes me laugh.

Here is antifederalist thought on the mode of electing senators:

The following excerpt is from the essays of "A FARMER." It appeared in the Philadelphia Independent Gazetteer on April 15 and 22, 1788
. . . . The Freeman, in his second number, after mentioning in a very delusory manner diverse powers which remain with the states, says we shall find many other instances under the constitution which require or imply the existence or continuance of the sovereignty and severalty of the states. He, as well as all the advocates of the new system, take as their strong ground the election of senators by the state legislatures, and the special representation of the states in the federal senate, to prove that internal sovereignty still remains with the States. Therefore they say that the new system is so far from annihilating the state governments, that it secures them, that it cannot exist without them, that the existence of the one is essential to the existence of the other. It is true that this particular partakes strongly of that mystery which is characteristic of the system itself. But if I demonstrate that this particular, so far from implying the continuance of the state sovereignties, proves in the clearest manner the want of it, I hope the other particular powers will not be necessary to dwell upon.
The State legislatures do not choose senators by legislative or sovereign authority, but by a power of ministerial agency as mere electors or boards of appointment. They have no power to direct the senators how or what duties they shall perform; they have neither power to censure the senators, nor to supersede them for misconduct. It is not the power of choosing to office merely that designates sovereignty, or else corporations who appoint their own officers and make their own by-laws, or the heads of department who choose the officers under them, such as commanders of armies, etc., may be called sovereigns, because they can name men to office whom they cannot dismiss therefrom. The exercise of sovereignty does not consist in choosing masters, such as the senators would be, who, when chosen, would be beyond control, but in the power of dismissing, impeaching, or the like, those to whom authority is delegated. The power of instructing or superseding of delegates to Congress under the existing confederation has never been complained of, although the necessary rotation of members of Congress has often been censured for restraining the state sovereignties too much in the objects of their choice. As well may the electors who are to vote for the president under the new constitution, be said to be vested with the sovereignty, as the State legislatures in the act of choosing senators. The senators are not even dependent on the States for their wages, but in conjunction with the federal representatives establish their own wages. The senators do not vote by States, but as individuals. The representatives also vote as individuals, representing people in a consolidated or national government; they judge upon their own elections, and, with the Senate, have the power of regulating elections in time, place and manner, which is in other words to say, that they have the power of elections absolutely vested in them.
That the State governments have certain ministerial and convenient powers continued to them is not denied, and in the exercise of which they may support, but cannot control the general government, nor protect their own citizens from the exertion of civil or military tyranny-and this ministerial power will continue with the States as long as two- thirds of Congress shall think their agency necessary. But even this will be no longer than two-thirds of Congress shall think proper to propose, and use the influence of which they would be so largely possessed to remove it. But these powers of which the Freeman gives us such a profuse detail, and in describing which be repeats the same powers with only varying the terms, such as the powers of officering and training the militia, appointing State officers, and governing in a number of internal cases, do not any of them separately, nor all taken together, amount to independent sovereignty. They are powers of mere ministerial agency, which may, and in many nations of Europe are or have been vested, as before observed, in heads of departments, hereditary vassals of the crown, or in corporations; but not that kind of independent sovereignty which can constitute a member of a federal republic, which can enable a State to exist within itself if the general government should cease.
I have often wondered how any writer of sense could have the confidence to avow, or could suppose the people to be ignorant enough to believe that, when a State is deprived of the power not only of standing armies (this the members of a confederacy ought to be), but of commanding its own militia, regulating its elections, directing or superseding its representatives, or paying them their wages; who is, moreover, deprived of the command of any property, I mean source of revenue or taxation, or what amounts to the same thing, who may enact laws for raising revenue, but who may have these laws rendered nugatory, and the execution thereof superseded by the laws of Congress. [sic] This is not a strained construction, but the natural operation of the powers of Congress under the new constitution; for every object of revenues, every source of taxation, is vested in the general government. Even the power of making inspection laws, which, for obvious conveniency, is left with the several States, will be unproductive of the smallest revenue to the State governments; for, if any should arise, it is to be paid over to the officers of Congress. Besides, the words "to make all laws necessary and proper for carrying into execution the foregoing powers," etc., give, without doubt, the power of repelling or forbidding the execution of any tax law whatever, that may interfere with or impede the exercise of the general taxing power, and it would not be possible that two taxing powers should be exercised on the same sources of taxation without interfering with each other. May not the exercise of this power of Congress, when they think proper, operate not only to destroy those ministerial powers which are left with the States, but even the very forms? May they not forbid the state legislatures to levy a shilling to pay themselves, or those whom they employ, days' wages?
The State governments may contract for making roads (except post-roads), erecting bridges, cutting canals, or any other object of public importance; but when the contract is performed or the work done, may not Congress constitutionally prevent the payment? Certainly; they may do all this and much more, and no man would have a right to charge them with breaking the law of their appointment. It is an established maxim, that wherever the whole power of the revenue or taxation is vested, there virtually is the whole effective, influential, sovereign power, let the forms be what they may. By this armies are procured, by this every other controlling guard is defeated. Every balance or check in government is only so far effective as it has a control over the revenue.
The State governments are not only destitute of all sovereign command of, or control over, the revenue or any part of it, but they are divested of the power of commanding or prescribing the duties, wages, or punishments of their own militia, or of protecting their life, property or characters from the rigors of martial law. The power of making treason laws is both a power and an important defense of sovereignty; it is relative to and inseparable from it; to convince the States that they are consolidated into one national government, this power is wholly to be assumed by the general government. All the prerogatives, all the essential characteristics of sovereignty, both of the internal and external kind, are vested in the general government, and consequently the several States would not be possessed of any essential power or effective guard of sovereignty. Thus I apprehend, it is evident that the consolidation of the States into one national government (in contra- distinction from a confederacy) would be the necessary consequence of the establishment of the new constitution, and the intention of its framers-and that consequently the State sovereignties would be eventually annihilated, though the forms may long remain as expensive and burdensome remembrances of what they were in the days when (although laboring under many disadvantages) they emancipated this country from foreign tyranny, humbled the pride and tarnished the glory of royalty, and erected a triumphant standard to liberty and independence.
A FARMER

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