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FReeper Book Club: The Debate over the Constitution, Brutus #16
A Publius/Billthedrill Essay | 13 January 2011 | Publius & Billthedrill

Posted on 01/13/2011 7:49:21 AM PST by Publius

Brutus Dissects the Senate

Brutus finishes his issues with the Judiciary Branch and takes a close look at the Senate.

Brutus #16

10 April 1788

1 When great and extraordinary powers are vested in any man or body of men, which in their exercise may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.

***

2 Perhaps no restraints are more forcible than such as arise from responsibility to some superior power.

3 Hence it is that the true policy of a republican government is to frame it in such manner that all persons who are concerned in the government are made accountable to some superior for their conduct in office.

4 This responsibility should ultimately rest with the people.

5 To have a government well administered in all its parts, it is requisite the different departments of it should be separated and lodged as much as may be in different hands.

6 The legislative power should be in one body, the executive in another, and the judicial in one different from either.

7 But still each of these bodies should be accountable for their conduct.

8 Hence it is impracticable, perhaps, to maintain a perfect distinction between these several departments.

9 For it is difficult, if not impossible, to call to account the several officers in government without in some degree mixing the legislative and judicial.

10 The legislature in a free republic are chosen by the people at stated periods, and their responsibility consists in their being amenable to the people.

11 When the term for which they are chosen shall expire, who will then have opportunity to displace them if they disapprove of their conduct, but it would be improper that the judicial should be elective because their business requires that they should possess a degree of law knowledge which is acquired only by a regular education, and besides it is fit that they should be placed in a certain degree in an independent situation that they may maintain firmness and steadiness in their decisions.

12 As the people, therefore, ought not to elect the judges, they cannot be amenable to them immediately; some other mode of amenability must therefore be devised for these, as well as for all other officers which do not spring from the immediate choice of the people; this is to be effected by making one court subordinate to another and by giving them cognizance of the behavior of all officers, but on this plan we at last arrive at some supreme, over whom there is no power to control but the people themselves.

13 This supreme controlling power should be in the choice of the people, or else you establish an authority independent and not amenable at all, which is repugnant to the principles of a free government.

14 Agreeable to these principles, I suppose the Supreme Judicial ought to be liable to be called to account for any misconduct by some body of men who depend upon the people for their places, and so also should all other great officers in the state who are not made amenable to some superior officers.

15 This policy seems in some measure to have been in view of the Framers of the new system and to have given rise to the institution of a court of impeachments.

16 How far this court will be properly qualified to execute the trust which will be reposed in them will be the business of a future paper to investigate.

17 To prepare the way to do this, it shall be the business of this to make some remarks upon the constitution and powers of the Senate, with whom the power of trying impeachments is lodged.

***

18 The following things may be observed with respect to the constitution of the Senate.

***

23 The apportionment of members of Senate among the states is not according to numbers or the importance of the states, but is equal.

24 This, on the plan of a consolidated government, is unequal and improper, but is proper on the system of confederation; on this principle I approve of it.

25 It is indeed the only feature of any importance in the constitution of a confederated government.

26 It was obtained after a vigorous struggle of that part of the Convention who were in favor of preserving the state governments.

27 It is to be regretted that they were not able to have infused other principles into the plan to have secured the government of the respective states, and to have marked with sufficient precision the line between them and the general government.

***

28 The term for which the Senate are to be chosen is in my judgment too long, and no provision being made for a rotation will, I conceive, be of dangerous consequence.

***

29 It is difficult to fix the precise period for which the Senate should be chosen.

30 It is a matter of opinion, and our sentiments on the matter must be formed by attending to certain principles.

31 Some of the duties which are to be performed by the Senate seem evidently to point out the propriety of their term of service being extended beyond the period of that of the assembly.

32 Besides, as they are designed to represent the aristocracy of the country, it seems fit they should possess more stability and so continue a longer period than that branch who represent the democracy.

33 The business of making treaties, and some other which it will be proper to commit to the Senate, requires that they should have experience, and therefore that they should remain some time in office to acquire it.

34 But still, it is of equal importance that they should not be so long in office as to be likely to forget the hand that formed them or be insensible of their interests.

35 Men long in office are very apt to feel themselves independent [and] to form and pursue interests separate from those who appointed them.

36 And this is more likely to be the case with the Senate, as they will for the most part of the time be absent from the state they represent and associate with such company as will possess very little of the feelings of the middling class of people.

37 For it is to be remembered that there is to be a federal city, and the inhabitants of it will be the great and the mighty of the earth.

38 For these reasons I would shorten the term of their service to four years.

39 Six years is a long period for a man to be absent from his home; it would have a tendency to wean him from his constituents.

***

40 A rotation in the Senate would also in my opinion be of great use.

41 It is probable that senators once chosen for a state will, as the system now stands, continue in office for life.

42 The office will be honorable if not lucrative.

43 The persons who occupy it will probably wish to continue in it, and therefore use all their influence and that of their friends to continue in office.

44 Their friends will be numerous and powerful, for they will have it in their power to confer great favors; besides it will before long be considered as disgraceful not to be re-elected.

45 It will therefore be considered as a matter of delicacy to the character of the senator not to return him again.

46 Everybody acquainted with public affairs knows how difficult it is to remove from office a person who [has] long been in it.

47 It is seldom done except in cases of gross misconduct.

48 It is rare that want of competent ability procures it.

49 To prevent this inconvenience, I conceive it would be wise to determine that a senator should not be eligible after he had served for the period assigned by the Constitution for a certain number of years; perhaps three would be sufficient.

50 A farther benefit would be derived from such an arrangement: it would give opportunity to bring forward a greater number of men to serve their country, and would return those who had served to their state and afford them the advantage of becoming better acquainted with the condition and politics of their constituents.

51 It farther appears to me proper that the legislatures should retain the right which they now hold under the Confederation of recalling their members.

52 It seems an evident dictate of reason that when a person authorizes another to do a piece of business for him, he should retain the power to displace him when he does not conduct according to his pleasure.

53 This power in the state legislatures under confederation has not been exercised to the injury of the government, nor do I see any danger of its being so exercised under the new system.

54 It may operate much to the public benefit.

***

55 These brief remarks are all I shall make on the organization of the Senate.

56 The powers with which they are invested will require a more minute investigation.

***

57 This body will possess a strange mixture of legislative, executive and judicial powers, which in my opinion will in some cases clash with each other.

1.

58 They are one branch of the Legislature and in this respect will possess equal powers in all cases with the House of Representatives, for I consider the clause which gives the House of Representatives the right of originating bills for raising a revenue as merely nominal, seeing the Senate be authorised to propose or concur with amendments.

2.

59 They are a branch of the Executive in the appointment of ambassadors and public ministers and in the appointment of all other officers not otherwise provided for; whether the forming of treaties, in which they are joined with the President, appertains to the Legislative or the Executive part of the government, or to neither, is not material.

3.

60 They are part of the Judicial, for they form the court of impeachments.

61 It has been a long established maxim that the legislative, executive and judicial departments in government should be kept distinct.

62 It is said, I know, that this cannot be done.

63 And therefore that this maxim is not just, or at least that it should only extend to certain leading features in a government.

64 I admit that this distinction cannot be perfectly preserved.

65 In a due balanced government, it is perhaps absolutely necessary to give the executive qualified legislative powers, and the legislative or a branch of them judicial powers in the last resort.

66 It may possibly also in some special cases be advisable to associate the legislature, or a branch of it, with the executive in the exercise of acts of great national importance.

67 But still the maxim is a good one, and a separation of these powers should be sought as far as is practicable.

68 I can scarcely imagine that any of the advocates of the system will pretend that it was necessary to accumulate all these powers in the Senate.

***

69 There is a propriety in the Senate’s possessing legislative powers; this is the principal end which should be held in view in their appointment.

70 I need not here repeat what has so often and ably been advanced on the subject of a division of the legislative power into two branches.

71 The arguments in favor of it I think conclusive.

72 But I think it equally evident that a branch of the Legislature should not be invested with the power of appointing officers.

73 This power in the Senate is very improperly lodged for a number of reasons.

74 These shall be detailed in a future number.

Brutus’ Critique

Brutus’ real issue is neither the Judicial nor the Senate, but checks and balances, and for the first time in his series the reader gets the distinct sense he is willing to concede that there are ambiguities involved in the translation of theory to practice in that area. He offers two anchors for his analysis: first, that a foundational principle in republican government is accountability (3); second, that the ultimate accountability is not simply to “some superior” but to the people itself (4).

The reader is struck by the impression that Brutus the anti-Federalist summarizes the underlying issues better than his Federalist opponents, who have already tried.

5 To have a government well administered in all its parts, it is requisite the different departments of it should be separated and lodged as much as may be in different hands.

6 The legislative power should be in one body, the executive in another, and the judicial in one different from either.

7 But still each of these bodies should be accountable for their conduct.

8 Hence it is impracticable, perhaps, to maintain a perfect distinction between these several departments.

As the Federalists have already explained, some crossover of powers is necessary to provide for accountability, and it is the accountability issue that most disturbs Brutus with respect to the Supreme Court.

14 Agreeable to these principles, I suppose the Supreme Judicial ought to be liable to be called to account for any misconduct by some body of men who depend upon the people for their places

Despite their potentially dangerous independence, Brutus concedes they are subject to impeachment (15), a matter placed in the hands of the Senate. Hence it is toward the Senate that Brutus now directs his scrutiny.

The first principle under consideration is that under the proposed Constitution, the Senate is not to be popularly elected and is not to be enumerated according to population, but by state. This is, after all, not to be a democratic government of the American people as a whole, a consolidated government, but a confederation sharply defined by the sovereignty of its constituent states. For Brutus is a proponent of the latter.

24 This, on the plan of a consolidated government, is unequal and improper, but is proper on the system of confederation; on this principle I approve of it.

It is the confederation system that Brutus is, and has been, defending, and insofar as the Constitution leads down that pathway, he approves of it. His criticism is focused on those aspects of the Constitution that he suspects will inevitably lead down another pathway altogether.

There is, for one thing, the matter of a six-year term for its members, which Brutus thinks ought to be shortened to four, the same as that of the President (38), inasmuch as the longer period of six years will tend to isolate the senator from his constituency (39). But more to the point, he is in favor of term limits, because he suspects that incumbency in an office is likely to be for life unless otherwise restricted (41). It is difficult to fault Brutus for this particular prediction given the two hundred year history of the Senate.

Furthermore, he feels the Senate would be improved by the ability of the state legislatures to recall senators for reasons they consider sufficient (51), tacitly for votes considered in favor of the interests of the government at large but against the interests of their states. It is an existing feature of the present Articles of Confederation that has not been copied over to the Constitution.

Brutus proceeds to consider the powers granted to the Senate a “strange admixture” of legislative, judicial, and executive that in his “opinion will in some cases clash with each other” (57). This is apparently in excess of the sort of clashing Brutus has already conceded is necessary at 24, so much so that he feels that it stands to place the Senate and the House on an equal basis.

58 They… will possess equal powers in all cases with the House of Representatives, for I consider the clause which gives the House of Representatives the right of originating bills for raising a revenue as merely nominal, seeing the Senate be authorized to propose or concur with amendments.

It is a shrewd judgment, albeit incorrect. In practice the House has proven, as Hamilton predicted, jealous enough of the “power of the purse” to resist the Senate encroaching on it.

Brutus has, however, a keen eye for the places where the power does cross over. They are, he reminds the reader, a “branch of the Executive in the appointment of ambassadors and public ministers” (59), and “a part of the Judicial, for they form the court of impeachments” (60). Far from contradicting himself, he reminds the reader of what he has conceded at 24, that the maxim of the separation of powers must, for accountability’s sake, be modified.

61 It has been a long established maxim that the legislative, executive and judicial departments in government should be kept distinct...

64 I admit that this distinction cannot be perfectly preserved.

67 But still the maxim is a good one, and a separation of these powers should be sought as far as is practicable.

Here Brutus’ position is thoroughly clear. The current arrangement is sound enough in theory, but in practice it simply goes too far.

68 I can scarcely imagine that any of the advocates of the system will pretend that it was necessary to accumulate all these powers in the Senate.

But Brutus is by no means an implacable foe of the current proposal. He feels that the Senate’s legislative powers are both justified and proper (69), and that the division of the Legislative branch into two houses is altogether appropriate.

70 I need not here repeat what has so often and ably been advanced on the subject of a division of the legislative power into two branches.

71 The arguments in favor of it I think conclusive.

But in particular he feels that no “branch of the Legislature should…be invested with the power of appointing officers.” That is, to be sure, a power that Hamilton took great care in Federalist #76 to point out was actually in dual hands: the President’s to nominate and the Senate’s to confirm – or not. It is the latter that Brutus finds inappropriate.

Discussion Topics



TOPICS: Constitution/Conservatism; Free Republic
KEYWORDS: federalistpapers; freeperbookclub

1 posted on 01/13/2011 7:49:25 AM PST by Publius
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To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...
Ping! The thread has been posted.

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
27 Feb 1788, Federalist #62
1 Mar 1788, Federalist #63
7 Mar 1788, Federalist #64
7 Mar 1788, Federalist #65
11 Mar 1788, Federalist #66
11 Mar 1788, Federalist #67
14 Mar 1788, Federalist #68
14 Mar 1788, Federalist #69
15 Mar 1788, Federalist #70
18 Mar 1788, Federalist #71
20 Mar 1788, Brutus #15
21 Mar 1788, Federalist #72
21 Mar 1788, Federalist #73
25 Mar 1788, Federalist #74
26 Mar 1788, Federalist #75
1 Apr 1788, Federalist #76
4 Apr 1788, Federalist #77

2 posted on 01/13/2011 7:52:04 AM PST by Publius (No taxation without respiration.)
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To: Publius

Since the 17th amendment did fundamentally alter the the structure of our government it’s repeal would restore that structure to what it was originally.

If it had been done two years ago there would be no Obama care law today!


3 posted on 01/13/2011 8:08:20 AM PST by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Publius

“14 Agreeable to these principles, I suppose the Supreme Judicial ought to be liable to be called to account for any misconduct by some body of men who depend upon the people for their places, and so also should all other great officers in the state who are not made amenable to some superior officers. “

Unfortunately, it was decided early on (impeachment of Samuel Chace) that political considerations would not be made in impeachment of judges.

“23 The apportionment of members of Senate among the states is not according to numbers or the importance of the states, but is equal. . . . .

26 It was obtained after a vigorous struggle of that part of the Convention who were in favor of preserving the state governments. “

I personally suspect this State level of appointing Senators was “de facto” decided when the states were chosen to ratify the constitution instead of the people (Madison’s proposal http://avalon.law.yale.edu/18th_century/debates_605.asp) I don’t however have a direct source other than my own suspicions.

“Furthermore, he feels the Senate would be improved by the ability of the state legislatures to recall senators for reasons they consider sufficient (51), tacitly for votes considered in favor of the interests of the government at large but against the interests of their states. It is an existing feature of the present Articles of Confederation that has not been copied over to the Constitution. “

And that’s a shame too.

“In practice the House has proven, as Hamilton predicted, jealous enough of the “power of the purse” to resist the Senate encroaching on it. “

Well yes but one has to wonder if the Senate should have the ability to generate any bills or even have the ability to amend House bills. I wonder how our government would be if the Senate’s sole role in the legislative process was to be a point of negation only. It might make for a better Senate and a better Federal Government. They may be less inclined to appoint judges that extend rather then negate laws, i.e. gay marriage.

“What might help fix the problem? “
I think a proper shot across the bow of the USSC would be for the House and the Senate to pass a resolution reminding the USSC that their role is to negate rather than extend law. If that does no good, one could imagine it coming up during the confirmation process. That would be enough, I think.

“his own suggestion was four years. Would such a change improve the Senate?”
No.

“Brutus wants the states to be able to recall their senators,”
Great idea. Their foundation would be on the people but they’d have to keep one eye on their own legislature’s interests.

“Would the repeal of the 17th Amendment ...”
Never gonna happen. One can’t make the argument to the people that their legislatures are better at picking Senators than they are.


4 posted on 01/13/2011 5:05:33 PM PST by MontaniSemperLiberi (Moutaineers are Always Free)
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To: Bigun

Reading this essay keeps directing my thoughts to writings by Machiavelli - - people are greedy.

No matter what the form of government, people will try to turn it into a profit mechanism for themselves and friends.


5 posted on 01/14/2011 8:19:30 AM PST by Loud Mime (FOO = = Follower of Obama - use it.)
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To: Publius; Billthedrill

I have enjoyed this essay and will study it over the weekend.

Your body of remarks is excellent. Thanks for your hard, fruitful work.


6 posted on 01/14/2011 8:26:48 AM PST by Loud Mime (FOO = = Follower of Obama - use it.)
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To: Loud Mime
Reading this essay keeps directing my thoughts to writings by Machiavelli - - people are greedy. No matter what the form of government, people will try to turn it into a profit mechanism for themselves and friends.

A FACT well recognized by Adam Smith and in his great work The Wealth of Nations as well as the great majority of our founders who did everything in their power to protect us from such an event.

I am more and more convinced that Hamilton was a paid agent of the British East India Company from the start!

7 posted on 01/14/2011 9:04:09 AM PST by Bigun ("It is difficult to free fools from the chains they revere." Voltaire)
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To: Bigun

“I am more and more convinced that Hamilton was a paid agent of the British East India Company from the start!”

I’m sympathetic to any nasty thing said about Hamilton. Reading through his Federalist papers, the man writes like a weasel.


8 posted on 01/14/2011 3:39:41 PM PST by MontaniSemperLiberi (Moutaineers are Always Free)
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