July 22, 2010 – Federalist No. 62 – Cathy Gillespie

Friday, July 23rd, 2010

In Federalist No. 62 Publius explains that the Senate was intended to be the more deliberative body.  It was designed to be very different from the U.S. House.  Senators must be older, age 30 instead of the required age 25 for the House; must have been citizens longer, nine years required for the Senate, while only seven for the House; and Senators were to be appointed by State Legislatures (until the ratification of the 17th Amendment providing for direct election of Senators).  Senators’ terms of office are six years, while U.S. House members serve for two years.

These differences were meant to slow the legislative process, to provide for a “cooling off” period, from the passions of the U.S. House.  There is a famous, often quoted story, of Thomas Jefferson (who was in France during the Constitutional Convention) returning to the U.S. and asking Washington why the delegates had created a Senate.  In Washington and Jefferson’s day, people often poured their hot coffee into their saucer before drinking it, to cool it.  Washington observed Jefferson doing this, and asked “Why did you pour that coffee into your sauce?” When Jefferson replied the obvious, “to cool it,” Washington answered, “Even so, we pour legislation into the Senatorial Saucer to cool it.”

The Senate’s famous tactic of the filibuster is another longstanding tradition meant to slow the legislative process. The  U.S. Senate website notes that until the cloture rule was adopted in 1917, there was no way to stop extended debates except by “unanimous consent, compromise, or exhaustion.”

It is hard to read Federalist No. 62 and not be reminded of the healthcare bill that recently became law.  Many of the founders’ words of warning found in this essay could have easily been written just a few months ago about this legislation which was hurried through the Congress, without the thorough vetting or deliberation our Founders intended:

“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.”

“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if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

One might wonder why the Senate did not act as the Founders’ had intended, as a brake on this rush to pass a healthcare bill that many Members of Congress did not have time to read?  The fact that State Legislatures no longer appoint U.S. Senators may have certainly had an impact, as well as the general partisanship that exists so much more in the Senate today, than in the past.

One thing is certain, Publius’s careful explanation of the Founders’ intentions in creating the Senate is as good as any political science textbook I have ever read. We should all work to get the Federalist Papers back into the schools and colleges!  Thomas Jefferson called the Federalist, “The best commentary on the principles of government which has ever been written.”  Federalist No. 62 certainly lives up to that billing!

On to Federalist No. 63!

Good night and God Bless,

Cathy Gillespie

 

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