July 27, 2010 – Federalist No. 65 – The Powers of the Senate Continued, From the New York Packet (Hamilton) – Guest Blogger: Troy Kickler, Ph.D., Founding Director of the North Carolina History Project

Tuesday, July 27th, 2010

Alexander Hamilton penned three essays (Federalist 64 – 66) explaining why the U.S. Constitution invested the U.S. Senate with certain powers.  In The Federalist 65, he explains, in particular, the Senate’s role in the impeachment process, and why that body–and not the Supreme Court–had been given the authority to convict.

According to the Constitution, the House of Representatives impeaches a national, public official and the Senate hears the trial and issues a verdict. Since 1789, when the U.S. Constitution was ratified, seventeen Americans have been impeached.   The list includes President Andrew Johnson and President William Clinton; however, it includes mainly judges at the U.S. District level.  Among those accused of political misconduct, one resigned before his trial, seven have been convicted, and eight have been acquitted.  Congress can only remove the convicted from their current political office.  The court system will hear any other trials and issue punishment for possible criminal acts.

For the impeachment process, the Constitution requires 1) that Senators “be on Oath or Affirmation,” 2) that the Chief Justice preside over any presidential impeachments (the Vice-President presided over all others), and 3) that a conviction verdict have a minimum of 2/3 vote.

Since 1776, individual state constitutions had included an impeachment process for state officials, and Antifederalists in various states questioned whether state constitutions might be undermined.  Among them was Luther Martin, who ironically later opposed Jeffersonian-Republicans by serving as Justice Samuel Chase’s legal defense during an 1805, national impeachment case.  Other Antifederalists genuinely worried that outside political influence during the impeachment process might affect the Senators’ votes.  In North Carolina, Joseph Taylor and Timothy Bloodworth worried that the House might one day impeach state officials.  Edenton’s James Iredell, one of the first justices on the U.S. Supreme Court, dismissed this argument by pointing out that the constitutional language was clear: only national officials could be impeached by the House of Representatives and possibly convicted by the Senate.

Alexander Hamilton was fully aware of such arguments and put forth a cogent defense of the Senate’s impeachment power in Federalist 65.

One major question that Hamilton answered is why the Senate is given the power to try impeachment cases.  Somewhat agreeing with Antifederalists, Hamilton admitted that partisanship or “political factions” could trump demonstrations of guilt and truth during impeachment trials.  It was possible that reelection concerns and constituents would indeed play a larger role in the impeachment voting process than a genuine search for truth. But that’s why, Hamilton pointed out, the Senate–not the House of Representatives–was given the power.

Before the 17th Amendment’s passage in 1913, state legislatures elected national senators for their state, so Senators were not concerned with winning the popular vote.  Senators were considered in Hamilton’s era, as legal scholar Michael J. Gerhardt writes, “better educated, more virtuous, and more high-minded . . . and thus uniquely able to decide responsibly the most difficult of political questions.”  Elected by state legislative bodies, Senators were considered by Hamilton to be impartial and “sufficiently dignified” to perform the task. And to emphasize the seriousness of the impeachment and ensure a genuine search for truth, these virtuous men were required to take an oath or affirmation (affirmations were allowed so that Quakers, who were conscientiously scrupulous of taking oaths, might not be excluded).

Hamilton considered the Senate preferable to the Supreme Court, too.  For one, impeachment was serious business: a conviction could doom an official’s honor.  Such a decision, Hamilton reasoned, should not be left to a “small number of persons” but to serious deliberation among the most virtuous Americans.  Moreover, the Court should not preside over two cases.  After being stripped of emoluments, the convicted might face the same—yet now predisposed–judges in another trial.  Judges inevitably influenced juries, the New York lawyer also stressed.  Some Constitution critics had suggested uniting the Supreme Court and the Senate during impeachment trials; Hamilton argued that might still lead to an unfair, double prosecution.

The Senate is also preferable to charging people “wholly distinct from the other departments of government” to preside over impeachment trials, Hamilton writes.  That option would increase government size and possibly require permanent positions; either way it would be too costly.  It also would slow down the impeachment process and thereby give the guilty extra time to obfuscate the truth.  Furthermore, Hamilton regretted to point out, a delay might give House members time to influence the decision.

Revealing the popularity and strength of Antifederalist arguments in certain states, Hamilton urged readers to consider the Constitution in its entirety and to avoid letting perfection be the enemy of the good.  The Constitution should not be rejected strictly for a small number of problems, Hamilton argued: [Antifederalists] “ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.”  The search for perfection in government, Hamilton warned in Federalist 65, can lead to anarchy.

Troy Kickler, Ph.D., is Founding Director of the North Carolina History Project.

 

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