Antifederalist No. 64 ON THE ORGANIZATION AND POWERS OF THE SENATE (PART
3)
Taken from the New York Journal, Nov. 22, 1787 by "CINCINNATUS"
It appears to have been written in answer to James Wilson's Antifederalist # 12)
I come now, sir, to the most exceptionable part of the Constitution-the
Senate. In this, as in every other part, you [James Wilson of Pennsylvania] are
in the line of your profession Law], and on that ground assure your fellow
citizens, that-"perhaps there never was a charge made with less reason,
than that which predicts the institution of a baneful aristocracy in the Federal
Senate." And yet your conscience smote you, sir, at the beginning, and
compelled you to prefix a perhaps to this strange assertion. The senate, you
say, branches into two characters-the one legislative and the other executive.
This phraseology is quaint, and the position does not state the whole truth. I
am very sorry, sir, to be so often obliged to reprehend the suppression of
information at the moment that you stood forth to instruct your fellow citizens,
in what they were supposed not to understand. In this character, you should
have abandoned your professional line, and told them, not only the truth, but
the whole truth. The whole truth then is, that the same body, called the
senate, is vested with legislative, executive and judicial powers. The two
first you acknowledge; the last is conveyed in these words, sec. 3d.: "The
Senate shall have the sole power to try all impeachments." On this point
then we are to come to issue-whether a senate so constituted is likely to
produce a baneful aristocracy, which will swallow up the democratic rights and
liberties of the nation. To judge on this question, it is proper to examine
minutely into the constitution and powers of the senate; and we shall then see
with what anxious and subtle cunning it is calculated for the proposed purpose.
1st. It is removed from the people, being chosen by the legislatures-and
exactly in the ratio of their removal from the people do aristocratic principles
constantly infect the minds of man. 2nd. They endure, two thirds for four, and
one third for six years, and in proportion to the duration of power, the
aristocratic exercise of it and attempts to extend it, are invariably observed
to increase. 3rd. From the union of the executive with the legislative
functions, they must necessarily be longer together, or rather constantly
assembled; and in proportion to their continuance together, they will be able to
form effectual schemes for extending their own power, and reducing that of the
democratic branch. If any one would wish to see this more fully illustrated,
let him turn to the history of the Decemviri in Rome. 4th. Their advice and
consent being necessary to the appointment of all the great officers of state,
both at home and abroad, will enable them to win over any opponents to their
measures in the house of representatives, and give them the influence which, we
see, accompanies this power in England; and which, from the nature of man, must
follow it every where. 5th. The sole power of impeachment being vested in them,
they have it in their power to control the representative in this democratic
right; to screen from punishment, or rather from conviction, all high offenders,
being their creatures, and to keep in awe all opponents to their power in high
office. 6th. The union established between them and the vice president, who is
made one of the corps, and will therefore be highly animated with the
aristocratic spirit of it, furnishes them a powerful shield against popular
suspicion and inquiry, he being the second man in the United States who stands
highest in the confidence and estimation of the people. And lastly, the right
of altering or amending money-bills, is a high additional power given them as a
branch of the legislature, which their analogous branch, in the English
parliament, could never obtain because it has been guarded by the
representatives of the people there, with the most strenuous solicitude as one
of the vital principles of democratic liberty.
Is a body so vested with means to soften and seduce-so armed with power to
screen or to condemn-so fortified against suspicion and inquiry-so largely
trusted with legislative powers-so independent of and removed from the people-so
tempted to abuse and extend these powers-is this a body which freemen ought ever
to create, or which freemen can ever endure? Or is it not a monster in the
political creation, which we ought to regard with horror? Shall we thus forget
our own fetters? Shall we set up the idol, before which we shall soon be
obliged, however reluctantly, to bow? Shall we consent to see a proud
aristocracy erect his domineering crest in triumph over our prostrate liberties?
But we shall yet see more clearly, how highly favored this senate has been,
by taking a similar view of the representative body. This body is the true
representative of the democratic part of the system; the shield and defense of
the people. . . . Its transcendent and incommunicable power of impeachment-that
high source of its dignity and control-in which alone the majesty of the people
feels his sceptre, and bears aloft his fasces-is rendered ineffectual, by its
being triable before its rival branch, the senate, the patron and prompter of
the measures against which it is to sit in judgment. It is therefore most
manifest, that from the very nature of the constitution the right of impeachment
apparently given, is really rendered ineffectual. And this is contrived with so
much art, that to discover it you must bring together various and distant parts
of the constitution, or it will not strike the examiner, that the same body that
advises the executive measures of government which are usually the subject of
impeachment, are the sole judges on such impeachments. They must therefore be
both party and judge, and must condemn those who have executed what they
advised. Could such a monstrous absurdity have escaped men who were not
determined, at all events, to vest all power in this aristocratic body? Is it
not plain, that the senate is to be exalted by the humiliation of the democracy?
A democracy which, thus bereft of its powers, and shorn of its strength, will
stand a melancholy monument of popular impotence. . . .
"When the legislative and executive powers are united in the same
person, or in the same corps," [says Montesquieu] "there can be no
liberty. Because, it may be feared, that the same monarch or senate will make
tyrannical laws, that they may execute them tyrannically." I am aware that
this great man is speaking of a senate being the whole legislature; whereas the
one before us is but a branch of the proposed legislature. But still the reason
applies, inasmuch as the legislative power of the senate will enable it to
negative all bills that are meant to control the executive; and from being
secure of preventing any abridgment, they can watch every pliant hour of the
representative body to promote an enlargement of the executive powers. One
thing at least is certain, that by making this branch of the legislature
participant in the executive, you not only prevent the legislature from being a
check upon the executive, but you inevitably prevent its being checked or
controlled by the other branch.
To the authority of Montesquieu, I shall add that of Mr. De Lolme, whose
disquisition on government is allowed to be deep, solid, and ingenious. . . . "It
is not only necessary," [says he] "to take from the legislature the
executive power which would exempt them from the laws; but they should not have
even a hope of being ever able to arrogate to themselves that power." To
remove this hope from their expectation, it would have been proper, not only to
have previously laid down, in a declaration of rights, that these powers should
be forever separate and incommunicable; but the frame of the proposed
constitution should have had that separation religiously in view, through all
its parts. It is manifest this was not the object of its framers; but, that on
the contrary there is a studied mixture of them in the senate as necessary to
erect it into that potent aristocracy which it must infallibly produce. In
pursuit of this daring object, than which no greater calamity can be brought
upon the people, another egregious error in constitutional principles is
committed. I mean that of dividing the executive powers between the senate and
president. Unless more harmony and less ambition should exist between these two
executives than ever yet existed between men in power, or than can exist while
human nature is as it is, this absurd division must be productive of constant
contentions for the lead, must clog the execution of government to a
mischievous, and sometimes to a disgraceful degree; and if they should unhappily
harmonize in the same objects of ambition, their number and their combined power
would preclude all fear of that responsibility, which is one of the great
securities of good, and restraints on bad governments. Upon these principles
Mr. DeLolme has foreseen that "the effect of a division of the executive
power is the establishment of absolute power in one of continual contention;"
he therefore lays it down, as a general rule . . . "for the tranquility of
the state it is necessary that the executive power should be in one." I
will add, that this singlehood of the executive is indispensably necessary to
effective execution, as well as to the responsibility and rectitude of him to
whom it is entrusted.
By this time I hope it is evident from reason and authority, that in the
constitution of the senate there is much cunning and little wisdom; that we have
much to fear from it, and little to hope, and then it must necessarily produce a
baneful aristocracy, by which the democratic rights of the people will be
overwhelmed.
It was probably upon this principle that a member of the convention, of high
and unexceeded reputation for wisdom and integrity, is said to have emphatically
declared, that he would sooner lose his right hand, than put his name to such a
constitution.
CINCINNATUS
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