The Federalist Papers on Impeachment
Table of Contents
Difficulty of Finding an Appropriate Body for Impeachment Trials
Influenced by the British Parliament
Likely to Lack Required Courage & Public Credibility
The Flexible Nature of Impeachment Proceedings
A Need to Separate Impeachment & Criminal Proceedings
Why Not Joint Sessions of the Senate & the Supreme Court?
What About an Independent Body Dedicated to Impeachment Trials?
Introduction
Between October 1787 and May 1788, Alexander Hamilton, John Jay, and James Madison anonymously authored - under the pseudonym “Publius” - a series of 85 essays in New York newspapers which advocated the ratification of the U.S. Constitution drafted at the 1787 Constitutional Convention.
Of the 85 essays, John Jay wrote 5 before falling ill, Madison wrote 29, and Hamilton authored 51.
These essays are today collectively referred to as the Federalist Papers and are referenced by order of publication. So, Federalist 25 refers to the 25th in this series of 85 essays.
The Supreme Court has often turned to these essays when adjudicating disputes over interpreting the Constitution and has referenced them in its opinions.
Thus, these 85 essays, originally intended as a tool for rallying support for the proposed Constitution drafted at the Constitutional Convention, have since taken on a more enduring function: providing present-day jurists with insights into how the architects of the Constitution intended it to be read and interpreted.
Federalist 65 and Federalist 66, both of which were written by Hamilton, argued in defense of the impeachment mechanism established by the Constitution.
Today, legal scholars parse these essays for indications of how the authors of the Constitution intended impeachment to work and what they considered impeachable offenses.
Federalist 65 also offers insights into how the framers of the Constitution settled on this mechanism at the Constitutional Convention, which Hamilton attended as a delegate from New York.
Federalist 65
The Powers of the Senate Continued (today referred to as Federalist 65) was published by Hamilton in the New York Packet on March 7, 1788.
The essay argues that the Senate is the best choice of body to be tasked with the responsibility of carrying out impeachment trials.
Difficulty of Finding an Appropriate Body for Impeachment Trials
Hamilton begins by noting the difficulty of finding an appropriate body to conduct impeachment trials.
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective.
The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
He writes, rather presciently, that cases of impeachment will inevitably become a politicized issue, with the process being influenced by sentiments towards the impeached individual.
And this means that the outcome of impeachment trials may be determined, not by the guilt or innocence of the impeached official, but by the relative strengths of his political allies and enemies.
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
The Constitutional Convention ultimately decided that impeachment trials should be conducted by the Senate.
The convention, it appears, thought the Senate the most fit depositary of this important trust.
The Senate, Hamilton argues, is the best possible venue for impeachment trials.
Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.
Influenced by the British Parliament
The decision of the Constitutional Convention to grant the House of Representatives the sole power of impeachment and the Senate the responsibility of carrying out impeachment trials, Hamilton tells us, was influenced by the arrangements of the British Parliament, which has a similar division of the impeachment process between its two chambers: the House of Commons and the House of Lords.
The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it.
The constitutions of several American states have also been influenced by the British model.
Several of the State constitutions have followed the example.
Both the British Parliament and those American state governments which have adopted the British model, Hamilton writes, seem to view impeachment as a check on executive power by the legislature, and this is how it should be viewed.
As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?
Why Not the Supreme Court?
Hamilton proceeds to argue against alternative bodies being given the responsibility of carrying out impeachment trials.
Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?
He begins with the Supreme Court.
Could the Supreme Court have been relied upon as answering this description?
Likely to Lack Required Courage & Public Credibility
The high court, Hamilton argues, might lack the courage and the credibility with the public needed for the task, which will occasionally require it to defy the will of the peoples’ direct representatives (i.e. the House of Representatives).
That is, justice may at times call on the Supreme Court to acquit an innocent public official who has been wrongly impeached by the House.
The high court, Hamilton writes, might lack the courage necessary for the task (though he doesn’t elaborate in detail why he believes this).
It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task[.]
Moreover, even if the Supreme Court didn’t lack the required courage, it would likely lack the credibility with the public needed to make decisions which defy the will of the public’s elected officials.
If the high court were to rule in favor of (i.e. acquit) an individual impeached by the popularly elected members of the House, and the court lacked credibility in the eyes of the public, the verdict could lead to public unrest.
[A]nd it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first [i.e. courage], would be fatal to the accused; in the last [i.e. credibility], dangerous to the public tranquillity.
The only potential solution to this problem, if one exists, is to have the trial conducted by a larger body (i.e. one with more members). This would lend the verdicts of the body conducting an impeachment trial more credibility.
The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy.
The Flexible Nature of Impeachment Proceedings
A tribunal with more judges than the Supreme Court is also required for another reason: the flexible nature of impeachment proceedings.
Impeachment proceedings are not like the legal proceedings to which private individuals are subject.
Impeachment is more flexible: the charges on which one may be impeached are more open-ended, not fully articulated in the law and the procedures according to which the impeachment tribunal must operate and rule are also more flexible.
That is, the prosecutors and judges in an impeachment hearing have more discretion than those in proceedings against private individuals.
To reduce the risk that this discretion is wielded inappropriately, Hamilton argues, impeachment trials should be conducted by a large number of judges.
The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.
This suggests that the Supreme Court is not the appropriate venue for impeachment trials.
These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments.
A Need to Separate Impeachment & Criminal Proceedings
There is, Hamilton argues, another reason for not granting this power to the high court: there must be a separation between the body that rules on whether to remove someone from office and the body that rules on criminal charges which may be brought against an impeached individual.
If the power to convict in an impeachment trial were granted to the Supreme Court, and it were to err in its ruling, the mistake would be compounded in the event additional charges against the impeached individual also wound up before the Supreme Court, which would repeat the mistake here.
Impeachment trials and any related criminal trials, Hamilton argues, must – for the protection of the individual charged – be conducted by two separate tribunals.
There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office.
Why Not Joint Sessions of the Senate & the Supreme Court?
What about the possibility that the Supreme Court and Senate sit jointly to deal with any impeachment trials?
This would have some advantages, but it would still suffer the problem of the Supreme Court being involved in both impeachment trials and any related criminal cases.
Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable?
And the Constitution does mandate that the Chief Justice of the Supreme Court shall preside over any impeachment trials of a president.
This grants presidential impeachment trials some of the benefits that would be gained by having the Senate and Supreme Court sit jointly as the judges in an impeachment trial, without the downside of the Supreme Court being more deeply involved in ruling on such trials.
To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean.
What About an Independent Body Dedicated to Impeachment Trials?
What about the possibility of setting up an independent body tasked solely with conducting impeachment trials?
There are some arguments to be made for this view, Hamilton writes.
Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan.
But, as argued above, the body conducting any impeachment trial should be composed of numerous members so as to give credibility to its decisions.
And if we were to construct some independent standing body, numerous in members, solely for the purpose of conducting occasional impeachment trials, its expenses would quickly add up. [1]
Alternatively, if we were to have a body which is not permanently stood up, but rather assembled as needed when cases of impeachment arise, we will face difficultly putting this body together in a timely fashion when the need arises.
The time is takes to assemble such a body would cause harm to the reputation of an impeached individual who is truly innocent, allowing for the continued besmirching of his character while he awaits trial.
And if he is truly guilty, the delay in assembling this body will provide him with an opportunity to continue behaviors which are harmful to the country: if a public officer’s actions are deleterious to the nation, we can’t afford to let his removal from office be delayed by the time it would take to assemble a temporary body to conduct an impeachment trial.
To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.
No Constitution is Perfect
And even if the reader feels that some alternative to the Senate conducting impeachment trials is preferable, this alone is not sufficient grounds for rejecting the proposed Constitution: there is no perfect institutional arrangement for government and rejecting any proposal which is imperfect would leave us with anarchy.
The Constitution drafted at the Constitutional Convention should only be rejected if it can be shown that it is flawed on the whole, not imperfect in some part.
But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole commuity, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they 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.
Impeachment is a Political Process
It should be noted that in arguing that the Senate is the best choice of governmental body to be endowed with the responsibility of carrying out impeachment trials, Hamilton makes a statement on the political character of impeachment.
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Impeachment, Hamilton writes, deals with “abuse or violation of some public trust.” It deals with damage done to society by a public official which may therefore be “denominated POLITICAL.”
This passage has subsequently been read as stating an intent by the framers of the Constitution for what constitutes an impeachable offence to be considered broadly: an act need not be strictly speaking illegal for it to be impeachable, only an “abuse or violation of some public trust.”
This passage from Federalist 65 along with the inclusion of the open-ended phrase “other high crimes and misdemeanors” in the impeachment clause of the Constitution has subsequently been read by legal scholars as bestowing upon the House of Representatives wide discretion in determining what constitutes an impeachable offence.
Summary
Federalist 65 argues that the Senate is the best choice of body to be tasked with the responsibility of carrying out impeachment trials.
The decision by the Constitutional Convention to divide the process of impeachment between the House and the Senate, Hamilton tells us, was influenced by the British Parliament, which similarly divides its impeachment process between its two chambers: the House of Commons and the House of Lords.
Impeachment, Hamilton writes, is a political process: it deals with “abuse or violation of some public trust.” It deals with damage done to society by a public official which may therefore be “denominated POLITICAL.” This passage has subsequently been read as stating an intent by the framers of the Constitution for what constitutes an impeachable offence to be considered broadly: an act need not be strictly speaking illegal for it to be impeachable.
The Supreme Court, a potential alternative body which could be tasked with the responsibility of conducting impeachment trials, is, Hamilton argues, a poor choice.
First, it would likely lack courage and the credibility with the public to rule against the will of the peoples’ directly elected officials when needed (i.e. to vote not to convict an innocent official after the House of Representatives has voted to impeach).
Second, impeachment proceedings confer broad discretion on the judges who rule on them. To reduce the likelihood that this discretion is misused, the number of judges who comprise impeachment tribunals should be large (and the Senate has more members than the Supreme Court).
Third, giving the Supreme Court the responsibility of conducting impeachment trials would leave it to the same body to conduct both impeachment trials and serve as the last court of appeal for any legal charges which may be brought against an impeached public official. Any potential error made by the high court in one of these rulings would therefore be compounded be repeating the error in the other.
There are arguments to be made for the idea that impeachment trials should be conducted by joint sessions of the Senate and the Supreme Court. But again, this arrangement would suffer from the deficiency of having the Supreme Court potentially involved in both impeachment trials and cases related to any criminal charges brought against an impeached official.
The Constitution does mandate that the Chief Justice of the Supreme Court shall preside over any impeachment trial of a president. This provides some of the benefit that would come from the Senate and Supreme Court conducting impeachment trials jointly while avoiding the flaw of having the Supreme Court fully involved.
Alternatively, an independent standing body could be created which is tasked with the sole responsibility of conducting impeachment trials. But such a body would be a drain on public resources. To grant its decisions in an impeachment trial weight, and thereby help ease any public tensions which its verdicts may arouse, the trial body should consist of a large number of members. And the expenses associated with standing a permanent independent impeachment body with a large number of members for the purpose of dealing with periodic impeachment trials would quickly add up. [1]
Yet another possible alternative is to assemble a temporary independent body as needed; that is, to temporarily put together a group of people to try an impeachment once the House has voted to impeach. The body would be dissolved at the conclusion of the impeachment trial for which it was assembled. But this approach, Hamilton writes, would present its own problems: the time it takes to assemble the body may allow a nefarious impeached individual to continue to do harm to the country while the trial body is being assembled. Or, in the event that the impeached individual is innocent, such delays would allow the continued besmirching of an individual who has been wrongly charged.
And even if the reader feels that some alternative to the Senate conducting impeachment trials is preferable, this alone is not sufficient grounds for rejecting the proposed Constitution: there is no perfect institutional arrangement for government and rejecting ant proposal which is imperfect would leave us with anarchy.
The Constitution drafted at the Constitutional Convention should only be rejected if it can be shown that it is flawed on the whole, not imperfect in some part.
Federalist 66
Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered (today referred to as Federalist 66) was published in the New York Packet on March 11, 1788.
In this essay, Hamilton provides his rebuttals to four arguments against the Senate being tasked with the responsibility of conducting impeachment trials by the U.S. Constitution:
1) That it endows what is intended to be a legislative body with an additional judiciary function, violating the principal of separation of powers.
2) That it makes the Senate too powerful.
3) That the Senate plays a role in confirming individuals to certain positions (e.g. Supreme Court justices) and therefore cannot be a neutral judge in any impeachment trial of these officials.
4) That, when coupled with its co-responsibility with the executive branch for negotiating treaties, this grants the Senate de facto immunity in the event it were to conspire with a foreign power to betray the nation.
Rebuttal One
Hamilton begins by addressing the following critique: authorizing the Senate to conduct impeachment trials, as the Constitution does, endows what is intended to be a legislative body with an additional judiciary function, and this violates the principal of separation of powers.
In response to this critique, Hamilton argues that a “partial intermixture” of legislative and judicial authority is not inconsistent with the principal of separation of powers.
The true meaning of this maxim [i.e. separation of powers] has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected.
In fact, in certain circumstances, such a “partial intermixture” is even necessary: granting the Senate this partial judicial power allows it to check an overreaching executive branch, and the ability to do so is essential to a sustainable separation of powers.
This partial intermixture is even, in some cases, not only proper but necessary to the mutual defense of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive.
And the division of the impeachment process between the House and the Senate, combined with the requirement that a supermajority of 2/3 of senators present must support any conviction (rather than just a simple majority), will reduce the risk of judicial overreach by Congress against the executive. This is also essential for a sustainable separation of powers between the branches.
The division of [powers related to impeachment] between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.
Rebuttal Two
Hamilton then turns to a second argument against entrusting the Senate with the responsibility of conducting impeachment trials: that it makes the Senate too powerful.
The proposed Constitution, the argument runs, already gives the Senate certain shared authorities with the executive branch. (For example, filling certain positions in the federal government (e.g. Supreme Court vacancies) and agreeing international treaties.)
Wouldn’t adding the ability to convict in impeachment trials to the list of senatorial powers make to Senate too powerful?
A SECOND objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence.
This argument, Hamilton writes, is imprecise: what’s the metric by which we may determine the proper amount of power with which to endow the Senate?
We should instead consider the power to convict in an impeachment trial in and of itself and consider which governmental body is the best option to be entrusted with this specific power.
To an objection so little precise in itself, it is not easy to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience?
And, Hamilton continues, I have already shown that the Senate is the best choice of governmental institution to be entrusted with this specific power in my last essay (Federalist 65).
And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings.
With respect to the relative balance of power between the House and the Senate, members of the House of Representatives are directly elected by the public every two years, unlike the Senate whose vacancies are filled by state legislatures. [2]
The House will therefore have the direct backing of the public and will thus be able to match, and probably outmatch, the power of the Senate.
But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most POPULAR branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government.
Moreover, the Constitution has granted the House several exclusive powers. This, Hamilton argues, will help ensure that the Senate is not excessively powerful relative to the House.
But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate.
The exclusive powers of the House include the sole authority to originate money bills.
The exclusive privilege of originating money bills will belong to the House of Representatives.
The House also has the exclusive authority to launch impeachment proceedings and that alone, Hamilton writes, outweighs the Senate’s authority to convict which depends, in the first instance, on the House to begin such proceedings.
The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them?
Additionally, the House will settle the outcome of presidential elections when no candidate wins a majority of electors, something Hamilton believed would happen at least sometimes and perhaps often.
The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate.
Rebuttal Three
The third argument against entrusting the Senate with the responsibility of conducting impeachment trials that Hamilton seeks to refute runs as follows: The Senate plays a role in confirming individuals to certain positions (e.g. Supreme Court justices). It would therefore not be a neutral judge in any impeachment trial of officials it had a hand in placing in the office in the first place.
A THIRD objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. …. [M]ight it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former.
The Senate, Hamilton writes, will not generally have a strong bias towards the individuals they confirm to these positions.
That’s because the Senate does not nominate individuals for these posts, it only confirms or rejects the president’s nominees.
As such, the Senate will not have such a strong bias towards these individuals that it would compromise their judgment in impeachment trials.
The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. …. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers.
If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments.
It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.
Rebuttal Four
Hamilton addresses a fourth and final argument against entrusting the Senate with the responsibility of conducting impeachment trials. The argument he seeks to rebut runs as follows: The Senate shares responsibility with the executive branch for agreeing international treaties. Therefore, granting the Senate the authority to not convict in impeachment trials means it may abuse this power to betray the nation. That is, it may conspire to agree treaties with foreign powers which are injurious to the nation, knowing that it will serve as its own jury in any subsequent impeachment trial.
A FOURTH objection to the Senate in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty?
Protection from such a betrayal, Hamilton argues, comes from the number and character of individuals that the Constitution requires be involved in the process of treaty negotiation and ratification. Adopting a treaty requires the support of both the president and 2/3 of the Senate, whose members, Hamilton writes, are appointed by the collective wisdom of the state legislatures. [2]
The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular.
Moreover, if we were to follow the logic of this argument against trusting to the Senate the power to conduct impeachment trials, Hamilton argues, we would also have to take exception to the exclusive power of the House to launch impeachment proceedings: a House with a corrupt or otherwise injurious majority would not choose to launch impeachment proceedings against itself.
The [Constitutional] convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law, a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power?
The fact is, Hamilton argues, that the members of these bodies must be immune from punishments for actions taken by the body collectively.
Protection from the risk of betrayal by these bodies comes, not from the threat of sanction against an entire legislative body, but from taking care to ensure that control of them is in the right hands and from making it as difficult as possible for their members to betray the public trust.
The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.
Moreover, in a case where the president does conspire with a foreign power to betray the interests of the nation, against the will of the Senate, we can trust that the Senate, wanting to assert its authority, will seek to punish the president.
So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue.
And in a case where a small group of senators conspires with a foreign power against the United States, and influences a majority of the Senate to follow suit, we can trust that this majority will quickly turn on the smaller group in any subsequent impeachment trial so as to divert public anger from itself.
And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.
Written By: Aiden Singh Published: January 19, 2021
Footnotes
[1] The financial context in which Hamilton was writing should be noted here. At the time of publication of this 1788 essay, America had only recently emerged from the Revolutionary War heavily in debt. It had no centralized monetary policy and its various states didn’t even use the same currency: a national currency had not yet been established. And continentals, the rebel currency issued by the Continental Congress to fund the war effort, had been rendered worthless by inflation. America’s fiscal and monetary arrangements were, by any metric, a mess.
It would not be until 1790 and 1791, respectively, that Hamilton’s two-pronged proposal for repairing America’s finances – a proposal for the adoption of states’ burdensome war debts by the federal government and a proposal for a national bank – would be adopted.
And it would be over a century before its eventual national currency, the U.S. Dollar, would become the unchallenged global reserve currency, endowing the United States with the financing and seigniorage benefits that stem therefrom.
Hamilton’s argument against a permanent standing body to deal with impeachments on the grounds of expenses seems much weaker today. But its merits as an argument for adopting the Constitution should be considered in the context Hamilton in which wrote.
[2] At the time of Hamilton’s writing, senators were to be appointed to the role by the state legislators. Direct election of senators began with the adoption of the 17th amendment to the Constitution in 1913.