FEDERALISTS V ANTI-FEDERALISTS PART ELEVEN: The Legislative Branch

we-the-people

The Federalists were convinced that they were designing a National Government in which the Legislative Branch would dominate the other two Branches of the Executive and the Judiciary. “The Legislature not only commands, the purse,” wrote Hamilton in Federalist #78, “but prescribes the rules by which the duties and rights of every citizen are to be regulated.”

In Federalist #62, Madison admitted that the strange mixture of votes-by-States and votes-by-Population in the National Legislature was the result of a compromise made at the Philadelphia Constitutional Convention in a “spirit of amity.” He explains that “the equal vote allowed to each State is at once a Constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty.” But the hopefully happy result of the compromise will be that “no law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.” Of course, he lamented, “it must be acknowledged that this complicated check on Legislation may in some instances be injurious as well as beneficial.”

And yet, as Madison points out in Federalist #64, there is wisdom in granting the States equality in voting at one level of Government, for the Government must be a weak one indeed if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole.”

Madison, writing in Federalist #62, pointed-out a possible upside to allowing State Legislatures to directly appoint congressmen to one of the two branches of the Federal Legislature (Senators were not popularly elected until after the 17th Amendment was ratified in 1913).  He wrote that State Legislatures, being composed of men considered learned and wise by their own community, might be more adept than the population-at-large in choosing the best qualified people to serve the State at the Federal level.

Writing in Federalist #59, Hamilton admitted that if the States had not been granted to right to appoint their own representatives to at least one of the houses of the new Federal Legislature,  “it would doubtless have been interpreted into an entire dereliction of the Federal principle; and would certainly have deprived the State Governments of that absolute safeguard which they will enjoy under this provision.”

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Hamilton appears, in Federalist #61, to unconsciously damn the Senate by praising the House. He commends the fact that House has the ability to completely turn-over its membership every two years. In this way, any bad culture it has developed won’t be passed down, as it would if just a fraction, say one-third, were replaced at each election.

The Anti-Federalists made a small noise that the number of Representatives in the House was not enough to ensure that they would properly represent their constituency back home, but their major complaint concerning the Legislature centered upon the Senate…

I get the impression, reading the between the lines of The Federalist Papers, that the Federalists thought of the Senate as a sort of democratic House Of Lords or Council Of Wisemen. The Anti-Federalist Brutus, writing 10 April 1788, felt that the Framers actually went beyond this fantasy, and was convinced that Senators “are designed to represent the aristocracy.”

Madison, in Federalist #62, argued that the Senate’s small size and relatively elite position in the Government was a great advantage for the country, for large assemblies, such as the House Of Representatives, tend to “yield to the impulse of sudden and violent passions” and are “seduced by factious leaders into intemperate and pernicious resolutions,” where as the Senate could serve to “correct this infirmity” of the House. Furthermore, since Senators hold their authority for longer tenure, they could possess greater firmness to purpose.

It is due to the “the mutability in the public councils” which arises “from a rapid succession of new members, however qualified” that there arises “the necessity of some stable institution in the government” to provide ballast and balance. Too much mutability in Government is a bad thing, wrote Madison, for… “it forfeits the respect and confidence of other nations and all the advantages connected with national character.”

Madison additionally argued that the Senate could help the inexperienced House to craft better legislation, since, obviously, those elected to the House Of Representatives could not be expected to be experienced in lawmaking, for “it is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust.”

In Federalist #75, when Madison lists the characteristics the House Members would NOT have, he implies that the longer-serving Senators WOULD.   These implied characteristics of the Senate include… “accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views;” [and] “decision, secrecy, and dispatch”

Brutus, in Essay Sixteen of 10 April 1788, complained, not only that “the term for which the Senate are to be chosen is in my judgement too long,” but that it was a huge mistake not to have Term-Limits. “No provision being made for rotation will, I conceive, be of dangerous consequence,” he wrote. “Men long in office are very apt to feel themselves independent and to form and pursue interests separate from those who appointed them.” […] Six years is a long period for a man to be absent from his home; it would have a tendency to ween him from his constituents.”

“It is probable that Senators once chosen for a State will, as the system now stands, continue in office for life,” he accurately predicts. “The office will be honorable if not lucrative. 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. 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.” […] “Every body acquainted with public affairs knows how difficult it is to remove from office a person who is long been in it.” […] “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.”

Hamilton countered simply in Federalist #72 that “there is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their [the people’s] opinion, to approbration and confidence”

Putting in a rare appearance in the written debate, John Jay returned with Federalist #64, contending that it is wise to have a Branch of the Legislature in which members are allowed to… “continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them.” The country will benefit from “their accumulating experience.”

Jay also thought that it was smart idea to only have 1/3rd of the Senate seats up for election at a time, for this will serve to… “obviate the inconvenience of periodically transferring those great affairs entirely to new men” […] “Uniformity and order, as well as a constant succession of offician information, will be preserved.”

Melancton Smith, in his speech arguing against the adoption of the Constitution on 25 June 1788, declared it to be “certainly inconsistent with the established principles of Republicanism, that the Senate should be a fixed and unchangeable body of men” and he maintained that Term Limits would NOT be an infringement of the Natural Rights of the People to choose their own representatives or leaders, contending that the proposed Constitution ALREADY allowed some limits to the popular will:  such as the fact that there are age requirements for office holders, as well citizenship requirements.

In Federalist #62, Madison brought up an indirect benefit of the Constitution, stating that, since there would be a “dissimilarity in the genius of the two bodies,” there would be an “improbability of sinister combinations” between the two Branches.

Brutus (in his 10 April 1788 speech) suggested that the State Legislatures should be able to RECALL their Senators and replace them with someone else, if an appointment to the Senate proved unsatisfactory. “It seems an evident dictate of reason” he said, “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 it according to his pleasure.”

But Melancton Smith felt that allowing State Legislatures to recall their Senators would make the Senators TOO bendable to the will of State Legislators, and that measures for the good of the Union as a whole would get short shrift.

Smith, however, remained skeptical that citizens representing a particular State would be able to objectively and intelligently pass laws for the good of entire nation. “Can the best men make laws for a people of whom they are entirely ignorant?” he asked. “Can you find men in Georgia who are acquainted with the situation of New Hampshire?”

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Some Constitutional opponents (though none of the major Anti-Federalist figures which I’ve read) thought that successful votes in the Senate should require a unanimous concurrence of all the States, or some lesser super-majority.

But Hamilton countered in Federalist #75 that “all provisions which require more than the majority of any body to its resolutions have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority.”

In Federalist #22, Hamilton warned that “tedious delays, continual negotiation and intrigue,” [and] “contemptible compromises of the public good” result when legislation logjams against overly restrictive rules of passage.

Furthermore, the paralysis of action which can attend a requirement for a super-majority of concordance can serve… “to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.” […] “The public business must, in some way or other go forward.”

BUT ON THE OTHER HAND…

Madison, meanwhile, was worried about the opposite problem: too much legislation…

In Federalist #62, Madison warns that “the facility and excess of lawmaking seem to be the disease to which our governments are most liable.” Continuing, he writes that “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” “or undergo such incessant changes that no man who know what the law is today, can guess what it will be tomorrow.”

Another ill effect of swiftly changing laws, wrote Madison, “is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change and can trace its consequences.”

“What prudent merchant,” he asked, “will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?”

Agreeing in Federalist #70, Hamilton observed that, “in the Legislature, promptitude of decision is oftener an evil than a benefit.”

SCATTERING THE REIGNS OF POWER

The Commonwealth Of Virginia was concerned that some overly ambitious types might scoop up SEVERAL Federal important positions and concentrate upon themselves power, prestige, and wealth. On 27 June 1788 the State proposed that… “the members of the Senate and House of Representatives shall be ineligible to and incapable of holding, any civil office under the authority of the United States during the time for which they shall respectively be elected.”

And afraid that the Federal Legislature might be tempted to vote itself an unjustifiable payraise, Virginia also proposed that… “the laws ascertaining the compensation of Senators and Representatives for their services, be postponed, in their operation, until after the election of representatives immediately succeeding the passing thereof.”

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