Article 1, Section 3, Clauses 1 and 2
[Volume 2, Page 236]
Joseph Story, Commentaries on the Constitution 2:§§ 697, 699--7101833
§ 697. Another and most important advantage arising from this ingredient is, the great difference, which it creates in the elements of the two branches of the legislature; which constitutes a great desideratum in every practical division of the legislative power. In fact, this divison (as has been already intimated) is of little or no intrinsic value, unless it is so organised, that each can operate, as a real check upon undue and rash legislation. If each branch is substantially framed upon the same plan, the advantages of the division are shadowy and imaginative; the visions and speculations of the brain, and not the waking thoughts of statesmen, or patriots. It may be safely asserted, that for all the purposes of liberty, and security, of stable laws, and of solid institutions, of personal rights, and of the protection of property, a single branch is quite as good, as two, if their composition is the same, and their spirits and impulses the same. Each will act, as the other does; and each will be led by the same common influence of ambition, or intrigue, or passion, to the same disregard of the public interests, and the same indifference to, and prostration of private rights. It will only be a duplication of the evils of oppression and rashness, with a duplication of obstructions to effective redress. In this view, the organization of the senate becomes of inestimable value. It represents the voice, not of a district, but of a state; not of one state, but of all; not of the interest of one state, but of all; not of the chosen pursuits of a predominant population in one state, but of all the pursuits in all the states.
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§ 699. No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation. No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states. The interest, and passions, and prejudices of a district are thus checked by the influence of a whole state; the like interests, and passions, and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation. It may be thought, that this complicated system of checks may operate, in some instances, injuriously, as well as beneficially. But if it should occasionally work inequally, or injuriously, its general operation will be salutary and useful. The disease most incident to free governments is the facility and excess of lawmaking; and while it never can be the permanent interest of either branch to interpose any undue restraint upon the exercise of all fit legislation, a good law had better occasionally fail, rather than bad laws be multiplied with a heedless and mischievous frequency. Even reforms, to be safe, must, in general, be slow; and there can be little danger, that public opinion will not sufficiently stimulate all public bodies to changes, which are at once desirable, and politic. All experience proves, that the human mind is more eager and restless for changes, than tranquil and satisfied with existing institutions. Besides; the large states will always be able, by their power over the supplies, to defeat any unreasonable exertions of this prerogative by the smaller states.
§ 700. This reasoning, which theoretically seems entitled to great weight, has, in the progress of the government, been fully realized. It has not only been demonstrated, that the senate, in its actual organization, is well adopted to the exigencies of the nation; but that it is a most important and valuable part of the system, and the real balance-wheel, which adjusts, and regulates its movements. The other auxiliary provisions in the same clause, as to the [Volume 2, Page 237] mode of appointment and duration of office, will be found to conduce very largely to the same beneficial end.
§ 701. Secondly; the mode of appointment of the senators. They are to be chosen by the legislature of each state. Three schemes presented themselves, as to the mode of appointment; one was by the legislature of each state; another was by the people thereof; and a third was by the other branch of the national legislature, either directly, or out of a select nomination. The last scheme was proposed in the convention, in what was called the Virginia scheme, one of the resolutions, declaring, "that the members of the second branch (the senate) ought to be elected by those of the first (the house of representatives) out of a proper number nominated by the individual legislatures" (of the states.) It met, however, with no decided support, and was negatived, no state voting in its favour, nine states voting against it, and one being divided. The second scheme, of an election by the people in districts, or otherwise, seems to have met with as little favour. The first scheme, that of an election by the legislature, finally prevailed by an unanimous vote.
§ 702. The reasoning, by which this mode of appointment was supported, does not appear at large in any contemporary debates. But it may be gathered from the imperfect lights left us, that the main grounds were, that it would immediately connect the state governments with the national government, and thus harmonize the whole into one universal system; that it would introduce a powerful check upon rash legislation, in a manner not unlike that created by the different organizations of the house of commons, and the house of lords in Great Britain; and that it would increase public confidence by securing the national government from undue encroachments on the powers of the states. The Federalist notices the subject in the following brief and summary manner, which at once establishes the general consent to the arrangement, and the few objections, to which it was supposed to be obnoxious. "It is unnecessary to dilate on the appointment of senators by the state legislatures. Among the various modes, which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favouring a select appointment, and of giving to the state governments such an agency in the formation of the federal government, as must secure the authority of the former, and may form a convenient link between the two systems." This is very subdued praise; and indicates more doubts, than experience has, as yet, justified.
§ 703. The constitution has not provided for the manner, in which the choice shall be made by the state legislatures, whether by a joint, or by a concurrent vote; the latter is, where both branches form one assembly, and give a united vote numerically; the former is, where each branch gives a separate and independent vote. As each of the state legislatures now consists of two branches, this is a very important practical question. Generally, but not universally, the choice of senators is made by a concurrent vote. Another question might be suggested, whether the executive constitutes a part of the legislature for such a purpose, in cases where the state constitution gives him a qualified negative upon the laws. But this has been silently and universally settled against the executive participation in the appointment.
§ 704. Thirdly; the number of senators. Each state is entitled to two senators. It is obvious, that to ensure competent knowledge and ability to discharge all the functions entrusted to the senate, (of which more will be said hereafter,) it is indispensable, that it should consist of a number sufficiently large to ensure a sufficient variety of talents, experience, and practical skill, for the discharge of all their duties. The legislative power alone, for its enlightened and prudent exercise, requires (as has been already shown) no small share of patriotism, and knowledge, and ability. In proportion to the extent and variety of the labours of legislation, there should be members, who should share them, in order, that there may be a punctual and perfect performance of them. If the number be very small, there is danger, that some of the proper duties will be overlooked, or neglected, or imperfectly attended to. No human genius, or industry, is adequate to all the vast concerns of government, if it be not aided by the power and skill of numbers. The senate ought, therefore, on this account alone, to be somewhat numerous, though it need not, and indeed ought not, for other reasons, to be as numerous, as the house. Besides; numbers are important to give to the body a sufficient firmness to resist the influence, which the popular branch will ever be solicitous to exert over them. A very small body is more easy to be overawed, and intimidated, and controlled by external influences, than one of a reasonable size, embracing weight of character, and dignity of talents. Numbers alone, in many cases, confer power; and what is of not less importance, they present more resistance to corruption and intrigue. A body of five may be bribed, or overborne, when a body of fifty would be an irresistible barrier to usurpation.
§ 705. In addition to this consideration, it is desirable, that a state should not be wholly unrepresented in the national councils by mere accident, or by the temporary absence of its representative. If there be but a single representative, sickness or casualty may deprive the state of its vote on the most important occasions. It was on this account, (as well as others,) that the confederation entitled each state to send not less than two, nor more than seven delegates. In critical cases, too, it might be of great importance to have an opportunity of consulting with a colleague or colleagues, having a common interest and feeling for the state. And if it be not always in the strictest sense true, that in the multitude of counsel there is safety; there is a sufficient foundation in the infirmity of human nature to make it desirable to gain the advantage of the wisdom, and information, and reflection of other independent minds, not labouring under the suspicion of any unfavourable bias. These reasons may be presumed to have had their appropriate weight in the deliberations of the convention. If more than one representative of a state was to be admitted into the senate, the least practicable ascending number was that adopted. At that time a single representative [Volume 2, Page 238] of each state would have made the body too small for all the purposes of its institution, and all the objects before explained. It would have been composed but of thirteen; and supposing no absences, which could not ordinarily be calculated upon, seven would constitute a majority to decide all the measures. Twenty-six was not, at that period, too large a number for dignity, independence, wisdom, experience, and efficiency. And, at the present moment, when the states have grown to twenty-four, it is found, that forty-eight is a number quite small enough to perform the great national functions confided to it, and to embody the requisite skill and ability to meet the increased exigencies, and multiplied duties of the office. There is probably no legislative body on earth, whose duties are more various, and interesting, and important to the public welfare; and none, which calls for higher talents, and more comprehensive attainments, and more untiring industry, and integrity.
§ 706. In the convention there was a considerable diversity of opinion, as to the number, of which the senate should consist, and the apportionment of the number among the states. When the principle of an equality of representation was decided, the only question seems to have been, whether each state should have three, or two members. Three was rejected by a vote of nine states against one; and two inserted by a vote of nine states against one. It does not appear, that any proposition was ever entertained for a less number than two; and the silence of all public discussion on this subject seems to indicate, that the public opinion decidedly adopted the lowest number under the confederation to be the proper number, if an equality of representation was to be admitted into the senate. Whatever may be the future increase of states in the Union, it is scarcely probable, that the number will ever exceed that, which will fit the senate for the best performance of all its exalted functions. The British house of lords, at this moment, probably exceeds any number, which will ever belong to the American senate; and yet, notwithstanding the exaggerated declamation of a few ardent minds, the sober sense of the nation has never felt, that its number was either a burthen, or an infirmity inherent in the constitution.
§ 707. Fourthly; the term of service of the senators. It is for six years; although, as will be presently seen, another element in the composition of that body is, that one third of it is changed every two years.
What would be the most proper period of office for senators, was an inquiry, admitting of a still wider range of argument and opinion, than what would be the most proper for the members of the house of representatives. The subject was confessedly one full of intricacy, and doubt, upon which the wisest statesmen might well entertain very different views, and the best patriots might well ask for more information, without, in the slightest degree, bringing into question their integrity, their love of liberty, or their devotion to a republican government. If, in the present day, the progress of public opinion, and the lights of experience, furnish us with materials for a decided judgment, we ought to remember, that the question was then free to debate, and the fit conclusion was not easily to be seen, or justly to be measured. The problem to be solved by the great men of that day was, what organization of the legislative power, in a republican government, is best adapted to give permanency to the Union, and security to public liberty. In the convention, a great diversity of judgment was apparent among those, whose purity and patriotism were above all suspicion, and whose talents and public services were equally unquestionable. Various propositions were entertained; that the period of service of senators should be during good behaviour; for nine years; for seven years; for six years; for five years; for four years; for three years. All these propositions successively failed, except that for seven years, which was eventually abandoned for six years with the additional limitation, that one third should go out biennially.
§ 708. No inconsiderable array of objections was brought to bear against this prolonged term of service of the senators beyond that fixed for the members of the house of representatives, both in the convention, and before the people, when the constitution was under their advisement. Perhaps some of those objections still linger in the minds of many, who entertain a general jealousy of the powers of the Union; and who easily persuade themselves on that account, that power should frequently change hands in order to prevent corruption and tyranny. The perpetuity of a body (it has been said) is favourable to every stride it may be disposed to make towards extending its own power and influence in the government. Such a tendency is to be discovered in all bodies, however constituted, and to which no effectual check can be opposed, but frequent dissolutions and elections. The truth of this remark may be admitted; but there are many circumstances, which may justly vary its force and application. While, on the one hand, perpetuity in a body may be objectionable, on the other hand, continual fluctuations may be no less so, with reference to its duties and functions, its powers, and its efficiency. There are dangers arising from too great frequency in elections, as well as from too small. The path of true wisdom is probably best attained by a moderation, which avoids either extreme. It may be said of too much jealousy, and of too much confidence, that, when either is too freely admitted into public councils, it betrays like treason.
§ 709. It seems paradoxical to assert, (as has been already intimated,) but it is theoretically, as well as practically true, that a deep-felt responsibility is incompatible with great frequency of elections. Men can feel little interest in power, which slips away almost as soon, as it is grasped; and in measures, which they can scarcely do more than begin, without hoping to perfect. Few measures have an immediate and sensible operation, exactly according to their wisdom or policy. For the most part, they are dependent upon other measures, or upon time, and gradual intermixtures with the business of life, and the general institutions of society. The first superficial view may shock popular prejudices, or errors; while the ultimate results may be as admirable and excellent, as they are profound and distant. Who can take much interest in weaving a single thread into a measure, which becomes an evanescent quantity in the main fabric, whose texture requires constant skill, and many adaptations from the same hand, before its perfection can be secured, or even be prophesied?
§ 710. The objections to the senatorial term of office all resolve themselves into a single argument, however varied in its forms, or illustrations. That argument is, that political power is liable to be abused; and that the great security for public liberty consists in bringing home responsibility, and dependence in those, who are entrusted with office; and frequent expressions of public opinion in the choice of officers. If the argument is admitted in its most ample scope, it still leaves the question open to much discussion, what is the proper period of office, and how frequent the elections should be. This question must, in its nature, be complicated; and may admit, if it does not absolutely require, different answers, as applicable to different functionaries. Without wandering into ingenious speculations upon the topic in its most general form, our object will be to present the reasons, which have been, or may be relied on, to establish the sound policy and wisdom of the duration of office of the senators as fixed by the constitution. In so doing, it will become necessary to glance at some suggestions, which have already occurred in considering the organization of the other branch of the legislature. It may be proper, however, to premise, that the whole reasoning applies to a moderate duration only in office; and that it assumes, as its basis, the absolute necessity of short limitations of office, as constituting indispensable checks to power in all republican governments. It would almost be useless to descant upon such a basis, because it is universally admitted in the United States as a fundamental principle of all their constitutions of government.
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
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