Article 1, Section 3, Clauses 1 and 2
Debate in New York Ratifying Convention24--25 June 1788Elliot 2:286--97, 301--9, 316--22
G. Livingston: First, they would possess legislative powers coëxtensive with those of the House of Representatives except with respect to originating revenue laws; which, however, they would have power to reject or amend, as in the case of other bills. Secondly, they would have an importance, even exceeding that of the representative house, as they would be composed of a smaller number, and possess more firmness and system. Thirdly, their consequence and dignity would still further transcend those of the other branch, from their longer continuance in office. These powers, Mr. Livingston contended, rendered the Senate a dangerous body.
He went on, in the second place, to enumerate and animadvert on the powers with which they were clothed in their judicial capacity, and in their capacity of council to the President, and in the forming of treaties. In the last place, as if too much power could not be given to this body, they were made, he said, a council of appointment, by whom ambassadors and other officers of state were to be appointed. These are the powers, continued he, which are vested in this small body of twenty-six men; in some cases, to be exercised by a bare quorum, which is fourteen; a majority of which number, again, is eight. What are the checks provided to balance this great mass of power? Our present Congress cannot serve longer than three years in six: they are at any time subject to recall. These and other checks were considered as necessary at a period which I choose to honor with the name of virtuous. Sir, I venerate the spirit with which every thing was done at the trying time in which the Confederation was formed. America had then a sufficiency of this virtue to resolve to resist perhaps the first nation in the universe, even unto bloodshed. What was her aim? Equal liberty and safety. What ideas had she of this equal liberty? Read them in her Articles of Confederation. True it is, sir, there are some powers wanted to make this glorious compact complete. But, sir, let us be cautious that we do not err more on the other hand, by giving power too profusely, when, perhaps, it will be too late to recall it. Consider, sir, the great influence which this body, armed at all points, will have. What will be the effect of this? Probably a security of their reëlection, as long as they please. Indeed, in my view, it will amount nearly to an appointment for life. What will be their situation in a federal town? Hallowed ground! Nothing so unclean as state laws to enter there, surrounded, as they will be, by an impenetrable wall of adamant and gold, the wealth of the whole country flowing into it. [Here a member, who did not fully understand, called out to know what WALL the gentleman meant; on which he turned, and replied, "A wall of gold--of adamant, which will flow in from all parts of the continent." At which flowing metaphor, a great laugh in the house.] The gentleman continued: Their attention to their various business will probably require their constant attendance. In this Eden will they reside with their families, distant from the observation of the people. In such a situation, men are apt to forget their dependence, lose their sympathy, and contract selfish habits. Factions are apt to be formed, if the body becomes permanent. The senators will associate only with men of their own class, and thus become strangers to the condition of the common people. They should not only return, and be obliged to live with the people, but return to their former rank of citizenship, both to revive their sense of dependence, and to gain a knowledge of the country. This will afford opportunity to bring forward the genius and information of the states, and will be a stimulus to acquire political abilities. It will be the means of diffusing a more general knowledge of the measures and spirit of the administration. These things will confirm the people's confidence in government. When they see those who have been high in office residing among them as private citizens, they will feel more forcibly that the government is of their own choice. The members of this branch having the idea impressed on their minds, that they are soon to return to the level whence the suffrages of the people raised them,--this good effect will follow: they will consider their interests as the same with those of their constituents, and that they legislate for themselves as well as others. They will not conceive themselves made to receive, enjoy, and rule, nor the people solely to earn, pay, and submit.
Mr. Chairman, I have endeavored, with as much perspicuity and candor as I am master of, shortly to state my objections to this clause. I would wish the committee to believe that they are not raised for the sake of opposition, but that I am very sincere in my sentiments in this important investigation. The Senate, as they are now constituted, have little or no check on them. Indeed, sir, too much is put into their hands. When we come to that part of the system which points out their powers, it will be the proper time to consider this subject more particularly.
I think, sir, we must relinquish the idea of safety under this government, if the time for services is not further limited, and the power of recall given to the state legislatures. I am strengthened in my opinion by an observation made yesterday, by an honorable member from New York, to this effect--"that there should be no fear of corruption of the members in the House of Representatives; especially as they are, in two years, to return to the body of the people." I therefore move that the committee adopt the following resolution, as an amendment to this clause:--
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"Resolved, That no person shall be eligible as a senator for more than six years in any term of twelve years, and that it shall be in the power of the legislatures of the several states to recall their senators, or either of them, and to elect others in their stead, to serve for the remainder of the time for which such senator or senators, so recalled, were appointed."
Hon. Mr. Lansing. I beg the indulgence of the committee, while I offer some reasons in support of the motion just made; in doing which, I shall confine myself to the point, and shall hear with attention, and examine with candor, the objections which may be opposed to it.
The representation of the United States, by the proposed system, is vested in two bodies. On the subject of one of these, we have debated several days, and now come to the organization and powers of the other. I believe it was undoubtedly the intention of the framers of this Constitution to make the lower house the proper, peculiar representative of the interests of the people; the Senate, of the sovereignty of the states.
Some very important powers are given to the latter, to be executed without the concurrence of the representative house. Now, if it was the design of the plan to make the Senate a kind of bulwark to the independence of the states, and a check to the encroachments of the general government, certainly the members of this body ought to be peculiarly under the control, and in strict subordination to the state who delegated them. In proportion to their want of dependence, they will lose their respect for the power from whom they receive their existence, and, consequently, will disregard the great object for which they are instituted. The idea of rotation has been taken from the articles of the old Confederation. It has thus far, in my opinion, operated with great advantage. The power of recall, too, has been an excellent check, though it has, in fact, never been exercised. The thing is of so delicate a nature, that few men will step forward to move a recall, unless there is some strong ground for it.
Sir, I am informed by gentlemen who have been conversant in public affairs, and who have had seats in Congress, that there have been, at different times, violent parties in that body--an evil that a change of members has contributed, more than any other thing, to remedy. If, therefore, the power of recall should be never exercised, if it should have no other force than that of a check to the designs of the bad, and to destroy party spirit, certainly no harm, but much good, may result from adopting the amendment. If my information be true, there have been parties in Congress which would have continued to this day, if the members had not been removed. No inconvenience can follow from placing the powers of the Senate on such a foundation as to make them feel their dependence. It is only a check calculated to make them more attentive to the objects for which they were appointed. Sir, I would ask, Is there no danger that the members of the Senate will sacrifice the interest of their state to their own private views? Every man in the United States ought to look with anxious concern to that body. Their number is so exceedingly small, that they may easily feel their interests distinct from those of the community. This smallness of number also renders them subject to a variety of accidents, that may be of the highest disadvantage. If one of the members is sick, or if one or both are prevented occasionally from attending, who are to take care of the interests of their state?
Sir, we have frequently observed that deputies have been appointed for certain purposes, who have not punctually attended to them, when it was necessary. Their private concerns may often require their presence at home. In what manner is this evil to be corrected? The amendment provides a remedy. It is the only thing which can give the states a control over the Senate. It will be said, there is a power in Congress to compel the attendance of absent members; but will the members from the other states be solicitous to compel such attendance, except to answer some particular view, or promote some interest of their own? If it be the object of the senators to protect the sovereignty of their several states, and if, at any time, it be the design of the other states to make encroachments on the sovereignty of any one state, will it be for their interest to compel the members from this state to attend, in order to oppose and check them? This would be strange policy indeed.
A number of other reasons might be adduced on this point; but those which have been advanced are sufficient, I imagine, to convince the committee that such a provision is necessary and proper. If it be not adopted, the interests of any one state may be easily sacrificed to the ambition of the others, or to the private advantage of individuals.
Mr. R. R. Livingston. The amendment appears to have in view two objects--that a rotation shall be established in the Senate, and that its members shall be subject to recall by the state legislatures. It is not contended that six years are too long a time for the senators to remain in office. Indeed, this cannot be objected to, when the purposes for which this body is instituted are considered. They are to form treaties with foreign nations. This requires a comprehensive knowledge of foreign politics, and an extensive acquaintance with characters, whom, in this capacity, they have to negotiate with, together with such an intimate conception of our best interests, relative to foreign powers, as can only be derived from much experience in this business. What singular policy, to cut off the hand which has just qualified itself for action! But, says the gentleman, as they are the representatives of the states, those states have a control. Will this principle hold good? The members of the lower house are the representatives of the people. Have the people any power to recall them? What would be the tendency of the power contended for? Clearly this: The state legislatures, being frequently subject to factious and irregular passions, may be unjustly disaffected and discontented with their delegates; and a senator may be appointed one day and recalled the next. This would be a source of endless confusion. The Senate are indeed designed to represent the state governments; but they are also the representatives of the United States, and are not to consult the interest of any one state alone, but that of the Union. This could never be done, if there was a power of recall; for sometimes it happens that small sacrifices are absolutely indispensable for the good and safety of the confederacy; but, if a senator should presume to consent to these sacrifices, he would be immediately recalled. This reasoning turns on the idea that a state, not being able to comprehend the interest of the whole, would, in all instances, adhere to her own, even to the hazard of the Union.
I should disapprove of this amendment, because it would open so wide a door for faction and intrigue, and [Volume 2, Page 223] afford such scope for the arts of an evil ambition. A man might go to the Senate with an incorruptible integrity, and the strongest attachment to the interest of his state. But if he deviated, in the least degree, from the line which a prevailing party in a popular assembly had marked for him, he would be immediately recalled. Under these circumstances, how easy would it be for an ambitious, factious demagogue to misrepresent him, to distort the features of his character, and give a false color to his conduct! How easy for such a man to impose upon the public, and influence them to recall and disgrace their faithful delegate! The general government may find it necessary to do many things which some states might never be willing to consent to. Suppose Congress should enter into a war to protect the fisheries, or any of the northern interests; the Southern States, loaded with their share of the burden which it would be necessary to impose, would condemn their representatives in the Senate for acquiescing in such a measure. There are a thousand things which an honest man might be obliged to do, from a conviction that it would be for the general good, which would give great dissatisfaction to his constituents.
Sir, all the arguments drawn from an imaginary prospect of corruption have little weight with me. From what source is this corruption to be derived? One gentleman tells you that this dreadful Senate is to be surrounded by a wall of adamant--of gold, and that this wall is to be a liquid one, and to flow in from all quarters. Such arguments as these seem rather the dreamings of a distempered fancy, than the cool, rational deductions of a deliberate mind. Whence is this corruption to be derived? Are the people to corrupt the senators with their own gold? Is bribery to enter the federal city, with the amazing influx of adamant the gentleman so pathetically contemplates? Are not Congress to publish, from time to time, an account of their receipts and expenditures? Can there be any appropriation of money by the Senate, without the concurrence of the Assembly? And can we suppose that a majority of both houses can be corrupted? At this rate we must suppose a miracle indeed.
But to return: The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights. This rotation is an absurd species of ostracism--a mode of proscribing eminent merit, and banishing from stations of trust those who have filled them with the greatest faithfulness. Besides, it takes away the strongest stimulus to public virtue--the hope of honors and rewards. The acquisition of abilities is hardly worth the trouble, unless one is to enjoy the satisfaction of employing them for the good of one's country. We all know that experience is indispensably necessary to good government. Shall we, then, drive experience into obscurity? I repeat that this is an absolute abridgment of the people's rights.
As to the Senate's rendering themselves perpetual, or establishing such a power as to prevent their being removed, it appears to me chimerical. Can they make interest with their legislatures, who are themselves varying every year, sufficient for such a purpose? Can we suppose two senators will be able to corrupt the whole legislature of this state? The idea, I say, is chimerical. The thing is impossible.
Hon. Mr. Lansing. The objects of this amendment are, first, to place the senators in such a situation of dependence on their several state legislatures, as will induce them to pay a constant regard to the good of their constituents; secondly, to oblige them to return, at certain periods, to their fellow-citizens, that, by mingling with the people, they may recover that knowledge of their interests, and revive that sympathy with their feelings, which power and an exalted station are too apt to efface from the minds of rulers.
It has been urged that the senators should be acquainted with the interests of the states in relation to each other, and to foreign powers, and that they should remain in office, in order to acquire extensive political information. If these were the only objects, the argument would extend to the rendering their dignity perpetual--an idea which probably none of the gentlemen will consent to; but, if one third of the senators go out every two years, cannot those who succeed them acquire information from the remaining members, with respect to the relative interests of the states? It is to be presumed that the Senate will be composed of the best-informed men, and that no such men will be incapable of comprehending the interests of the states either singly or collectively. If it be the design of representation that the sense and spirit of the people's interests and feelings should be carried into the government, it is obvious that this design can be accomplished in no way so perfectly as by obliging our rulers, at certain periods, to relinquish their offices and rank. The people cannot be represented by men who are perpetually separated from them.
It is asked, Why not place the senators in the same situation as the representatives? or, Why not give the people a power of recall? Because, sir, this is impracticable, and contrary to the first principles of representative government. There is no regular way of collecting the people's sentiments. But a power in the state legislatures to recall their senators, is simple and easy, and will be attended with the highest advantages.
An honorable gentleman, who has spoken largely on the preceding question, has acknowledged that a variety of views, and great diversity of sentiment, prevailed in the federal Convention; that particularly there was a difference of interest between the navigating and non-navigating states. The same opposition of interests will probably ever remain; and the members of Congress will retain the same disposition to regard as their principal object the genuine good of their respective states. If they do not, if they presume to sacrifice the fundamental advantages of their state, they betray the confidence reposed in them, and violate their duty. I wish gentlemen would uniformly adhere to the distinction between the grand design of the House of Representatives and that of the Senate. Does not one represent the individuals, the people of a state, and the other its collective sovereignty? This distinction is properly noticed, when it is convenient and useful to the gentlemen's argument; but when it stands in their way, it is easily passed by and disregarded.[Volume 2, Page 224]
Sir, it is true there have been no instances of the success of corruption under the old Confederation; and may not this be attributed to the power of recall, which has existed from its first formation? It has operated effectually, though silently. It has never been exercised, because no great occasion has offered. The power has by no means proved a discouragement to individuals, in serving their country. A seat in Congress has always been considered a distinguished honor, and a favorite object of ambition: I believe no public station has been sought with more avidity. If this power has existed for so many years, and through so many scenes of difficulty and danger, without being exerted, may it not be rationally presumed that it never will be put in execution, unless the indispensable interest of a state shall require it? I am perfectly convinced that, in many emergencies, mutual concessions are necessary and proper; and that, in some instances, the smaller interests of the states should be sacrificed to great national objects. But when a delegate makes such sacrifices as tend to political destruction, or to reduce sovereignty to subordination, his state ought to have the power of defeating his design, and reverting to the people. It is observed, that the appropriation of money is not in the power of the Senate alone; but, sir, the exercise of certain powers, which constitutionally and necessarily involve the disposal of money, belongs to the Senate: they have, therefore, a right of disposing of the property of the United States. If the Senate declare war, the lower house must furnish the supplies.
It is further objected to this amendment, that it will restrain the people from choosing those who are most deserving of their suffrages, and will thus be an abridgment of their rights. I cannot suppose this last inference naturally follows. The rights of the people will be best supported by checking, at a certain point, the current of popular favor, and preventing the establishment of an influence which may leave to elections little more than the form of freedom. The Constitution of this state says, that no man shall hold the office of sheriff or coroner beyond a certain period. Does any one imagine that the rights of the people are infringed by this provision? The gentlemen, in their reasoning on the subject of corruption, seem to set aside experience, and to consider the Americans as exempt from the common vices and frailties of human nature. It is unnecessary to particularize the numerous ways in which public bodies are accessible to corruption. The poison always finds a channel, and never wants an object. Scruples would be impertinent, arguments would be in vain, checks would be useless, if we were certain our rulers would be good men; but for the virtuous government is not instituted: its object is to restrain and punish vice; and all free constitutions are formed with two views--to deter the governed from crime, and the governors from tyranny.
The Chancellor [Robert R. Livingston] rose only to correct an error which had appeared in the course of the debate. It had been intimated that the Senate had a right to declare war. This was a mistake. The power could not be exercised except by the whole legislature; nor, indeed, had the Senate a right alone to appoint a single federal officer. The President, with the advice and consent of the Senate, made these appointments. He believed that the power of recall would have a tendency to bind the senators too strongly to the interests of their respective states; and for that reason he objected to it. It will destroy, said he, that spirit of independence and free deliberation which ought to influence the senator. Whenever the interests of a state clash with those of the Union, it will oblige him to sacrifice the great objects of his appointment to local attachments. He will be subjected to all the caprices, the parties, the narrow views, and illiberal politics, of the state governments, and become a slave to the ambitions and factions at home.
These observations, continued the chancellor, are obvious inferences from a principle which has been already explained--that the state legislatures will be ever more or less incapable of comprehending the interests of the Union. They cannot perceive the propriety, or feel the necessity, of certain great expedients in politics, which may seem, in their immediate operation, to injure the private interests of the members.
Hon. R. Morris. I am happy, Mr. Chairman, to perceive that it is a principle on all sides conceded, and adopted by this committee, that an energetic federal government is essential to the preservation of our Union; and that a constitution for these states ought to unite firmness and vigor in the national operations, with the full security of our rights and liberties. It is our business, then, to examine whether the proposed Constitution be agreeable to this description. I am pretty well convinced that, on this examination, the system will be found capable of accomplishing these purposes; but if the event of our deliberations should be different, I hope we shall not adopt any amendments which will defeat their own design. Let us be cautious, that, in our eager pursuit of the great object, we do not run into those errors which disfigure the old Confederation. We may render useless all our provisions for security, by urging and straining them too far: we may apply checks which may have a direct tendency to impede the most salutary operations of the government, and ultimately deprive it of the strength and vigor necessary to preserve our national freedom. I fear the proposed amendment, were it adopted, would have such an effect. My reason has been anticipated by my honorable colleague. It is, that it would create a slavish subjection to the contracted views and prevailing factions of the state governments, or, in its exercise, would deprive the national council of its members in many difficult emergencies, and thus throw the Union into disorder, take away the means of defence, and expose it an easy prey to its enemies.
The gentlemen, in all their zeal for liberty, do not seem to see the danger to be apprehended from foreign power; they consider that all the danger is derived from a fancied tyrannical propensity in their rulers; and against this they are content to provide. I am sorry their views are so confined and partial. An extensive and liberal survey of the subject should teach us that vigor in the government is as necessary to the protection of freedom, as the warmest attachment to liberty in the governors. Sir, if the proposed amendment had been originally incorporated in the Constitution, [Volume 2, Page 225] I should consider it as a capital objection: I believe it would have ultimately defeated the very design of our Union.
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Hon. Mr. Hamilton. In the commencement of a revolution which received its birth from the usurpations of tyranny, nothing was more natural than that the public mind should be influenced by an extreme spirit of jealousy. To resist these encroachments, and to nourish this spirit, was the great object of all our public and private institutions. The zeal for liberty became predominant and excessive. In forming our Confederation, this passion alone seemed to actuate us, and we appear to have had no other view than to secure ourselves from despotism. The object certainly was a valuable one, and deserved our utmost attention; but, sir, there is another object, equally important, and which our enthusiasm rendered us little capable of regarding: I mean a principle of strength and stability in the organization of our government, and vigor in its operations. This purpose could never be accomplished but by the establishment of some select body, formed particularly upon this principle. There are few positions more demonstrable than that there should be, in every republic, some permanent body to correct the prejudices, check the intemperate passions, and regulate the fluctuations, of a popular assembly. It is evident that a body instituted for these purposes must be so formed as to exclude, as much as possible, from its own character, those infirmities, and that mutability, which it is designed to remedy. It is, therefore, necessary that it should be small, that it should hold its authority during a considerable period, and that it should have such an independence in the exercise of its powers, as will divest it, as much as possible, of local prejudices. It should be so formed as to be the centre of political knowledge, to pursue always a steady line of conduct, and to reduce every irregular propensity to system. Without this establishment, we may make experiments without end, but shall never have an efficient government.
It is an unquestionable truth, that the body of the people, in every country, desire sincerely its prosperity; but it is equally unquestionable, that they do not possess the discernment and stability necessary for systematic government. To deny that they are frequently led into the grossest errors by misinformation and passion, would be a flattery which their own good sense must despise. That branch of administration, especially, which involves our political relation with foreign states, a community will ever be incompetent to. These truths are not often held up in public assemblies; but they cannot be unknown to any who hear me.
From these principles it follows that there ought to be two distinct bodies in our government--one which shall be immediately constituted by and peculiarly represent the people, and possess all the popular features; another formed upon the principle and for the purposes before explained. Such considerations as these induced the Convention who formed your state Constitution to institute a Senate upon the present plan. The history of ancient and modern republics had taught them that many of the evils which these republics suffered arose from the want of a certain balance and mutual control indispensable to a wise administration; they were convinced that popular assemblies were frequently misguided by ignorance, by sudden impulses, and the intrigues of ambitious men, and that some firm barrier against these operations was necessary: they, therefore, instituted your Senate, and the benefits we have experienced have fully justified their conceptions.
Now, sir, what is the tendency of the proposed amendment? To take away the stability of government by depriving the Senate of its permanency; to make this body subject to the same weakness and prejudices which are incident to popular assemblies, and which it was instituted to correct; and, by thus assimilating the complexion of the two branches, destroy the balance between them. The amendment will render the senator a slave to all the capricious humors among the people. It will probably be here suggested, that the legislatures, not the people, are to have the power to recall. Without attempting to prove that the legislatures must be, in a great degree, the image of the multitude, in respect to federal affairs, and that the same prejudices and factions will prevail, I insist that, in whatever body the power of recall is vested, the senator will perpetually feel himself in such a state of vassalage and dependence, that he never can possess that firmness which is necessary to the discharge of his great duty to the Union.
Gentlemen, in their reasoning, have placed the interests of the several states, and those of the United States, in contrast; this is not a fair view of the subject; they must necessarily be involved in each other. What we apprehend is, that some sinister prejudice, or some prevailing passion, may assume the form of a genuine interest. The influence of these is as powerful as the most permanent conviction of the public good; and against this influence we ought to provide. The local interests of a state ought, in every case, to give way to the interests of the Union; for when a sacrifice of one or the other is necessary, the former becomes only an apparent partial interest, and should yield, on the principle that the small good ought never to oppose the great one. When you assemble from your several counties in the legislature, were every member to be guided only by the apparent interest of his country, government would be impracticable. There must be a perpetual accommodation and sacrifice of local advantage to general expediency; but the spirit of a mere popular assembly would rarely be actuated by this important principle. It is therefore absolutely necessary that the Senate should be so formed as to be unbiased by false conceptions of the real interests or undue attachment to the apparent good of their several states.
Gentlemen indulge too many unreasonable apprehensions of danger to the state governments; they seem to suppose that, the moment you put men into a national council, they become corrupt and tyrannical, and lose all affection for their fellow-citizens. But can we imagine that the senators will ever be so insensible of their own advantage as to sacrifice the genuine interest of their constituents? The state governments are essentially necessary to the form and spirit of the general system. As long, therefore, as Congress have a full conviction of this necessity, [Volume 2, Page 226] they must, even upon principles purely national, have as firm an attachment to the one as to the other. This conviction can never leave them, unless they become madmen. While the Constitution continues to be read, and its principles known, the states must, by every rational man, be considered as essential, component parts of the Union; and therefore the idea of sacrificing the former to the latter is wholly inadmissible.
The objectors do not advert to the natural strength and resources of state governments, which will ever give them an important superiority over the general government. If we compare the nature of their different powers, or the means of popular influence which each possesses, we shall find the advantage entirely on the side of the states. This consideration, important as it is, seems to have been little attended to. The aggregate number of representatives throughout the states may be two thousand. The personal influence will, therefore, be proportionably more extensive than that of one or two hundred men in Congress. The state establishments of civil and military officers of every description, infinitely surpassing in number any possible correspondent establishments in the general government, will create such an extent and complication of attachments, as will ever secure the predilection and support of the people. Whenever, therefore, Congress shall meditate any infringement of the state constitutions, the great body of the people will naturally take part with their domestic representatives. Can the general government withstand such a united opposition? Will the people suffer themselves to be stripped of their privileges? Will they suffer their legislatures to be reduced to a shadow and name? The idea is shocking to common sense.
From the circumstances already explained, and many others which might be mentioned, results a complicated, irresistible check, which must ever support the existence and importance of the state governments. The danger, if any exists, flows from an opposite source. The probable evil is, that the general government will be too dependent on the state legislatures, too much governed by their prejudices, and too obsequious to their humors; that the states, with every power in their hands, will make encroachments on the national authority, till the Union is weakened and dissolved.
Every member must have been struck with an observation of a gentleman from Albany. Do what you will, says he, local prejudices and opinions will go into the government. What! shall we then form a constitution to cherish and strengthen these prejudices? Shall we confirm the distemper, instead of remedying it? It is undeniable that there must be a control somewhere. Either the general interest is to control the particular interests, or the contrary. If the former, then certainly the government ought to be so framed, as to render the power of control efficient to all intents and purposes; if the latter, a striking absurdity follows: the controlling powers must be as numerous as the varying interests, and the operations of government must therefore cease; for the moment you accommodate these different interests, which is the only way to set the government in motion, you establish a general controlling power. Thus, whatever constitutional provisions are made to the contrary, every government will be at last driven to the necessity of subjecting the partial to the universal interest. The gentlemen ought always, in their reasoning, to distinguish between the real, genuine good of a state, and the opinions and prejudices which may prevail respecting it. The latter may be opposed to the general good, and consequently ought to be sacrificed; the former is so involved in it, that it never can be sacrificed. Sir, the main design of the Convention, in forming the Senate, was to prevent fluctuations and cabals. With this view, they made that body small, and to exist for a considerable period. Have they executed this design too far? The senators are to serve six years. This is only two years longer than the senators of this state hold their places. One third of the members are to go out every two years; and in six, the whole body will be changed. Prior to the revolution, the representatives in the several colonies were elected for different periods--for three years, for seven years, &c. Were those bodies ever considered as incapable of representing the people, or as too independent of them? There is one circumstance which will have a tendency to increase the dependence of the senators on the states, in proportion to the duration of their appointments. As the state legislatures are in continual fluctuation, the senator will have more attachments to form, and consequently a greater difficulty of maintaining his place, than one of shorter duration. He will, therefore, be more cautious and industrious to suit his conduct to the wishes of his constituents.
Sir, when you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining a reëlection will be a uniform attachment to the interests of their several states.
The gentlemen, to support their amendment, have observed that the power to recall, under the old government, has never been exercised. There is no reasoning in this. The experience of a few years, under peculiar circumstances, can afford no probable security that it never will be carried into execution with unhappy effects. A seat in Congress has been less an object of ambition; and the arts of intrigue, consequently, have been less practised. Indeed, it has been difficult to find men who were willing to suffer the mortifications to which so feeble a government, and so dependent a station, exposed them.
Sir, if you consider but a moment the purposes for which the Senate was instituted, and the nature of the business which they are to transact, you will see the necessity of giving them duration. They, together with the President, are to manage all our concerns with foreign nations; they must understand all their interests, and their political systems. This knowledge is not soon acquired; but a very small part is gained in the closet. Is it desirable, then, that new and unqualified members should be continually thrown into that body? When public bodies are engaged in the exercise of general powers, you cannot judge of the propriety of their conduct, but from the result of their [Volume 2, Page 227] systems. They may be forming plans which required time and diligence to bring to maturity. It is necessary, therefore, that they should have a considerable and fixed duration, that they may make their calculations accordingly. If they are to be perpetually fluctuating, they can never have that responsibility which is so important in republican governments. In bodies subject to frequent changes, great political plans must be conducted by members in succession. A single assembly can have but a partial agency in them, and, consequently, cannot properly be answerable for the final event. Considering the Senate, therefore, with a view to responsibility, duration is a very interesting and essential quality. There is another view in which duration in the Senate appears necessary. A government changeable in its policy must soon lose its sense of national character, and forfeit the respect of foreigners. Senators will not be solicitous for the reputation of public measures, in which they had but a temporary concern, and will feel lightly the burden of public disapprobation, in proportion to the number of those who partake of the censure. Our political rivals will ever consider our mutable counsels as evidence of deficient wisdom, and will be little apprehensive of our arriving at any exalted station in the scale of power.
Such are the internal and external disadvantages which would result from the principle contended for. Were it admitted, I am fully persuaded, sir, that prejudices would govern the public deliberations, and passions rage in the counsels of the Union. If it were necessary, I could illustrate my subject by historical facts. I could travel through an extensive field of detail, and demonstrate that wherever the fatal principle, of the head suffering the control of the members, has operated, it has proved a fruitful source of commotions and disorder.
This, sir, is the first fair opportunity that has been offered of deliberately correcting the errors in government. Instability has been a prominent and very defective feature in most republican systems. It is the first to be seen, and the last to be lamented, by a philosophical inquirer. It has operated most banefully in our infant republics. It is necessary that we apply an immediate remedy, and eradicate the poisonous principle from our government. If this be not done, sir, we shall feel, and posterity will be convulsed by, a painful malady.
The Hon. Mr. Lansing said, he had very closely attended to the arguments which had been advanced on the subject; but, however strongly and ingenuously they had been urged, he confessed they had not had a tendency to change his sentiments. The principles which the gentleman had laid down, with respect to a division of the legislature, and the necessity of a balance, he admitted. If he had been inclined to dispute the expediency of two distinct branches in the government, he should not now be taking up the time of the committee in a contest respecting the form and powers of these two branches. He granted, therefore, that there ought to be two houses, to afford a mutual check. The gentleman seemed disposed to render the federal government entirely independent, and to prevent the possibility of its ever being influenced by the interests of the several states; and yet he had acknowledged them to be necessary, fundamental parts of the system. Where, then, was the check? The states, having no constitutional control, would soon be found unnecessary and useless, and would be gradually extinguished. When this took place, the people would lose their liberties, and be reduced from the condition of citizens to that of subjects. It had been remarked, that there were more than two thousand state representatives throughout the Union, and that the number of civil and military officers on the state establishments would far exceed those of the United States; and these circumstances, it has been said, would create such an attachment and dependence on the state governments, as would give them a superiority over the general government. But, said he, were the states arrayed in all the powers of sovereignty? Could they maintain armies? Had they the unlimited power of taxation? There was no comparison, he said, between the powers of the two governments. The circumstances the gentleman had enumerated, which seemed to be in favor of the states, only proved that the people would be under some advantages to discern the encroachments of Congress, and to take the alarm; but what would this signify? The gentleman did not mean that his principles should encourage rebellion: what other resource had they? None, but to wait patiently till the long terms of their senators were expired, and then elect other men. All the boasted advantages enjoyed by the states were finally reduced to this. The gentleman had spoken of an enmity which would subsist between the general and state governments: what, then, would be the situation of both? His wish, he said, was to prevent any enmity, by giving the states a constitutional and peaceable mode of checking maladministration, by recalling their senators, and not driving them into hostilities, in order to obtain redress.
The Hon. Mr. Smith observed, that, when he had the honor to address the committee on the preceding question of the representation, he stated to them his idea, that it would be impossible, under the new Constitution as it stands, to have such a genuine representation of the people as would itself form a check in the government; that therefore it became our duty to provide checks of another nature. The honorable gentleman from New York had made many pertinent observations on the propriety of giving stability to the Senate. The general principles laid down, he thought, were just. He only disputed the inferences drawn from them, and their application to the proposed amendments. The only question was, whether the checks attempted in the amendment were incompatible with that stability which, he acknowledged, was essential to good government. Mr. Smith said he did not rise to enter at present into the debate at large. Indisposition compelled him to beg leave of the committee to defer what he had to offer to them till the succeeding day.
The Hon. Mr. Hamilton. There are two objects in forming systems of government--safety for the people, and energy in the administration. When these objects are united, the certain tendency of the system will be to the public welfare. If the latter object be neglected, the people's [Volume 2, Page 228] security will be as certainly sacrificed as by disregarding the former. Good constitutions are formed upon a comparison of the liberty of the individual with the strength of government: if the tone of either be too high, the other will be weakened too much. It is the happiest possible mode of conciliating these objects, to institute one branch peculiarly endowed with sensibility, another with knowledge and firmness. Through the opposition and mutual control of these bodies, the government will reach, in its operations, the perfect balance between liberty and power. The arguments of the gentlemen chiefly apply to the former branch--the House of Representatives. If they will calmly consider the different nature of the two branches, they will see that the reasoning which justly applies to the representative house, will go to destroy the essential qualities of the Senate. If the former is calculated perfectly upon the principles of caution, why should you impose the same principles upon the latter, which is designed for a different operation? Gentlemen, while they discover a laudable anxiety for the safety of the people, do not attend to the important distinction I have drawn. We have it constantly held up to us, that, as it is our chief duty to guard against tyranny, it is our policy to form all the branches of government for this purpose.
Sir, it is a truth sufficiently illustrated by experience, that when the people act by their representatives, they are commonly irresistible. The gentleman admits the position, that stability is essential to the government, and yet enforces principles which, if true, ought to banish stability from the system. The gentleman observes, that there is a fallacy in my reasoning, and informs us that the legislatures of the states, not the people, are to appoint the senators. Does he reflect that they are the immediate agents of the people, that they are so constituted as to feel all their prejudices and passions, and to be governed, in a great degree, by their misapprehensions? Experience must have taught him the truth of this. Look through their history: what factions have arisen from the most trifling causes! What intrigues have been practised for the most illiberal purposes! Is not the state of Rhode Island, at this moment, struggling under difficulties and distresses, for having been led blindly by the spirit of the multitude? What is her legislature but the picture of a mob? In this state, we have a senate, possessed of the proper qualities of a permanent body. Virginia, Maryland, and a few other states, are in the same situation. The rest are either governed by a single democratic assembly, or have a senate constituted entirely upon democratic principles. These have been more or less embroiled in factions, and have generally been the image and echo of the multitude. It is difficult to reason on this point, without touching on certain delicate chords. I could refer you to periods and conjunctures when the people have been governed by improper passions, and led by factious and designing men. I could show that the same passions have infected their representatives. Let us beware that we do not make the state legislatures a vehicle in which the evil humors may be conveyed into the national system. To prevent this, it is necessary that the Senate should be so formed, as in some measure to check the state governments, and preclude the communication of the false impressions which they receive from the people. It has been often repeated, that the legislatures of the states can have only a partial and confined view of national affairs; that they can form no proper estimate of great objects which are not in the sphere of their interests. The observation of the gentleman, therefore, cannot take off the force of argument.
Sir, the senators will constantly be attended with a reflection, that their future existence is absolutely in the power of the states. Will not this form a powerful check? It is a reflection which applies closely to their feelings and interests; and no candid man, who thinks deliberately, will deny that it would be alone a sufficient check. The legislatures are to provide the mode of electing the President, and must have a great influence over the electors. Indeed, they convey their influence, through a thousand channels, into the general government. Gentlemen have endeavored to show that there will be no clashing of local and general interests: they do not seem to have sufficiently considered the subject. We have, in this state, a duty of sixpence per pound on salt, and it operates lightly and with advantage; but such a duty would be very burdensome to some of the states. If Congress should, at any time, find it convenient to impose a salt tax, would it not be opposed by the Eastern States? Being themselves incapable of feeling the necessity of the measure, they could only feel its apparent injustice. Would it be wise to give the New England States a power to defeat this measure, by recalling their senators who may be engaged for it? I beg the gentlemen once more to attend to the distinction between the real and the apparent interests of the states. I admit that the aggregate of individuals constitute the government; yet every state is not the government; every petty district is not the government. Sir, in our state legislatures, a compromise is frequently necessary between the interests of counties: the same must happen, in the general government, between states. In this, the few must yield to the many; or, in other words, the particular must be sacrificed to the general interest. If the members of Congress are too dependent on the state legislatures, they will be eternally forming secret combinations from local views. This is reasoning from the plainest principles. Their interest is interwoven with their dependence, and they will necessarily yield to the impression of their situation. Those who have been in Congress have seen these operations. The first question has been, How will such a measure affect my constituents, and, consequently, how will the part I take affect my reëlection? This consideration may be in some degree proper; but to be dependent from day to day, and to have the idea perpetually present, would be the source of numerous evils. Six years, sir, is a period short enough for a proper degree of dependence. Let us consider the peculiar state of this body, and see under what impressions they will act. One third of them are to go out at the end of two years, two thirds at four years, and the whole at six years. When one year is elapsed, there is a number who are to hold their places for one year, others for three, and others for five years. Thus there will not only be a constant and frequent change of members, but there will be some whose office is near the point of expiration, and who, from this circumstance, [Volume 2, Page 229] will have a lively sense of their dependence. The biennial change of members is an excellent invention for increasing the difficulty of combination. Any scheme of usurpation will lose, every two years, a number of its oldest advocates, and their places will be supplied by an equal number of new, unaccommodating, and virtuous men. When two principles are equally important, we ought, if possible, to reconcile them, and sacrifice neither. We think that safety and permanency in this government are completely reconcilable. The state governments will have, from the causes I have described, a sufficient influence over the Senate, without the check for which the gentlemen contend.
It has been remarked, that there is an inconsistency in our admitting that the equal vote in the Senate was given to secure the rights of the states, and at the same time holding up the idea that their interests should be sacrificed to those of the Union. But the committee certainly perceive the distinction between the rights of a state and its interests. The rights of a state are defined by the Constitution, and cannot be invaded without a violation of it; but the interests of a state have no connection with the Constitution, and may be, in a thousand instances, constitutionally sacrificed. A uniform tax is perfectly constitutional; and yet it may operate oppressively upon certain members of the Union. The gentlemen are afraid that the state governments will be abolished. But, sir, their existence does not depend upon the laws of the United States. Congress can no more abolish the state governments, than they can dissolve the Union. The whole Constitution is repugnant to it, and yet the gentlemen would introduce an additional useless provision against it. It is proper that the influence of the states should prevail to a certain extent. But shall the individual states be the judges how far? Shall an unlimited power be left them to determine in their own favor? The gentlemen go into the extreme: instead of a wise government, they would form a fantastical Utopia. But, sir, while they give it a plausible, popular shape, they would render it impracticable. Much has been said about factions. As far as my observation has extended, factions in Congress have arisen from attachment to state prejudices. We are attempting, by this Constitution, to abolish factions, and to unite all parties for the general welfare. That a man should have the power, in private life, of recalling his agent, is proper; because, in the business in which he is engaged, he has no other object but to gain the approbation of his principal. Is this the case with the senator? Is he simply the agent of the state? No. He is an agent for the Union, and he is bound to perform services necessary to the good of the whole, though his state should condemn them.
Sir, in contending for a rotation, the gentlemen carry their zeal beyond all reasonable bounds. I am convinced that no government, founded on this feeble principle, can operate well: I believe also that we shall be singular in this proposal. We have not felt the embarrassments resulting from rotation that other states have; and we hardly know the strength of their objection to it. There is no probability that we shall ever persuade a majority of the states to agree to this amendment. The gentlemen deceive themselves; the amendment would defeat their own design. When a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument: nay, he will feel temptations, which few other situations furnish, to perpetuate his power by unconstitutional usurpations. Men will pursue their interests. It is as easy to change human nature as to oppose the strong current of the selfish passions. A wise legislator will gently divert the channel, and direct it, if possible, to the public good.
It has been observed, that it is not possible there should be in a state only two men qualified for senators. But, sir, the question is not, whether there may be no more than two men; but whether, in certain emergencies, you could find two equal to those whom the amendment would discard. Important negotiations, or other business to which they shall be most competent, may employ them at the moment of their removal. These things often happen. The difficulty of obtaining men capable of conducting the affairs of a nation in dangerous times, is much more serious than the gentlemen imagine.
As to corruption, sir, admitting, in the President, a disposition to corrupt, what are the instruments of bribery? It is said he will have in his disposal a great number of offices. But how many offices are there, for which a man would relinquish the senatorial dignity? There may be some in the judicial, and some in other principal departments. But there are few whose respectability can, in any measure, balance that of the office of senator. Men who have been in the Senate once, and who have a reasonable hope of a reëlection, will not be easily bought by offices. This reasoning shows that a rotation would be productive of many disadvantages: under particular circumstances, it might be extremely inconvenient, if not fatal to the prosperity of our country.
The Hon. Mr. Smith. Few observations have fallen from the gentleman which appear to be new. He supposes factions cannot exist in the Senate without the knowledge of the state legislatures, who may, at the expiration of their office, elect other men. I believe, sir, that factions may prevail to a considerable degree without being known. Violent factions have sometimes taken place in Congress, respecting foreign matters, of which the public are ignorant. Some things have happened which are not proper to be divulged. So it by no means appears probable that the clashing of state interests will be the only cause of parties in the government. It has also been observed that the Senate has the check of the House of Representatives. The gentlemen are not accurate in stating this matter. The Senate is vested with certain great exclusive powers; and in the exercise of these powers, factions may as probably take place as in any transactions whatever. The honorable member further remarks that, from the intimate connection between the state legislatures and the people, the former will be the image of the latter, and subject to the same passions and prejudices. Now, I will ask every candid man if this is a true position. Certainly, it cannot be supposed that a small body of men, selected from the people for the purpose of making laws, will be incapable of a calm and deliberate view of political subjects. Experience has not [Volume 2, Page 230] proved that our legislatures are commonly guilty of errors arising from this source. There always has been, and ever will be, a considerable proportion of moderate and well-informed men among them. Though factions have prevailed, there are no instances of tumultuous proceedings; no instances to prove that they are not capable of wise deliberations. It is perhaps useless for me to continue this discussion, in order to answer arguments which have been answered before. I shall not, therefore, trouble the committee any more at present.
The Founders' Constitution
Volume 2, Article 1, Section 3, Clauses 1 and 2, Document 14
The University of Chicago Press
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.