Federalist 65
Back when I taught at a college in Ohio I often appeared on a Cleveland television system as an “expert” in politics (the initial invitation arising from a tasteless but funny joke I offered to a local reporter). During this time I was asked to debate a local law professor concerning the propriety of the Clinton impeachment and in the conversation quoted Hamilton from Federalist 65. At one point my opponent quoted the Constitution, thus completely befuddling the producer of the news who couldn’t for the life of himself figure out what either reference had to do with the proceedings in Washington. Apparently Hamilton must have had a bit more cache as I kept getting invited back, but not my interlocutor.
My opponent had argued that the effort to remove Clinton from office was unconstitutional, and I wondered out loud how using a provision contained in the Constitution could possibly be unconstitutional. The framers of the Constitution sought fit to place that tool in the hands of the legislature, so the only relevant question was not whether they could use it but whether they were using it well and prudently. While elections are the essential mechanism for removing corrupt politicians, experience taught that waiting another two or three years might prove too long.
The impeachment power goes back centuries as part of the common law. There isn’t any effective way other than assassination or a revolution to overthrow a hereditary monarch, but corruption occurs in the surrounding court, and ridding the court of corrupt ministers became an essential parliamentary power. The Constitution’s impeachment clause applies not only to the President and Vice-President but to “all civil officers.”
Clearly identifying corruption, however, proves a difficult task. Certainly treason or accepting bribes would count, but the Constitution offers the addendum of “high crimes and misdemeanors[!],” a sufficiently capacious standard that would seem to include any whiff of corruption. Most of the writers at that time understood corruption as a systemic problem, like rust on an automobile that, once introduced, slowly corrodes and compromises the whole body. The longer you wait to get rid of it the more difficult and costly the process.
Federalist and Anti-federalist alike agreed on the essential nature of the impeachment power, and both had a fairly capacious understanding of its use. In 65 Hamilton reminded his audience that “high crimes and misdemeanors” meant that “[t]he subjects of [the impeachment power’s] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Impeachment provided a democratic means to a republican end: giving the public a mechanism for removing corrupt and vicious officials without having to wait for an election. (One should keep in mind Hamilton was an advocate for lifetime appointments for presidents.)
Once again, public opinion would be filtered through the representative process, which meant that the House would possess impeachment authority. In 65 Hamilton offered three options to having the House impeach. The first would be allowing the courts to remove corrupt officials, but since once removed from office those officials would also be liable to criminal proceedings this would essentially make the outcome of the criminal trial predetermined. Furthermore, as unelected officials Court members would not have the trust of the people. A second option: set up a permanent tribunal for the purposes of holding trials for removal from office. In Hamilton’s mind this would be both too costly an option and would remove the power too far from the people.
Thus the convention offered a bifurcated approach: the House creating and voting on the articles of impeachment and the Senate conducting the actual trial that could result in removal. Hamilton and Madison both hedged on giving the House exclusive authority for fear of how parties and factions would divide the House, resulting in impeachments driven by partisan interest rather than a genuine concern for the public good. Impeachments are political proceedings, not legal ones, and for that reason party politics might abuse the power. “In such cases,” Hamilton worried, “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” True, that.
What was needed was a tribunal “sufficiently dignified” and “sufficiently independent.” The mode of selection of Senators as well as the length of terms would place the final decision in the hands of people sufficiently removed from public passions and political pressures, thus insuring the proper balance of public interest and the rights of the accused. The House and the Senate in tandem would act as the two hands on the “bridle” held by “the legislative body upon the executive power of the government.”
The astute reader will note that Hamilton discussed all this in the section on the powers of the Senate (he would return to the issue again when he discussed the executive). Realizing that the very existence of the Senate struck critics as being too aristocratic a body (a suspicion confirmed when in this essay Hamilton directly compares the Senate to The House of Lords in the British Parliament), Hamilton argued that some body needed to be placed between the House and the executive, between the accusers and the accused, in order to assure that justice be done. Hamilton himself might have thought the Senate an imperfect solution, but also the best the convention could come up with.
For Anti-federalists, however, this power of trial demonstrated once again the dangers of the (so-called) upper chamber: not only was it too aristocratic but it blended too much executive and legislative power, the blending of which was the essence of tyranny. Brutus took up this argument in his 16th essay, noting that the blending of power meant that Senators could both appoint and remove public officials, and putting both those powers in the same hands made little sense.
To my knowledge no critic made the argument against the Senate’s power more forcibly than the author who went by the name “Cincinnatus” (the Roman hero who best represented republican virtue and simplicity) in a letter addressed to James Wilson, one of the age’s leading advocates for national power. “The whole truth,” Cincinnatus wrote, is “that the same body, called the senate, is vested with—legislative—executive—and judicial powers. The two first you acknowledge; the last is conveyed in these words, sec. 3d. ‘The senate shall have the sole power to try all impeachments.’ On this point then we are to come to issue—whether a senate so constituted is likely to produce a baneful aristocracy, which will swallow up the democratic rights and liberties of the nation.”
Because of its blended powers the Senate could actually screen the accused from punishment and conviction, a problem intensified when one considers that the Vice-President presided over the Senate (and this before the 12th Amendment). Being in the superior position in the removal of corrupt officials the Senate could also thwart the will of the people, those whose government it is, as regards removing corrupt officials. The trial power ultimately took one hand off the bridle, leaving the Senate as the sole adjudicator of the executive, with whom it shared powers such as treaty-making and appointment. The clumsy system put in place would more likely confuse and frustrate the public than act as an agent of its will. By blending legislative power with executive, the Constitution virtually insured the Senate would never convict an executive because they themselves had a direct interest in protecting that person.
“And this is contrived with so much art, that to discover it you must bring together various and distant parts of the constitution, or it will not strike the examiner, that the same body that advises the executive measures of government which are usually the subject of impeachment, are the sole judges on such impeachments. They must therefore be both party and judge, and must condemn those who have executed what they advised. Could such a monstrous absurdity have escaped men who were not determined, at all events, to vest all power in this aristocratic body? Is it not plain, that the senate is to be exalted by the humiliation of the democracy. A democracy which, thus bereft of its powers, and shorn of its strength; will stand [as] a melancholy monument of popular impotence.”
Cincinnatus argued in the same letter that this blending of power also had the lamentable effect of dividing the power of the executive, an argument I will return to in a later essay. In many ways this argument over the impeachment power is an argument over the nature of republican government itself: to what degree does it reflect and express the will of the people and to what degree does it frustrate it? Madison may have sought something like Aristotle’s mixed regime — a blending of aristocratic, monarchical, and popular principles — but Hamilton was dogged by charges of aristocracy for a reason.
This seems an appropriate place to insert an important story (I’ve cleaned up the punctuation and capitalization) from the Constitutional era, written down by Jefferson in February of 1818. “Hamilton was not only a monarchist,” Jefferson claimed, “but for a monarchy bottomed on corruption. In proof of this I will relate an anecdote, for the truth of which I attest the God who made me. Before the President sat out on his Southern tour in April 1791, he addressed a letter of the 4th of that month, from Mt Vernon to the Secretaries of State, the Treasury & War, desiring that, if any serious and important cases should arise during his absence, they would consult & act on them, and he requested that the Vice-president [John Adams] should also be consulted. This was the only occasion on which that officer was ever requested to take part in a Cabinet question. Some occasion for consultation arising, I invited those gentlemen (and the Attorney genl as well as I remember) to dine with me in order to confer on the subject.”
Then Jefferson gets to the heart of the story: “After the cloth was removed, and our question agreed & dismissed, conversation began on other matters and, by some circumstance, was led to the British constitution, on which Mr. Adams observed ‘purge that constitution of its corruption, and give to its popular branch equality of representation, and it would be the most perfect constitution ever devised by the wit of man.’”
“Hamilton paused and said, ‘purge it of its corruption, and give to its popular branch equality of representation, & it would become an impracticable government: as it stands at present, with all its supposed defects, it is the most perfect government which ever existed.’ and this was assuredly the exact line which separated the political creeds of these two gentlemen. The one was for two hereditary branches and an honest elective one: the other for a hereditary king with a house of lords & commons, corrupted to his will, and standing between him and the people. Hamilton was indeed a singular character. of acute understanding, disinterested, honest, and honorable in all private transactions, amiable in society, and duly valuing virtue in private life, … yet so bewitched & perverted by the British example, as to be under thoro’ conviction that corruption was essential to the government of a nation.“
A Congress corrupted to the president’s will, standing between him and the people, was the Anti-Federalist fear. Hamilton, though, didn’t fear corruption from above, he always feared it from below. This tension between fear of the populace and fear of elites remains to this day.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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