Antifederalist No. 62
ON THE ORGANIZATION AND POWERS OF THE SENATE (PART 1)
Taken from the 16th essay of "Brutus" from The New York Journal
of April 10, 1788.
The following things may be observed with respect to the
constitution of the Senate.
1st. They are to be elected by the legislatures of the
States and not by the people, and each State is to be represented
by an equal number.
2d. They are to serve for six years, except that one third
of those first chosen are to go out of office at the expiration
of two years, one third at the expiration of four years, and one
third at the expiration of six years, after which this rotation
is to be preserved, but still every member will serve for the
term of six years.
3d. If vacancies happen by resignation or otherwise, during
the recess of the legislature of any State, the executive is
authorised to make temporary appointments until the next meeting
of the legislature.
4. No person can be a senator who had not arrived to the
age of thirty years, been nine years a citizen of the United
States, and who is not at the time he is elected an inhabitant of
the State for which he is elected.
The apportionment of members of the Senate among the States
is not according to numbers, or the importance of the States, but
is equal. This, on the plan of a consolidated government, is
unequal and improper; but is proper on the system of
confederation - on this principle I approve of it. It is indeed
the only feature of any importance in the constitution of a
confederated government. It was obtained after a vigorous
struggle of that part of the Convention who were in favor of
preserving the state governments. It is to be regretted that they
were not able to have infused other principles into the plan, to
have secured the government of the respective states, and to have
marked with sufficient precision the line between them and the
general government.
The term for which the senate are to be chosen, is in my
judgment too long, and no provision being made for a rotation
will, I conceive, be of dangerous consequence.
It is difficult to fix the precise period for which the
senate should be chosen. It is a matter of opinion, and our
sentiments on the matter must be formed, by attending to certain
principles. Some of the duties which are to be performed by the
Senate, seem evidently to point out the propriety of their term
of service being extended beyond the period of that of the
assembly. Besides, as they are designed to represent the
aristocracy of the country, it seems fit they should possess more
stability, and so continue a longer period then that branch who
represent the democracy. The business of making treaties and
some other which it will be proper to commit to the senate,
requires that they should have experience, and therefore that
they should remain some time in office to acquire it. But still
it is of equal importance that they should not be so long in
office as to be likely to forget the hand that formed them, or be
insensible of their interests. Men long in office are very apt to
feel themselves independent; to form and pursue interests
separate from those who appointed them. And this is more likely
to be the case with the senate, as they will for the most part of
the time be absent from the state they represent, and associate
with such company as will possess very little of the feelings of
the middling class of people. For it is to be remembered that
there is to be a federal city, and the inhabitants of it will be
the great and the mighty of the earth. For these reasons I would
shorten the term of their service to four years. Six years is a
long period for a man to be absent from his home; it would have a
tendency to wean him from his constituents.
A rotation in the senate would also in my opinion be of
great use. It is probable that senators once chosen for a state
will, as the system now stands, continue in office for life. 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
reelected. It will therefore be considered as a matter of
delicacy to the character of the senator not to return him again.
Everybody acquainted with public affairs knows how difficult it
is to remove from office a person who is long been in it. It is
seldom done except in cases of gross misconduct. It is rare that
want of competent ability procures 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. A further benefit would be
derived from such an arrangement; it would give opportunity to
bring forward a greater number of men to serve their country, and
would return those, who had served, to their state, and afford
them the advantage of becoming better acquainted with the
condition and politics of their constituents. It further appears
to me proper, that the legislatures should retain the right which
they now hold under the confederation, of recalling their
members. It seems an evident dictate of reason that when a
person authorises another to do a piece of business for him, he
should retain the power to displace him, when he does not conduct
according to his pleasure. This power in the state legislatures,
under confederation, has not been exercised to the injury of the
government, nor do I see any danger of its being so exercised
under the new system. It may operate much to the public benefit.
These brief remarks are all I shall make on the organization
of the senate. The powers with which they are invested will
require a more minute investigation.
This body will possess a strange mixture of legislative,
executive, and judicial powers, which in my opinion will in some
cases clash with each other.
1. They are one branch of the legislature, and in this
respect will possess equal powers in all cases with the house of
representatives; for I consider the clause which gives the house
of representatives the right of originating bills for raising a
revenue as merely nominal, seeing the senate . . . [has the
power] to propose or concur with amendments.
2. They are a branch of the executive in the appointment of
ambassadors and public ministers, and in the appointment of all
other officers, not otherwise provided for. Whether the forming
of treaties, in which they are joined with the president,
appertains to the legislative or the executive part of the
government, or to neither, is not material.
3. They are a part of the judicial, for they form the
court of impeachments.
It has been a long established maxim, that the legislative,
executive and judicial departments in government should be kept
distinct. It is said, I know, that this cannot be done. And
therefore that this maxim is not just, or at least that it should
only extend to certain leading features in a government. I admit
that this distinction cannot be perfectly preserved. In a due
balanced government, it is perhaps absolutely necessary to give
the executive qualified legislative powers, and the legislative
or a branch of them judicial powers in the last resort. It may
possibly also, in some special cases, be advisable to associate
the legislature, or a branch of it, with the executive, in the
exercise of acts of great national importance. But still the
maxim is a good one, and a separation of these powers should be
sought as far as is practicable. I can scarcely imagine that any
of the advocates of the system will pretend, that it was
necessary to accumulate all these powers in the senate. There is
a propriety in the senate's possessing legislative powers. This
is the principal end which should be held in view in their
appointment. I need not here repeat what has so often and ably
been advanced on the subject of a division of the legislative
power into two branches. The arguments in favor of it I think
conclusive. But I think it equally evident, that a branch of the
legislature should not be invested with the power of appointing
officers. This power in the senate is very improperly lodged for
a number of reasons - These shall be detailed in a future number.
BRUTUS