Antifederalist No. 65
ON THE ORGANIZATION AND POWERS OF THE SENATE (PART 4)
(by Gilbert Livingston and John Lansing delivered on June 24,
1788 to the New York ratifying convention)
Mr. G[ilbert] LIVINGSTON rose, and addressed the chair.
He, in the first place, considered the importance of the
Senate as a branch of the legislature, in three points of view:-
First, they would possess legislative powers coextensive
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 reelection, 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 be 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 [not] 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:-
"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. [John] 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. . .
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....
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 for with two views-to deter the governed
from crime, and the governors from tyranny.