The Purpose and Powers of the Senate, Part IX: Principled Complication or Unnecessary Creation

    By the time that the attendees of the Philadelphia Convention finally returned to a discussion of the specific powers of the upper house of Congress on September 7^th, 1787, two exceptionally important agreements had definitively been sealed. The aforementioned Connecticut Compromise, which had been submitted by the Committee of Twelve to the Committee of the Whole on July 5^th, had finally be ratified, thus cementing the allocation of Senate seats on an equal basis per state. And in the process, a second agreement – the so-called “Three-Fifths Compromise” – had also been settled, the effect of which was to count enslaved peoples at a ratio of three-fifths of one whole person for the purpose of allocating seats in the House of Representatives. Having thus effectively “closed the book” on the structure and composition of the newly enhanced and expanded Congress, the delegates were accordingly freer than they had been previously to delve into the exact details of certain responsibilities thereof. Specifically, now that it was clear what form the Senate was going to take, they returned their attention to discussing what purpose they felt said body ought to serve. First on the docket, unsurprisingly, was the topic of appointments.

    The first comment offered upon this particular subject since the previous discussion had come to a close on July 21^st actually arose in the midst of an exchange concerning the nature and powers of the office of Vice President. While endeavoring to explain to his colleagues why allowing the heir apparent of the President to preside over the Senate as that body’s chief officer was fundamentally unacceptable, Virginia’s George Mason evidently could not stop himself from additionally expressing, “His dislike of any reference whatever of the power to make appointments to either branch of the Legislature.” This was not to say that, like certain of his colleagues, he preferred to vest such a power in the hands of the proposed chief executive, however. On the contrary, “He was averse to vest so dangerous a power in the President alone.” Rather, he envisioned the appointing authority sitting more or less between the two. “A privy Council of six members to the president should be established [,]” he thus explained,

To be chosen for six years by the Senate, two out of the Eastern two out of the middle, and two out of the Southern quarters of the Union, & to go out in rotation two every second year; the concurrence of the Senate to be required only in the appointment of Ambassadors, and in making treaties, which are more of a legislative nature.

It was rather a complex arrangement compared to simply granting the relevant power to the Senate, particularly as in involved creating an entirely new organ of government whose composition would in turn depend on determining precisely which states fell under the categories of “eastern,” “middle,” and “southern.” That being said, it was one which Mason believed would serve to alleviate several potential problems at once. For one thing, he asserted, the existence of such a council, “Would prevent the constant sitting of the Senate which he thought dangerous, as well as keep the departments separate & distinct. It would also [,]” in Mason’s opinion, “Save the expence of constant sessions of the Senate” and entirely avoid saddling such an unwieldly body with such a subtle responsibility as investigating the character of certain specific individuals.

    Part of what makes this proposal of Mason’s so intriguing in retrospect is how late in the life of the Philadelphia Convention he sought to introduce it. Granting that it had taken until early September for the assembled delegates to finally agree on the basic composition of the Senate, the whole affair would end up being concluded in slightly more than a week from that moment. The delegates had called their first meeting to order in the middle of May and had been discussing the nature and powers of the Senate since at least the end of June. After all that time, having seen a consensus slowly and painfully form around the general framework of government with which posterity has since become familiar, the fact that Mason still thought it possible to propose the addition of a wholly new institution which would effectively straddle the legislative and executive branches would seem tantamount to inexplicable. Why should he have thought it possible, given how much time his colleagues had spent either proposing grants of power to the Senate or the Executive or else picking apart the proposals put forward by others, that after finally coming to something approaching a consensus on the matter, they should have been inclined to upend the whole lot and instead throw they weight being this privy council idea? As the relevant discussions had made clear, bestowing any kind of responsibility upon an organ of government, however well-intentioned, was bound to have consequences in other quarters that needed to be carefully considered. Why, then, at the far end of all this considering, should the assembled delegates have gone along with Mason in slotting in yet another organ of government into what was otherwise a painstakingly balanced administrative framework?

    In fairness to Mason, his proposal was not wholly without precedent. A number of states had granted appointment powers at the executive level to some manner of council or committee. Maryland was one, with appointment power vested in a council elected by a joint ballot of the legislature and responsible for approving the executive nomination of, “The Chancellor, and all Judges and Justices, the Attorney-General, Naval Officers, officers in the regular land and sea service, officers of the militia, Registers of the Land Office, Surveyors, and all other civil officers of government [.]” New York was another, with a specific Council of Appointment – being comprised of the Governor and one senator from each of the state’s four districts – holding the power to fill executive offices, judicial offices, mayorships, clerkships, and military commissions. And Massachusetts was yet a third, with a Governor’s Council appointed by a joint ballot of the legislature and responsible, along with the Governor, for appointing, “All judicial officers, the attorney-general, the solicitor-general, all sheriffs, coroners, and registers of probate [.]” Nathanial Gorham, being a native of the Bay State, had even cited this latter example during the relevant discussions on July 18^th as a method which the national government might have done well to follow. In the moment, Mr. Mason had not offered much in the way of either agreement or dismissal, save to observe that there seemed to be, “Insuperable objections […] agst. referring the appointment to the Executive.” Evidently, the additional time had succeeded in bringing him around. 

    It remained to be seen, of course, just what the character of Mason’s “privy council” would turn out to be. Its composition would doubtless end up reflecting that of the Senate, creating a kind of thrice-divorced representation of the American people. The people would elect the state legislatures, the state legislatures would choose the Senators, and the Senators would appoint the councilors. How this would affect the nature and quality of the council’s final appointments, it would be difficult to say, though it would seem likely that those who found themselves tapped for council membership would be of a similar socio-economic class as their electors in the Senate. These men would then be likely in turn to make the same kinds of appointments as the Senate might do itself. But while this outcome would make it seem as though the creation of a privy council would accomplish very little, Mason made his rationale quite clear alongside his proposal. The primary benefits of his desired apparatus, he explained, were that it would “Prevent the constant sitting of the Senate […] keep the departments separate & distinct […] save the expence of constant sessions of the Senate [,]” and provide for a viable alternative to the “unwieldiness” of the same. To be sure, creating an entirely new organ of government whose existence was bound to have a significant effect on the operation of the proposed constitution just so that the Senate might be saved having to hold a few extra sessions every handful of years represented a rather drastic means of achieving these objectives. But it may have been that Mason was exceptionally fixated upon the Senate and the powers that it had so far been granted.

    By his own admission, Mr. Mason thought that allowing the Senate to sit constantly was “dangerous,” believed it important to keep the various branches of the proposed government separate, was keen to keep expenses down, and felt that the Senate was not well-suited to evaluate individual strengths and weaknesses. In turn, based on these statements, one may fairly conclude that Mason harbored a number of basic concerns as to the nature and operation of the proposed upper house of Congress. He felt the Senate powerful enough – perhaps too powerful – without allowing it to sit in perpetuity. He disliked the idea of the upper house gaining influence either over or within other branch branches of the national government. He was at least somewhat concerned about the financial well-being of the new administration. And he believed that the appointment process should be as efficient as possible, with minimal opportunity for drawn out discussions among potentially dozens of individuals whose professional objectives extended well beyond filling judgeships. The creation of a distinct and separate privy council could have addressed these concerns, novel though the idea may have been on its face. The only question was whether Mason was in time enough to convince his colleagues or if their opinions had more or less solidified around leaving appointments to the discretion of the Senate.

    In the immediate, at least, Mr. Mason appeared to be in luck. The aforementioned James Wilson gave voice to similar concerns, going so far as to explicitly endorse Mason’s stated proposal. The gentleman from Pennsylvania, it seemed, did not like the idea of, “Blending a branch of the Legislature with the Executive.” Likewise, he felt that, “Good laws are of no effect without a good Executive; and there can be no good executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate.” On the former charge, Wilson was very much in agreement with Mason; neither man seemed particularly amenable to the idea of granting the Senate any authority over or within the executive sphere. Evidently, they both valued a government in which the authority of each constituent branch was carefully balanced – thus preventing any one of them from accumulating too much power – to one which functioned as simply and efficiently as possible. And as to the latter charge, Wilson was chiefly repeating what had previously been argued by his friend and ally Madison. Namely, that “responsibility” was an essential component of any successful mechanism of appointments. Placing the Senate at the center of such a process, they felt, would have made it impossible for the American people to hold the national government to account in the event that certain political appointees proved to be inept, corrupt, or otherwise unsuitable.

    Granting that there might be a record of how each appointment vote was conducted in the journal of the Senate, this could hardly be said to represent much of a promise of accountability. Besides the fact that any Senator who had voted on the record to approve of a bad appointment could quite reasonably claim that they had simply taken the word of their trusted colleagues, there was also the distinct possibility that a Senator might lead the charge to secure a corrupt appointment before then retiring from public life to live off the spoils of their bargain. How were the American people supposed to punish someone who was no longer in office? For that matter, how were they supposed to prove that one Senator in particular was responsible for securing a bad appointment in exchange for personal favors? Being unable to answer these kinds of questions is surely what drove the like of Messrs. Wilson and Madison to argue vehemently against vesting appointments strictly in the hands of the Senate. An executive, to be sure, might also exchange patronage for personal favors, but at least if this patronage was principally theirs to dole out, the American people would be left with no cause to question whom among their public servants was guilty of abusing their trust. And as the nature of their accountability became known to successive executives, they might learn to make their appointments with greater care and consideration.

    But while these specific concerns did lead Mr. Wilson to explicitly endorse Mr. Mason’s aforementioned proposal, he did so with one rather significant caveat in mind. Wilson, it was recorded, “Would prefer the council proposed by Col. Mason,” to any possible alternative, but only, “Provided its advice should not be made mandatory on the President.” Without knowing precisely what it was the gentleman from Pennsylvania was intending, one’s natural impulse upon reading this would seem to be one of confusion. If, as Wilson would have it, the council’s advice was not, “Made mandatory on the President [,]” then what purpose was this body supposed to serve? As Mason had avowed before he laid out his plan originally, one of the reasons he preferred to establish a privy council was that, “He was averse to vest so dangerous a power [as making appointments] in the President alone.” Why, then, should Wilson have claimed to endorse Mason’s plan if he also felt that the President should have been able to ignore the council’s advice? If the President could ignore their council without any fear of punishment, why should any holder of that office ever deign to appoint anyone besides those of their own choosing? Mason’s stated intention was to split the difference between allowing the unwieldy Senate and the untrustworthy executive to each make appointments. Wilson’s stated caveat would have completely voided this objective. Granted, this was quite in keeping with Wilson’s comments of July 18^th – namely, that he would have preferred an appointment strictly by the executive and supported the creation of a privy council only if the former could not be obtained – but it nevertheless strikes one as exceptionally odd and contradictory for him to have endorsed Mr. Mason’s proposal and attempted to invalidate it in the same breath.

    As the conversation proceeded, various other delegates offered either their support or their disdain for Mason’s cited proposal. New York’s Gouverneur Morris, for one, sought to counter Wilson’s identification of the Senate with a lack of responsibility by closely echoing an assertion that had previously been made by the latter’s ally Madison during the discussions of the July 18^th. During that earlier conversation, the gentleman from Virginia had asserted that allowing federal judges to be appointed by the executive with the concurrence of the Senate, “Would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination [.]” Almost two months later, Morris made the same basic argument when he said – speaking to Mason’s aforementioned proposal – that, “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” Plainly, his purpose was to indicate to both Wilson and Mason that the creation of a privy council with responsibility for appointments was quite simply unnecessary. Madison had already made the argument that the Senate and the Executive could safely handle the matter between them, and Morris saw no reason why this should have ceased to be the case in the interim.

    The next substantial comment was delivered by one Rufs King, a delegate from Massachusetts who had otherwise been silent on the topic of the Senate until this moment. His attitude, it seemed, was much like that of Morris’s, specifically in that he endeavored to throw water on Mason’s aforementioned plan. It was his opinion, he began accordingly,

That most of the inconveniences charged on the Senate are incident to a Council of Advice. He differed from those who thought the Senate would sit constantly. He did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong. [And he was also] of opinion that the people would be alarmed at an unnecessary creation of a new Corps which must increase the expence as well as influence of the Government.

King’s criticism, it seemed, were aimed mostly at Mr. Mason, endeavoring as they did to call into question the specific rationale behind his cited proposal. Mason, recall, had affirmed as justification for his plan to create a privy council that it would be dangerous to allow the Senate to sit constantly – as it must have done in order to attend to its power over appointments – and that it was also, inherently, “Too unwieldy & expensive for appointing officers, especially the smallest [.]” King evidently sought to counter these exact points when he argued in response that the Senate would actually not be forced to sit constantly, in no small part because it would not be expected to appoint every officer under commission to the federal government. The, “Higher officers of the departments [,]” to be sure, would require Senate confirmation, but these higher officers would then see to filling all the offices below their own. Bearing in mind, then, that the Senate could reasonably be trusted to attend to the relevant responsibility without creating more problems than were solved, the real question to be considered was whether it was strictly prudent that it do so. King, for his part, answered in the affirmative, though in a somewhat roundabout way.

    It wasn’t that King believed Mason’s privy council to be inadequate to the task it was designed to complete. Nor was it, based on his assertions, that he felt the Senate better suited to the same task in any particular sense. Rather, what gave him pause was what the creation of an entirely new organ of government likely portended for the acceptance of the scheme as a whole. “The people [,]” he said, “Would be alarmed at an unnecessary creation of a new Corps which must increase the expence as well as influence of the Government.” A pricy council of the type that Mason proposed might indeed have been able to help make federal appointments in a way that was effective, efficient, and relatively resistant to corruption. But would the performance of such an entity so far exceed that of the Senate as to justify potentially alienating the American people by creating yet another organ of government to whose dictates they must be beholden? King did not think so. As far as he was concerned, provided that the Senate’s authority over appointments was confined to a relatively small corps of officers, it made more sense to allow an institution upon whose necessity he and his fellow delegates had already agreed to take up certain new responsibilities than create yet another institution just for that purpose. Difficult as it would surely prove to convince the American people of the safety and utility of an expanded federal government, it made a certain amount of sense to keep said government as streamlined as was practicable. If the creation of a privy council wasn’t absolutely essential, in short, King was of the concerted opinion that it would be best left out.

    Tellingly, when a vote was finally held at the conclusion of this discussion, the specific motion that was considered appeared to reflect the arguments put forward by the likes of King and Morris more than those of Wilson or Mason. Rather than speak to the creation of a privy council appended to, but distinct from, either the executive or legislative branches, the question placed before the assembled delegates was instead whether or not the President, “Shall nominate & by & with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers (and Consuls) [and] Judges of the Supreme Court.” The result? Perhaps unsurprisingly, given that Mason’s proposal was not even granted a vote, Madison recorded the result using the Latin abbreviation “nem: con.” That is, nemine contradicente: literally, “no one objected.” To be sure, the assembled delegates, to a man, did not think the notion of a privy council entirely without merit. Nathaniel Gorham had spoken in praise of just such an arrangement on July 18^th, while James Wilson had offered George Mason’s relevant proposal his endorsement – albeit conditionally – during the discussion of September 7^th. Even those who objected to the notion did not disclaim it out of hand. Gouverneur Morris had simply opined that the Senate would serve just as well, and Rufus King never once attempted to assert that a council of appointment would fail to fulfil its stated purpose. Rather, it just seemed that the argument in its favor wasn’t convincing enough. Yes, a privy council could surely attend to federal appointments in a safe and effective manner, but did it need to? Was such an institution really necessary, or could the Senate reasonably see to the relevant responsibilities without also further expanding the scope and scale of the federal government? Having, by the beginning of September, travelled a great distance towards establishing the final form of the proposed constitution – amidst countless proposals, and debates, and bargains, and votes – the assembled delegates seemed to have lost their taste for further radical innovation. Those who were still interested in making significant changes to the document’s core framework – like Mason, for example – would certainly be given their chance to hold the floor and speak their piece, but they would do so in defiance of an increasingly solid consensus.