The Purpose and Powers of the Senate, Part XIX: A Little Group of Willful Men

    The era which ultimately led to the birth of the modern filibuster commenced, more or less, at the beginning of the 1880s. Previously, from the 1840s through the 1870s, the great majority of filibuster attempts in the Senate had failed to achieve their ostensible objectives. Democrats had filibustered Whigs, Republicans had filibustered Democrats, and southern Senators of all stripes had come together to filibuster any and all legislation intended to protect the civil rights of former slaves and their descendants. But because both the Senate specifically and the federal government in general had comparatively little on their plates for the majority of this period, most of these efforts failed due to the Senate’s ability to simply wait out the occasional renegade. Possessed, as they were, of a relatively uncrowded docket, what did it matter to those seated in the chamber if a debate here or there took a few extra days to resolve? For a number of reasons, however, this began to change as the period of economic plenty and cultural quiescence commonly known as the Gilded Age (1870-1890) gave way to the Progressive Era (1890-1920) and its emphasis on corruption, regulation, populism, and economic justice. No longer content to observe the sense of collegiality which they collectively claimed to be among their defining characteristics as legislators, Senators began to filibuster more often and more ruthlessly either in support of or opposition to the great matters submitted to their scrutiny. Monetary policy, election integrity, financial regulation; the very foundations of the nation’s economy and its political system were being fundamentally re-examined, and the Senate became one of the primary battlefields in the resulting war between tradition and reform.

    Lofty as this may sound, however, what it meant in practical terms was that while induvial Senators spent more and more time actually in their assigned chamber, they accomplished less and less in terms of their stated agenda. In 1893, for example, when the so-called “Hard Money” Democrats in the Senate sought to repeal the Sherman Silver Purchase Act (1890) – a piece of legislation whose purpose was actually to encourage inflation as a sop to indebted farmers and the owners of silver mines – a coalition of pro-silver Democrats, pro-silver Republicans, and agrarian Democrats came together in an effort to sink the relevant bill. The resulting campaign, the culmination of which was a forty-six-day filibuster punctuated by numerous speeches, roll call votes, and various other parliamentary shenanigans, ultimately failed, shaving over a month off the Senate’s calendar with absolutely nothing to show for it. Some fifteen years later, as the Senate set about debating the merits of what would shortly become known as the Aldrich-Vreeland Act (1908), Wisconsin Republican Senator Robert M. La Follette (1855-1925) conducted his own similarly fruitless filibuster out of a sense of outrage at the bill’s terms. The country’s major banks and corporations, he opined, had triggered the Panic of 1907 in an effort to destroy their smaller competitors, and the Aldrich-Vreeland bill looked set to effectively reimburse them for their troubles. La Follette’s response was to hold the floor for a continuous eighteen hours in the midst of an early spring heat wave, delivering speech after speech with only minutes of respite in between by way of repeated roll call motions. In the end, however, notwithstanding his tenacity, La Follette’s effort was defeated when his progressive ally, the blind Oklahoma Democrat Thomas Gore (1870-1949), accidentally yielded the floor to a Senator who had just moments before exited the chamber. The Aldrich-Vreeland Act thereafter became law, regardless of one man’s attempt to stop it.

    The membership of the Senate tended not to think twice as to the propriety of such attempts. The majorities who had to contend with filibusters were no doubt frustrated at being forced to go to such lengths in order to pass bills which enjoyed more support than opposition. And there were surely those among their number who still found the very notion of procedural obstruction distasteful. But by the early 1880s – and certainly by the end of the 1910s – the concept of unlimited debate was so ingrained in the lore and the character of the Senate that most members were willing to tolerate the occasional inconvenience if it meant preserving a basic principle which they held to be essential. As resigned as Senators were to the continuation of the filibuster, however, the American people were decidedly not. They noticed – indeed, how could they not? – that their representatives in the Senate were talking more and more and accomplishing less and less, and it was only a matter of time before they made their frustration well and truly known. The adoption of the 17^th Amendment in 1913 and the subsequent shift in the Senate from legislative appointment to popular election – the circumstances and effects of which will be discussed at length in weeks to come – helped set the stage for this confrontation, specifically as it made Senators accountable to the general public rather than fellow party members. But it was the events of WWI (1914-1917), the groundswell of popular patriotism that resulted, and a president whose ultimatum to the Senate had the force of public discontent behind it which collectively resulted in the birth of the modern filibuster.

    The United States did not enter formally WWI until 1917, of course, and the Senate vote on a declaration of war was not a particularly close one. But as early as 1915, years before an American soldier would set foot on the battlefields of Europe, the American republic found itself substantially involved in the conflict. Mainly, their early ties were economic in nature. Having declined to become involved in the war at its outset, the United States was instead free to provide large bank loans and valuable supplies to whichever nation was inclined to apply. In practice, Britain’s large surface fleet ensured that American merchant vessels were blocked from entering German ports, thus effectively cutting off American business interests from access to the German war economy. Because the contemporary German navy was unable to respond in kind, most American commerce in the opening years of the war was accordingly conducted with Britain and France. Unwilling to allow this advantage to go unchecked, however, the German navy in turn sought to deploy its submarine fleet – small at first, but with a tremendous capacity for expansion – for the purpose of sinking civilian merchant vessels as they approached British ports. As the British seemed intent on starving the Germans into submission, so it was felt by German military authorities to be both appropriate and substantially necessary to treat the British in kind. The result, in the immediate, was something of a free-for-all. Notwithstanding the complaints levelled by the administration Woodrow Wilson (1856-1924) that the actions of the European belligerents ran counter to several international agreements protecting free navigation for neutral vessels, American merchant sailors found themselves the victims of both British seizure and German attack. The British, in the end, gave up harassing American vessels after President Wilson made known the intensity of his displeasure. But the Germans – with few other options at their disposal – made only a series of qualified promises, none of which they ultimately kept.

    Near the beginning of the year 1915, the German navy sank three American merchant ships. At the time, having no cause to think otherwise, President Wilson concluded that these attacks were accidental, that the Germans were not purposefully targeting Americans, and that some manner of financial settlement could be reached at war’s end. In May of that year, famously, a German submarine sank the British ocean liner RMS Lusitania on the contention that it had entered a declared warzone and that it was carrying – in addition to civilian passengers – almost two hundred tons of war munitions. Of the one thousand one hundred and ninety-eight passengers who were killed, one hundred and twenty-eight were American citizens, leading President Wilson to voice his anger and demand that such incidents not be repeated. The following March, in 1916, a ferry called the SS Sussex was torpedoed while attempting to cross the English Channel, the result of which was a death toll of fifty and a list of injured that included several more American civilians. Wilson responded this time by demanding a final halt to such unrestricted attacks or else the United States would break off relations with Germany entirely. The following month, fearful that the Americans might end up joining the Entente and declaring war, the German government accordingly delivered the so-called “Sussex Pledge.” Passenger ships would no longer be targeted; merchant vessels would only be fired upon once the presence of war materials had been confirmed; and provisions would be made for the rescue of the survivors of such merchant vessels as were sunk. Satisfied, evidently, Wilson let it go at that.

    By 1917, the calculus of victory had substantially changed from the perspective of the German High Command. Whereas, in 1916, the threat of American intervention on the side of the Entente was thought to outweigh whatever advantage might have been gleaned from keeping American merchant vessels from reaching British ports, German military authorities were now of the opinion that antagonizing the United States might have been worth drawing the nation into the war if it meant effectively starving the British into submission. Indeed, they even wagered that Britain could be substantially defeated before the Americans had a chance to effectively mobilize. The key, of course, was the aforementioned submarine fleet. If German submarines were once again permitted to attack American merchant vessels without any manner of restriction, the war might soon be brought to an end by way of a resounding German victory. With this thinking in mind, German military authorities – who, in 1917, were effectively in control of the national government – advanced two distinct but complimentary policy initiatives. First, as discussed above, they elected to resume a course of unrestricted submarine warfare as of January 1917, thus entirely abrogating the terms of the Sussex Pledge and rendering any and all American merchant vessels valid targets of predation. And second, by way of a coded telegram, the German Foreign Office made an offer of military alliance and financial support to the government of Mexico for the purpose of recovering – on Mexico’s part – the previously ceded territories of New Mexico, Texas, and Arizona.

    There was, to be sure, a certain logic to the German position. If Mexico could be convinced to declare war on the United States at the same time that German submarines began once more sinking American merchant vessels bound for Britain, American troops and equipment which might otherwise be dispatched to Western Europe following a declaration of war on Germany would instead be tied down in a defense of the nation’s lengthy southern border. Thus free to strangle the British war effort without external interference, Germany might then have secured an unquestioned victory before the United States had a chance to turn its attention to Germany itself. Indeed, there was really only one problem with the plan as a whole. Namely, that Mexico – still in the midst of a civil war between various radical and conservative political factions – was in no state to carry on a successful war with the American republic. And even if it had been – even if the Mexican armed forces were of a comparable size to those of the United States, and similarly armed, and possessed of a dependable source of income – there was simply no way that a Mexican occupation of the states of New Mexico, Texas, or Arizona – all of whom contained English-speaking majorities – could have been sustained in the long term. Aware of all of this – and substantially unconvinced of the sincerity of German promises of financial assistance – the government of Mexican President Venustiano Carranza (1859-1920) accordingly declined to take up the German offer.

    But while the Mexican refusal to declare war on the United States certainly spared the latter no small amount of trouble – not the least because recent American efforts to intervene military in Mexico had proven to be largely ineffectual – the revelation of the German offer itself nevertheless placed President Wilson in a substantially awkward position. So long as the coded telegram remained an object of public speculation – that is, something advocated by the press but unconfirmed by either the Mexican or German governments – the Wilson Administration could reasonably dismiss it as a hoax on the part of certain interested parties intent of driving the United States to declare war on the German Empire. But from the moment that Germany’s Foreign Minister, Arthur Zimmerman (1864-1940), confirmed the document’s legitimacy during a press conference in March, the United States government had little choice but to respond. German submarines had already sunk two American merchant ships by the end of the previous month, and shipping firms were already going so far as to hold their ships in port indefinitely. Wilson had refused previous proposals that American merchant vessels be armed; indeed, he’d spent most of the previous three years of his presidency doing all that he could to keep the United States out of the war in Europe. But now, with American commerce once again suffering and public outrage mounting as a result of the “Zimmerman Telegram,” he seemed to have no choice. Notwithstanding his prior position, Wilson asked Congress to draft a bill which would mandate the arming of the American merchant fleet. Unsurprisingly – in light of contemporary public opinion – the resulting legislation sailed through the House. When it reached the Senate, however, it very quickly became the subject of intense disagreement.

    This isn’t to say that there wasn’t also majority support in the Senate for a bill authorizing the arming of American merchant vessels on the high seas. On the contrary, of the ninety-six Senators then sitting in the upper chamber, eighty-five of them made it clear that they were in favor of the proposed legislation. But because the remaining eleven were very much against it – and because, so long as they held the floor between them, they could prevent it from ever coming to a vote – the measure was effectively defeated when Congress adjourned on the afternoon of March 4^th, 1917. The obstructionists, led by the aforementioned Senator La Follette, were keen to prevent any act which might have led to the United States becoming embroiled in the war in Europe, and so they accordingly defaulted to the accustomed Senate strategy of simply refusing to yield the floor until the offending bill was withdrawn from consideration. Thus effectively stymied by parliamentary regulations over which he had no control, Woodrow Wilson then proceeded to exercise one of the great powers of the American presidency: the bully pulpit. In a statement published in The New York Times on March 5^th, 1917, the President of the United States made known the depths of his displeasure. As to the previous day’s events in Congress, he reflected that,

More than 500 of 531 members of the two houses were ready and anxious to act; the House of Representatives had acted, by an overwhelming majority; but the Senate was unable to act because a little group of eleven senators had determined that it should not […] The Senate of the United States is the only legislative body in the world which cannot act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great Government of the United States helpless and contemptible.

The remedy? There is but one remedy. The only remedy is that the rules of the Senate shall be so altered that it can act. The country can be relied upon to draw the moral. I believe the Senate can be relied on to supply the means of action and save the county from disaster.

    Bearing in mind – based on his words and deeds of the previous three years – that Woodrow Wilson did not actually want his nation to be dragged into a war in Europe, the public statement cited above had exactly the effect he intended. Editorials began appearing that same day in various publications calling for exactly the remedy that Wilson proposed and excoriating the obstructing Senators as, “tramps” and “wretches” eager to reject, “Their country’s conscience and courage in order to make a Prussian holiday.” Later still on March 5^th – in a frankly impressive display of promptness – Congress re-convened for a special session, whereupon Senate Majority Leader Thomas Martin (1847-1919) introduced a motion to amend the standing rules of that body so as to allow for a vote capable of limiting debate. Three days later, on March 8^th, the so-called “Martin Resolution” was accordingly adopted by a vote of seventy-three to six. Being a compromise between those Senators who preferred a return to the procedure embodied by the previous question rule and those who opposed any limitations on debate but felt pressured by President Wilson’s invocation of public opinion to make some manner of concession, the Martin Resolution allowed for a vote of two-thirds of those present in the chamber to invoke what is called “cloture.” Thereafter, no Senator would be permitted to speak upon the motion under consideration for more than one hour and amendments could only be made as the result of unanimous consent. Filibusters were still possible, to be sure, so long as two-thirds of those present failed to agree to prevent them or to end them. But the Senate would no longer be forced to simply wait out every potential obstructionist. If two-thirds of those present decided that it was time to proceed to a vote, the filibuster would be broken and a vote would immediately commence.

    Granting that this rules change represented a significant break with Senate precedent – abandoning, as it did, a tradition stretching back nearly one hundred years – the long-term effects of the Martin Resolution took some time to be felt in earnest. In the decade between its adoption in 1917 and 1927, for example, a cloture motion was voted on by the Senate a mere ten times, and of those it was sustained only four times in total. The first such occasion – and perhaps the most famous – came in 1919 when the Senate voted to end debate on the Treaty of Versailles only to then reject it owing to seemingly intractable differences between the policy priorities of President Wilson and Senator Henry Cabot Lodge (1850-1924). The three subsequent occasions came pursuant to somewhat less weighty legislation, though the bills in question were very characteristic of their era. In 1926, the Senate invoked cloture and then voted against joining the Permanent Court of International Justice; in 1927, it invoked cloture again so that it could reject an early version of what would become one of the Glass-Steagall banking acts; and then it did so for a second time in ‘27 before voting to establish the Bureau of Prohibition as an independent entity within the Department of the Treasury. In the nearly forty years that would follow, such occasions became even rarer still.

    Between 1927 and the beginning of 1964, a cloture vote was sustained in the Senate only once, when Senators opted to end debate and then voted to ratify the controversial Communications Satellite Act of 1962. Evidently, while a remedy was now in place to limit debate and thus stave off the threat of the filibuster, Senators remained generally reluctant to make use of it. In part, this was surely because of the high threshold that had been set. Establishing a viable consensus among two-thirds of between ninety-eight and one hundred legislators was no mean feat, and one whose inherent challenge surely scared off many potential seekers of cloture during these same decades. But there was also some remaining opprobrium, to the thinking of some Senators, in the very notion of limiting debate. Notwithstanding the social, political, and cultural turbulence that the nation experienced over the course of the Progressive Era, WWI, the Great Depression, and WWII, certain Senators – perhaps even a majority – still considered their chamber to be a bastion of collegiality and mutual respect. Any more than disruptive filibusters were to be encouraged among the rank and file, motions to forcibly cut off debate doubtless appeared too aggressive – too uncongenial – to even contemplate.

    Southern Senators in particular attempted to develop this thinking into a sort of unquestioned civic norm. Their goal, they claimed, was the protection of minority rights and freedom of debate. Issues of great national importance needed to be talked out to the fullest, and so they were against cloture, categorically, in every possible application. In actual fact, however, this protestation of principle was nothing more than careful strategy. If Southern Senators, to a man, resolutely refused to invoke cloture, then it would become that much easier for them to stand against cloture attempts when they themselves attempted a filibuster. That they also refrained from filibustering any legislation but that which pertained to civil rights made clear enough their true intentions. They wanted to be able to block votes on such undesirable measures as they knew a majority would support while at the same time making the legitimate means of breaking their legislative firewall appear unprincipled and overly hostile. It was a substantially transparent set of tactics, to be sure, and one which did not always bear up under pressure. That being said, such efforts on the part of the Senate’s Southern contingent succeeded far more often than it failed. In the nearly forty-year period between 1927 and 1964, Southern filibusters defeated anti-lynching legislation (in 1922, 1935, and 1938), anti-poll-tax legislation (in 1942, 1944, and 1946), and various other civil rights bills (in 1946, 1950, 1957, 1960, and 1962), all without cloture being invoked a single time. The filibuster, in essence, became a single-use tool, and cloture, while still valid, became too politically toxic to touch. 

The Purpose and Powers of the Senate, Part XVIII: “A Nation of Buckaniers”

    In addition to the events of the Philadelphia Convention (1787) – during which time the shape and purpose of the thing was described, debated, and settled – there have been two historical developments which could be said to have fundamentally defined the modern form of the United States Senate. One was the gradual evolution of the parliamentary procedure known as the filibuster between the early 19^th century and 1917. This process was not a particularly deliberate one – the end result being something more like an accident that has since been layered over with the sheen of tradition – but it nevertheless represents one of the most consequential changes to the basic manner in which the Senate conducts its everyday business. The other, meanwhile, was the essential structural changes wrought by the ratification of the 17^th Amendment in 1913. By altering the relevant terms of the Constitution so that Senators were thereafter to be popularly elected rather than legislatively appointed, this modification to the framework of government originally established in 1787 drastically transformed the relationship between the Senate and the American people. No longer the picked creatures of the various state assemblies, Senators became vote-chasers like their counterparts in the House of Representatives, as well as notably more enmeshed in federal affairs rather than local. Between these two developments, the end result has been the emergence of distinctly different political dynamic than that which the Framers explicitly intended for the Senate. Having been designed to serve as a fundamentally aristocratic body – in as much as it would represent the nation’s landed and monied interests – it has instead become the stomping ground of populists and party hacks. Having been granted certain responsibilities for the purpose of applying state discretion to federal decisions, it has since transformed into an instrument by which the majority party obstructs its opponents to the point of complete and total standstill. To be sure, this outcome is nowhere close to what the Framers originally intended. For that matter, neither does it likely resemble what those who gave rise to the filibuster or to the 17^th Amendment particularly desired, either. In the end, however, these facts matter little. The Senate is what it is. And it is likely better, in the immediate, to prioritize understanding over lamentation.

    The emergence of the filibuster as a stock-standard aspect of how the United States Senate currently functions makes, as aforementioned, for a rather strange and lengthy story. It was not the intended creation of any individual or group, nor the culmination of a persistent and well-organized campaign. A thing of rules and procedure, the filibuster was never something that those outside the confines of the Senate were generally even aware was possible before it was definitively established at the very end of the 1910s. Indeed – and as mentioned above – it rather came about as the result of an accident. Or perhaps, to put a finer point on it, a series of accidents. Or perhaps, to be still more specific, one accident, some creative thinking, and a good deal of pent-up frustration. The strangeness of it all is by now hopefully becoming apparent. In any case, the story can fairly safely be said to be begin in the year 1789. The Constitution had been ratified by a sufficient number of states to come into force in June of the previous year – being nine of thirteen – after which Virginia, New York, and North Carolina added their names to the tally. Rhode Island as yet remained outside the new union of states, but this would continue to be the case for only a short while more. In the meantime, the remaining twelve states set about preparing for and conducting the various elections and appointments necessary for their participation in the newly erected national government. Representatives were sent to the House, Senators were appointed to the Senate, Electors were chosen by whatever means the states decreed, and George Washington – to the surprise of no one – was chosen as the nation’s first President. Shortly thereafter, as these selfsame institutions set themselves to the task of establishing their various operating procedures going forward, the majority in the Senate adopted one of many rules for the purpose of holding debates and scheduling votes. This rule, in the form of a “previous question” motion, would allow discussion on a given subject to be brought to a close by a simple majority vote. If the vote succeeded, debate would cease and another vote would be immediately held on the motion that had previously been debated. If the vote failed, debate would continue until either every member present was satisfied or another previous question motion was introduced.

    This kind of procedure was hardly novel at the time that the Senate adopted it. Indeed, it had been a part of English parliamentary tradition since at least the early 17^th century. And in terms of the rationale behind it in the specific context of the United States Senate, its intended purpose could not have been more obvious. In order to prevent debate on a given question from continuing ad infinitum, Senators were to have at their disposal a simple and dependable means of ending discussion and proceeding to a vote. So long as a (simple) majority of those present voted in the affirmative, debate would cease and the business of the chamber would be allowed to continue. Granted, there did not seem to be any particularly pressing need for such a procedure. That is to say, it did not appear, circa 1789, that the Senate was bound to become the site of deadlock resulting from debates that refused to end. But it was certainly possible that the debate on a given subject – whether in good faith or bad – might drag on somewhat longer than the majority of Senators would prefer. The previous question motion might accordingly be thought of as a kind of parliamentary safety valve. All things going to plan, it would not be needed. But if something did go wrong – if a maverick Senator attempted to hijack the debate on a motion they opposed to as to prevent its passage – all of those involved would surely be glad of its existence.

    Enter, at this stage, one Aaron Burr, former Senator from New York and now Vice-President of the United States. Distressingly close on the heels of his fateful encounter with fellow New Yorker Alexander Hamilton at Weehawken, New Jersey in 1804, Burr made a number of recommendations to the membership of the Senate in his capacity as that body’s formal president. One of these, circa 1805, was that the leadership of the Senate agree to dispense with the previous question rule. Though less than a decade into its life, Burr observed, the upper house of Congress had already become overburdened with procedures and conventions that served only to frustrate its ability to perform its various duties under the Constitution. As many of these rules as could be reasonably eliminated, the Vice-President thus affirmed, should accordingly have been purged. As a previous question motion had been introduced only once in the preceding four years, it stood out as being particularly redundant. Burr did not remain in the office of Vice-President for much longer after offering this advice, of course, but the Senate leadership did ultimately opt to take it to heart. In 1806, pursuant to their former presiding officer’s advice, the Senate ceased to observe the previous question rule. Debate on any motion was thereafter permitted to continue indefinitely.      

    This was not an outcome which the contemporary leadership of the Senate desired, it bears noting. Far from aiming to provide potential obstructionists with a tool to aid in their efforts to frustrate the will of the majority, they were simply following the advice of a fellow parliamentarian. The Senate had become rather hedged-in by with rules and procedures, and the previous question motion had gotten very little use thus far. So they eliminated it – perhaps unthinkingly, but with the best of intentions – and then they moved on with their business. Indeed, the country might be said to have moved on with its business, for the absence of the previous question rule had virtually no short-term aftereffects. It was now possible, to be sure, for a small group of Senators – or even a single Senator – to prevent a vote on a motion which they opposed from being held by essentially “talking it to death,” but this remained, for several decades, an entirely theoretical outcome. Over the course of the 1810s and 1820, rising tensions between southern states and northern states over the legal status and potential expansion of slavery – and more specifically the impact of these tensions on the decision-making of northern politicians vis-à-vis their fellow party members from the South – actually had the effect of preventing the most dramatic type of confrontation. Northerners who sought to maintain the cooperation of their southern counterparts adopted a course of conciliation and compromise, the result of which was the maintenance of a somewhat precarious balance of power whereby neither major party – first the Federalists and the Republicans, then the Whigs and the Democrats – were all that willing to allow their respective members to actively weaponize their discontent. Blatant obstructionism, in essence, was seen as too drastic to be sustainable if the dominant parties were going to hold themselves together. 

    There state of affairs did not last indefinitely, of course, particularly as the 1810s and 1820s gave way to the 1830s and 1840s and certain issues emerged which were more partisan than sectional in character. It is also worth noting that the absence of a previous question rule had by this point resulted in the emergence of a unique culture of debate whereby limits upon discussion were viewed by many Senators as being fundamentally incompatible with the inherent dignity of the institution itself. Unlimited debate, they affirmed, was an exclusive privilege of the Senate upon which no one had the right to infringe. These two developments coalesced rather neatly in 1841 when the sudden death of Whig President William Henry Harrison (1773-1841) resulted in the elevation of his running mate, former-Democrat-turned-Whig John Tyler (1790-1862), to the office of chief executive. As the Whigs also possessed a majority in both houses of Congress, the way seemed clear for Tyler to set about implementing his party’s legislative agenda. The Democratic minority in the Senate, however – numbering some twenty-two out of fifty-two members – were disinclined to simply sit back and let this happen without a fight. Though they controlled, between them, less than fifty percent of the available votes, the Democrats nevertheless resolved to form a wall through which the Whigs could not penetrate. Their weapon of choice? Debate. As Missouri Democrat Thomas Hart Benton (1782-1858) later recalled in his memoirs, he and his colleagues had settled,

On a system, and with a thorough organization, and on a perfect understanding. There were but twenty-two of us, but every one a speaker, and effective. We kept their measures upon the anvil, and hammered them continually; we impaled them against the wall, and stabbed them incessantly.

    But while this description of the tactic in question would seem to make the obstructionist intentions of the Senate Democrats plain enough, their rhetoric at the time was decidedly self-righteous. They were not attempting to obstruct the majority in contravention of the will of the American people, they affirmed, but rather simply seeking to exercise their right to debate the issues placed before them to the fullest extent. Indeed, far from this dedication to freedom of expression within the Senate marking the Democrats out as obstructionists, it rather made plain that all those who sought to limit debate – such as the Whig majority – lacked respect for the rights of their colleagues in the upper chamber. As Democrat John C. Calhoun (1782-1850) put it when Whig Henry Clay (1777-1852) attempted to introduce a strict time limit on debate, “An attempt to rule the Senate by the despotism of the gag [is] as bad as introducing a band of soldiers into it to force measures through by pitching opposing Senators out of the windows.” Notwithstanding this kind of high-minded talk, the actions of the Democrats reveal the true nature of their goals. First, when the Whigs attempted to fire the existing publisher of the Congressional Globe – that is, the public record of Congressional proceedings – so as to appoint a new publisher and thus dispense a modicum of patronage, the Democratic majority dragged out the resulting debate in the Senate for a full ten days. And while they were ultimately unsuccessful, they tried the same tactic again in the summer of 1841 when the Whigs attempted to pass a bill that would have re-established the 2^nd Bank of the United States. This latter effort, which also failed, went on for a further fourteen days. Notwithstanding these underwhelming early outcomes, however, the end result was the consolidation of a potentially useful parliamentary tactic. Fearful, as ever, that the nation’s defining sectional disagreements would eventually tear their organizations apart, party leaders sought stability in such actions as would rally their followers around them. Using the principle of unlimited debate to block explicitly partisan legislation, even if the effort itself failed, effectively served the purpose of binding the dominant parties together.

    None of this is to say, mind you, that as the utility of this kind of legislative obstruction became widely apparent Senators immediately embraced the tactic without any second thoughts. On the contrary – and as is keenly pointed out by Catherine Fisk and Erwin Chemerinsky in their 1997 Stanford Law Review article on the history of the filibuster from which much of this narrative was sourced – Senators remained markedly ambivalent about the whole idea throughout most of the 19^th century. From very early in its history, the membership of the Senate thought of their beloved institution as one defined chiefly by collegiality and the concept of mutual respect. Senators were supposed to behave with a degree of courtesy towards one another, and blatant obstructionism was accordingly viewed as a gesture of contempt for those who were supposed to be one’s colleagues. By the 1830s and 1840s, however, Senators had also come to believe that there was something undeniably heroic in taking a solitary stand against an otherwise popular initiative. Even an unsuccessful attempt at blocking a vote could win respect for the Senator in question among those who opposed their efforts, and there were certainly times, in hindsight, when the obstructionist was proven to be justified. Nowhere is this emotional contradiction better exemplified than in the name that the tactic eventually adopted in the 1850s. A “filibuster,” in the original sense, was a kind of freebooter or buccaneer, and the manner by which this term entered the American legislative lexicon is both complex and exceptionally telling.

    In the 1850s, it seemed, at a time when the terms of the Missouri Compromise (1820) still held the nation’s free states and slave states in strict parity, a practice emerged – entirely unauthorized by the United States government – whereby a relatively small number of southerners possessed of sufficient wealth raised what were effectively private armies for the purpose of invading and conquering parts of Mexico, the Caribbean, and South America. The intent of such expeditions was to effectively circumvent the rigid control which the aforementioned compromise sought to enforce upon the admission of slave states to the American republic. Upon overthrowing the local regime and installing a government friendly to the United States, these militant “filibusters” – from the Dutch vrijbuiter by way of the Spanish filibustero – intended for their newfound acquisitions to then be annexed by the American republic as slave states. Naturally, these efforts met with the approval of those members of the contemporary American political class who held restrictions upon the growth of slavery to be fundamentally unjust. Filibusters and their efforts were accordingly thrust into the center of domestic debate over American foreign policy in the 1850s, with the dominant parties each adopting their own set positions. The more ardently pro-slavery Democrats made plain their support of such private adventurism; the more conciliatory Whigs conversely derided such efforts as little better than piracy.

    On January 3^rd of 1853, amidst a discussion in the House of Representatives on this very same subject, the term “filibuster” made its debut as a term of legislative significance. North Carolina Democrat Abraham W. Venable (1799-1876), in the midst of a debate on the topic of American policy towards the rebellious Spanish colony of Cuba, broke with his party by openly endorsing the Whig policy of non-intervention. The Democratic leadership, it seemed, was eager for the United States to acquire the restive island, preferably by way of a filibustering expedition, to which strategy Venable declared himself entirely opposed. “If the policy of any Administration [,]” he said,

Is to make the United States the brigands of the world; if we are to become a race, a nation of buckaniers; if we are to adopt the policy of falling upon our weaker neighbors and appropriating their possessions, and thus fill the measure of national iniquity, I utterly denounce the policy [.]

The result, unsurprisingly, was a somewhat heated exchange between Venable and his fellow Democrats. The one who ultimately delivered the most stinging retort was former Governor of Mississippi Albert G. Brown (1813-1880), who pointedly exclaimed that,

When I saw my friend standing on the other side of the House filibustering, as I thought, against the United States, surrounded, as he was, by admiring Whigs, I did not know what to think. It seemed to me he had taken formal leave of his old States-Rights friends, and gone over to the Whigs.

At a time when Congress was sharply and bitterly divided, such an accusation was bound to cause offense, particularly when aimed at someone whose stated purpose was the opposition of such piratical acts.

    But while the concept of the filibuster was certainly bound up with all sorts of negative connotations – lawlessness, self-interest, barbarity, etc. – it also carried with it an air of glamor, heroism, and adventure. In the American tradition, masculinity, white supremacy, and electoral politics have long been three strands of the same dominant cultural thread. And while the leader of a filibustering expedition might have been, in certain circles in the 1850s, an object of scorn and derision, in others he inevitably became a symbol of assertive male power and the superiority of the white race. To be a filibuster, within this latter context, was understood as a fundamentally virtuous profession, particularly as it combined an aggressive brand of individualism with a sense of white entitlement to valuable natural resources whose ostensible owners were thought to be racially inferior. Holding such feelings about the practice did not mean that one couldn’t deploy it in a such a manner as to cause insult, of course. The aforementioned Congressman Brown, who referred to his colleague Venable as a filibuster in an attempt to portray him as having turned against the best interests of his country, was also among the most ardent supporters of the private conquest and subsequent American annexation of the likes of Cuba and Mexico. These kinds of ambiguous feelings towards the whole concept of the filibuster are doubtless what soon enough secured its place as the preferred term within Congress for a kind of single-minded legislative obstructionism. Within ten years later, by as early as 1863, Senators were actively referring to excessive delaying tactics as, “What is commonly called filibustering [,]” while those who found themselves accused of the same reacted with horror at the very idea. Undeniably, such behavior stood in opposition to the supposed collegiality of the Senate, not to mention the right of the majority to have its way. But it was also, in certain cases, the noblest thing that an individual legislator could do. Trying to hold back the tide of history through sheer force of will? Whatever they might have said about the filibuster in public, more than a few Senators privately aspired to such an ideal.

    And the Senate leadership, as it turned out, was as wishy-washy as the rank-and-file. While, throughout this period, the rules governing debate were continually changed so as to permit the kinds of practices now commonly grouped under the heading of the filibuster – the delivery of speech that is not relevant to the question, the introduction of motions to reconsider, etc. – procedures were also successively adopted which seemed to place limits upon truly unlimited discussion. Consent agreements, for example, began to be implemented as early as the 1840s in advance of debates on particularly controversial subjects for the purpose of establishing a pre-set date for a vote. Likewise, in an effort to prevent filibuster attempts from completely disrupting the session’s schedule – arguably their very purpose – a rule was established in the early 1870s permitting questions known to be sources of controversy to be moved to the very end of the legislative calendar. At any time, of course, any one of these rules could have been done away with or altered. The Senate could have unapologetically embraced the concept of unlimited debate and tossed out whatever limitations were then on the books. Then again, its members could have alternately chosen to apply more stringent standards of relevancy to speech, applied consent agreements to every question on the docket, or simply re-adopted the previous question rule that their forebears had dispensed with so casually in 1806. The fact that they did not – that they instead chose a middle path between allowing procedural obstruction and banning it entirely – would seem to reaffirm the existence of a certain ambiguous attitude towards the filibuster. 19^th century Senators were not wholly in support of the practice, particularly as it infringed upon their efforts to cultivate an air of gentility in the upper chamber. But neither were they willing to give it up altogether as a potentially rewarding piece of partisan strategy.

The Purpose and Powers of the Senate, Part XVII: Maladministration and Misdemeanors, contd.

    Granting the soundness of Gouverneur Morris’s September 8^th argument in general – that, “There could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out” – there would seem to be at least one scenario for which he entirely failed to account. It was an understandable oversight, given what he knew and what he assumed about how the draft constitution would operate, but one which would now seem rather glaring in its obviousness. His assumption, as noted above, was that a truly incompetent President would inevitably be removed from office upon having to face re-election, thus allowing the House and the Senate to instead concentrate their attention upon policing actual crimes or misdemeanors. What Morris takes as a given, of course, is that Senators would not want a President to be removed unless they were incompetent or guilty of some category of misdeed. But what if a majority of Senators simply didn’t like the President very much? What if they felt that the President was getting in the way of their political objectives? Doubtless, Morris felt this an unlikely occurrence given the manner by which the chief executive was to be elected under the Constitution. The same state legislatures whose responsibility it was to appoint Senators were also tasked with appointing slates of electors who would in turn cast their vote for President. Recalling that this was all intended to take place in the complete absence of political parties, one is perhaps given to understand why Morris did not perceive this to be an issue. Logic would seem to dictate that the state legislators would choose their Senators and their electors in such a way as to almost always guarantee a healthy relationship between the President and the Senate. And why should they have done otherwise? Why should a given state assembly select a Senator possessed of opposing views to the man they knew that their chosen electors would support? Not every slate of electors would end up voting for the winner, of course, and only one-third of the Senate would be up for re-election at the same time as the President, but the end result would almost certainly be the same. Come what may, there would more than likely be a majority of Senators in any given session of Congress who had been appointed by state legislatures that had also helped to elect the President.

    What Morris did not consider, however – nor would he have had any reason to – was the possibility that a President might at some point be chosen by a different electorate than the Senate. In 1787, as aforementioned – and for some time thereafter – the assumption of most of the Framers was that the legislatures of the various states would simply choose those states’ electors directly. The draft constitution did not specific this course of action, rather leaving it up to the various states how their respective electors were chosen. But the “legislative method” was definitely the simplest option, and likely for that reason became the default across most of the states. But what if, in the fullness of time, certain states began to experiment with new methods for choosing electors? And what if, as these same experiments were being conducted, informal political factionalism gave way to a rigid, formal party system? Both of these outcomes did eventually take place, of course. Over the same broad period of time that the Anti-Administration and Pro-Administration factions which dominated the 1st United States Congress (1789-1791) gave way to the Republicans and the Federalists and then to the Democrats and the Whigs, states slowly but surely began to abandon the legislative method in favor of a simple popular vote. Not every state made this transition, it bears noting, and those that did certainly didn’t do so in a coordinated manner. But the impetus and the end results were broadly the same. The establishment of a consolidated party system encouraged further competition in the electoral sphere, with the appointment of presidential electors becoming a primary partisan battlefield. And while the legislative method was favored by both sides initially – no doubt because it streamlined the electoral calendar by allowing legislative elections to determine a state’s presidential vote in advance – the populist rhetoric of the Republicans/Democrats eventually led them to support universal male suffrage as the default mode in all elections. States controlled by these populist partisans accordingly began adopting popular election as their preferred method of selecting presidential electors, to the extent that, by 1832, the only state that stuck fast to the legislative method was hidebound South Carolina.

    The end result of these developments within the context of the relationship between the President and the Senate – for those among our readers who by now have lost the thread – was the emergence of a kind of “gap” in terms of how each of them were elected. That is to say, by the beginning of the 1830s, Senators and presidential electors were no longer both chosen by the same state legislatures. Senators were still appointed by the members of these state assemblies, but presidential electors were almost all chosen as the result of a popular vote. In consequence, while the membership of the Senate throughout this period remained closely intertwined with state and party politics, presidential elections took on an increasingly popular character. In practice, this meant that parties which could rely on the vagaries of the apportionment process to secure reliable majorities in state legislative elections – which in turn guaranteed them control over Senate appointments – were at times forced to confront the fact that a raw count of the voters during a presidential election did not necessarily come out in their favor. Careful gerrymandering may have ensured that “undesirable elements” were undercounted in terms of the state legislative vote, but a “winner-take-all” ballot could potentially reveal that the dominant party was actually in the minority in terms of popular support. Senators might accordingly have found themselves in the awkward position of being from the opposing party to that of the President who had won their home state.

    To construct a hypothetical based on this sort of scenario, imagine a Senate dominated by one party which controls the majority of state legislatures and a President from the opposing party who enjoys overwhelming popular support. The President rails against the extent to which his opponents have rigged state elections in their favor but at no point oversteps his authority or behaves in any way improper. The Senate majority rankles at the popular discontent that the President is stirring up but determines to wait until the next election before making their move. In spite of their desire to be rid of this troublesome rabble-rouser, the party which holds the majority feels that this time around they can swing the vote in their favor. But when the votes are eventually tallied, the opposite has in fact occurred; the popular President is overwhelmingly re-elected. The Senate majority now feels deeply threatened, fearing as they do that his victory will only embolden the President to pursue a campaign of wholesale electoral reform. They tried to make their case to the people, painted their opponent as an incompetent, but the people refused to listen. All hope indeed seems lost until the party leadership determines that impeachment is the only viable course. It is not permitted by the Constitution for Congress to remove a President simply because of a disagreement; not even actual incompetence constitutes ground for conviction and dismissal. But what else can the opposing party do? Allow the President to continue with his campaign and watch as their powerbase is systematically dismantled? Never. So, a series of charges are drawn up – false though they may be – a series of votes are held in the House, the trial goes to the Senate, and the popular President is removed.

    Mr. Morris, as aforementioned, did not think such an outcome possible. He believed that Senators would restrict themselves to matters of crime and of fact, and that pursuant to their responsibilities would never falsely convict a chief executive. But why not? Granting that he was speaking at a time when the political institutions and political culture of the United States appeared unlikely to produce a result of the type described above, he still showed a degree of faith in his fellow Americans that would seem nothing short of heroic. Parties, in the formal sense, might not have existed in 1787, but political factionalism was definitely a feature of contemporary American political culture. Indeed, Morris’s home state of Pennsylvania was famous for the fractious character of its public life, with debates during the colonial era between the supporters and the detractors of the proprietary Penn family at length giving way to a deeply entrenched rivalry between the state’s conservative and radical political elements. Why, then, with the example of just this one state in mind, would he have thought it impossible for Senators to, “Say untruly on their oaths [?]” Why is it he could never imagine there coming a time in American history when deeply acrimonious partisan disagreement was the norm at even the highest levels of government? None of this is to say, mind you, that Morris should be castigated for his apparent  naivete. That he did not believe his countrymen capable of such self-serving duplicity is hardly a knock against the man. That being said, his perspective on this issue in particular would seem to indicate just how it was at least some of the Framers understood their country and its inhabitants.

    Granting that much of the debate which took place over the course of the Philadelphia Convention concerned the various remote possibilities and edge cases that might have resulted from certain provisions described by the proposed constitution, many of the Framers nevertheless showed a tremendous amount of faith in both their fellow citizens and generations to come. They were not guileless, to be sure. On the contrary, they invested a great deal of time and effort into devising safeguards and mechanisms intended to prevent the responsibilities which they were allocating from being abused for personal gain. But it was mainly individuals whom the Framers seemed inclined to mistrust. Doubtless owing to their experiences with reactionary royal governors and with the British Crown itself during the colonial era and the Revolution, the popular suspicion of the American people tended to focus on the idea of corrupt, arbitrary, and self-serving executives. And while this tendency did lead to the creation of a draft constitution which, though it did describe a substantially powerful chief executive, carefully constrained and checked every expression of executive power, it also necessarily glossed over the possibilities and implications of mass action, mass movements, or partisan organization. Legislatures, by and large, were not viewed as sources of danger by the Framers, with perhaps the notable exception of the cannily observant James Madison. He was among the very few of his colleagues who understood the American experience in 1780s as an object lesson in the possible emergence of a kind of legislative tyranny. Gouverneur Morris, as his cited comments make plain, was among the handful of other Framers who shared this mindset, but most of their colleagues held broadly opposing views. To their thinking, a truly representative legislature could not possibly pose a threat to the people’s liberties. Indeed, how could it? Being elected by and from among them, it would be the people’s proxy, and would guard their rights just as naturally as it would guard its own.

    As noted above, what this kind of mindset entirely failed to consider was the eventual emergence in the United States of America of both an entrenched, stable party system and a professional political class. The creation of one, to be sure, would make the advent of the other that much more likely. A formal party apparatus with sophisticated funding mechanisms and a well-developed communications network would make it much easier for individual office-seekers to pursue their political ambitions without being forced to rely exclusively on personal wealth. Indeed, pursuant to a degree of proven and repeated success, politics might itself become a source of wealth and prestige for a given handful of lucky individuals. And as these people built upon their prominence in public life and established themselves as popular brands, family dynasties might conceivably be formed from which every generation would be expected to contribute legislators and executives fit to carrying on the noble tradition of public service. Granted, even among these pseudo-aristocrats there would still exist truly popular public servants who could claim with all sincerity to represent the ideals and assumptions of their constituents, but how much sway might these transients hold over the party apparatus that supports them? Real power would surely rest in the hands of the most prominent, the wealthiest, and those with the connections needed to keep the party going. An urban artisan or a small-scale farmer might succeed in serving for a term or two in Congress, but real staying power would belong to those who could secure funding and recognition indefinitely. These men, who would between them hold the reins of the party apparatuses, would accordingly form the nucleus of American political life.

    Bearing all of this in mind, the hypothetical described above would not seem particularly unlikely. Professional politicians, driven by a desire to strengthen the party apparatus from which they largely derived their social prominence, would almost certainly develop a wildly divergent understanding of what was best for their contrary from that of the average American citizen. And if this was to be the case, it might rather be taken as a given that the explicitly partisan electors of the various Senators representing the states in Congress would also have very different ideas about what constituted a fit President than might the voters in those same states. Driven by potentially opposing concerns, the state legislatures might choose mainly conservative Senators while the voters as a whole might select an ardently reformist chief executive. And in light of the conflict that was bound to result, why should it have been unthinkable for the aforementioned Senators to act in a manner less than honest? If their careers, their preeminence, and even their fortunes were on the line, why shouldn’t they have made use of whatever tools were at their disposal? The people would be displeased, there can be no doubt, but what does a professional politician care about displeasing the people? Gerrymandering is what wins elections, and media coverage, and fearmongering. The people are not to be followed, but led, directed, even manipulated. They don’t know, quite simply, what is good for them. And if, now and then, they succeed in expressing their dissent at the ballot box, the only sensible thing to do is act from purest self-preservation.

    This is, to be sure, a deeply cynical description of American democracy as it developed in the middle of the 19^th century, but one which, in fairness, cannot be said to ring entirely false. And in any case, what is arguably more important than how or why things progressed to this point is the fact that the Framers – for the most part – did not predict anything of the sort. They did not necessarily fear the things which history makes it clear that they should have. On the contrary, far from foreseeing the emergence of an increasingly disconnected and self-serving professional political class deeply invested in the success of a set of formal political parties, most of them were far more suspicious of the rise of a Julius Caesar-esque demagogue whose personal popularity and boundless ambition would allow them to subvert the rule of law and attain a degree of practical authority verging on imperial. They were not wrong, necessarily, to fear this latter outcome – as recent history in particular has increasingly shown – but the fact that it received the greatest share of their attention would seem to say a great deal about how they viewed both their country’s future and the role that their work would play in the same. By and large – with the aforementioned exceptions – the Framers were remarkably hopeful when it came to the fellow citizens. And while they did anticipate that personal ambition would inevitably play some role in the rhythms and dynamics of public life in the American republic – to the degree that they deliberately structured certain powerful institutions so as to redirect ambition in collectively constructive ways – they also appeared to take it for granted that public service would become a central driving force at the heart of the American character.

    Consider, by way of further example, the aforementioned manner by which the Constitution was designed to balance ambition against ambition in pursuit of a safe and functional administrative equilibrium. This was Madison’s pet initiative in particular, but one which he managed to convince the majority of his colleagues to adopt. Rather than attempt to devise a myriad of mechanisms and safeguards for the purpose of restraining or disincentivizing the aspirations of every officer of the national government, the Virginian instead proposed that each branch, or department, or institution, or individual be allowed to pursue what came naturally. Legislators should be allowed to seek after legislative supremacy, and judges after judicial supremacy, and executives after executive supremacy, not without limits, but to the extent that their respective efforts would end up cancelling each other out. The legislature would check the executive, the executive would check the judicial, the judicial would check the legislative, and so on. The final result, all things going to plan, would be that the three powerful branches of government would hold each other in stasis while also being relatively unfettered from excessive constitutional restrictions. It would not be a neat system, to be sure, nor one that didn’t flirt with danger, but such was bound to be the case when human beings were the raw material. As Madison accordingly reflected a short time later in Federalist No. 51,  

It may be a reflection on human nature, that such devices should be necessary to control the abuses of Government. But what is Government itself, but the greatest of all reflections on human nature? If men were angels, no Government would be necessary […] In framing a Government which is to be administered by men over men, the great difficulty lies in this: you must first enable the Government to control the governed; and in the next place oblige it to control itself. A dependence on the People is, no doubt, the primary control on the Government; but experience has taught mankind the necessity of auxiliary precautions.                 

    Thoughtful though this particular arrangement of ambition and responsibility most assuredly was, however, it did necessarily take as its basis a fundamental assumption as to the nature of political power in the American republic. Namely, it more or less prefigured the notion that those who attained positions of public trust in the United States would pursue authority for the purpose of achieving some manner of general good. That is, it assumed a broadly altruistic motivation on the part of the individuals whose ambitions were going to be directed towards maintaining a stable balance of power. As Madison would have it – along with those he managed to convince – the three branches of government would constantly probe and prod at each other in search of some manner of advantage for the purpose of more capably achieving the various policy goals they desired. The executive branch would seek more executive power in order to more capably wield the authority which it felt was its right; the legislative branch would seek to expand its legislative authority so as to better serve its various constituents; and the judicial branch would pursue a wider degree of judicial authority for the purpose of securing its rulings and ensuring that its understanding of the law reigned supreme. The American people, in all cases, were to be the beneficiaries of these efforts, just as they were to benefit from the resulting clash and stabilization. But what if, given the aforementioned emergence of a socially disconnected political class, that last aspect fell away? What if, no longer all that concerned with serving a people whose electoral support had become increasingly inconsequential, the three branches of government which the Constitution described fell to scrambling for power solely for its own sake?

    Perhaps unsurprisingly, this did not seem to be an outcome which any of the Framers felt much cause to contemplate. Granting that none of them were what one might now refer to as “populist” in their outlook – which is to say that their views on democracy and popular participation in government were fairly conservative – they were still in no way inclined to predict the simultaneous emergence of an entrenched party system, a professional political class, and a large, relatively unrestricted electorate. These three things have since essentially combined to produce a political climate in which the goals and priorities of public servants and those of their ostensible constituents are quite often found to be in direct opposition. In consequence, while members of the legislative and executive branches of the United States Government still theoretically pursue such popular objectives as they feel will secure their continued reelection, in actual fact these individuals tend to pursue only such specific goals as their party organizations and financial backers have identified as being of particular importance. Public office is accordingly sought after, less out of a desire to deliver desirable outcomes to given groups of constituents than as a means of simply gaining and holding onto power. Within such a climate, while the inherently oppositional arrangement of authority which Madison described may still function to prevent any one institution from attaining supremacy over all others, it would no longer seem to provide much benefit to the people at large. Rather, though the system was originally structured so as to prevent any one of them from claiming victory, the three branches nevertheless persist in attempting to sabotage each other with little regard for the harm that their actions might be visiting on the American people.

    It bears noting, once again, that Madison and his colleagues ought not to be held in contempt for failing to account for the likelihood of this particular outcome. Based on their own personal experiences and their particular philosophical proclivities, they anticipated individual ambition being the most likely source of danger within a republican-style representative government. Legislatures could be trusted, they affirmed, as their connection to the people was an exceptionally direct one. And while the judiciary had historically been a source of corruption and abuse within the Anglo-American tradition, courts were fortunately both constrained by the law in how and when they could act and limited in the extent to which they could enforce their own rulings. But the authority of an executive was almost intrinsically a source of danger. Executives tended to be singular, capable of acting on their own, and they moved quickly by design. Indeed, they were by far the most active branch of any government of which they were a part. These were potentially useful characteristics, to be sure, specifically within the context of a sudden crisis on a national scale. But they might also potentially allow a particularly ambitious individual to circumvent the authority of otherwise co-equal branches of government for the purpose of elevating themselves to a paramount position of power. The governors of the various Thirteen Colonies – be they appointed by the Crown of possessed of authority in their own right – had not infrequently sought to do just that over the course of the period before and during the American Revolution, the result of which was the emergence of an abiding suspicion among the likes of the Framers as to the safety of unchecked executive power. This suspicion played a large part in determining the final shape of the Constitution, and it is to the credit of its authors that it has thus far succeeded in preventing the emergence of that which they most feared. But what they failed to account for has become far more pernicious. Indeed, the emergence of organized political parties and the professionalization of public service has so upended the basic calculus of American political life that it might now be fair to say the Constitution was written for an entirely different country than the one it now governs.

    But while this theme – i.e., the difference between what the Framers specifically intended and how the present government actually functions – is certainly an important one which bears further examination, there yet remains the conclusion of the discussions of September 8^th to account for. As previously noted, James Madison and Gouverneur Morris had given voice to opposing positions when it came to holding a potential impeachment trial in the upper house of Congress. Madison thought it unwise to do so, particularly as it would seem to make the President “improperly dependent” on the Senate, while Morris felt that the Senate could practically be trusted. There was, “No danger [,]” he said, “That the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.” The question at hand, it seemed, was whether the Senate would more often act selfishly or altruistically; would it allow the electoral process to remove unpopular but otherwise innocent chief executives or would it get into the habit of jettisoning any President that succeeded in many themselves obnoxious? Charles Pinkney of South Carolina came down very much on the side of Madison, going so far as to assert that the Senate’s untrustworthiness was a given. The President, he agreed with the Virginian, in the event that impeachment trials were to be held in the Senate, would be, “Too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst. him, and under the influence of heat and faction throw him out of office.”

    This was, to be sure, a far more guarded attitude than was all that common among the Framers. Indeed, far from holding the very concept of the legislature aloft as the bastion of liberty and responsibility in the Anglo-American tradition, Pinkney rather describes it as a source and site of “heat and faction.” Under the circumstances, this would seem to have placed him closer to Madison in terms of his philosophical proclivities and his basic suspicions than to those who conversely valued a degree of legislative supremacy. Doubtless, Pinkney had seen the same partisan excesses in his native South Carolina that Madison had witnesses in the government of the state of Virginia and came to essentially the same conclusion. Namely, that while there was no cause to grant unfettered power to the executive branch of a government, a legislature that has become the site of extreme partisan conflict could be just as tyrannical and capricious as any king, governor, or president. It therefore stood to reason that while the responsibilities and the limitations of the office of chief executive were most certainly in need of very careful consideration, so too were the powers to be granted to the relevant legislative assembly.

    The counterargument next offered by North Carolina’s Hugh Williamson is of particular interest for at least two reasons. First, it ran so completely counter to Pinkney’s assertion as to very nearly be humorous. While the South Carolinian believed that the Senate would treat its authority within the context of impeachment trials too frivolously, the North Carolinian held the opposite to be nearer to the truth. “There was more danger [,]” he said, “Of too much lenity than too much rigour towards the President, considering the number of cases in which the Senate was associated with the President.” That at so late a point in the process by which the Constitution was drafted, two of its authors disagreed on so fundamental a point as how the legislature of the proposed national government was likely to act towards the office of chief executive would seem to be, on its face, both a startling and revealing thing. The Philadelphia Convention, it seemed, while having arrived at a degree of consensus by the time it adjourned in September of 1787, evidently did not conclude in a spirit of total and perfect harmony with every outstanding issue comprehensively resolved. Rather, as the cited difference of opinion would seem to indicate, the gathering continued to be the site of thorough – one might even say fundamental – disagreements until almost the moment that it gaveled itself out of existence. Bearing this in mind, one might be even less inclined to understand the Constitution as any one of the Framers’ particular idea of perfection so much as it was simply the best result that this specific group of men could manage before they become quite sick of each other and insisted on being allowed to return home for the winter.

    The other element of Williamson’s commentary which would seem to bear further reflection is the specific reason he gave as to why he felt the Senate was liable to be too lenient with the President. It was, he said, because of, “The number of cases in which the Senate was associated with the President [,]” that the former would be disinclined to discipline the latter. Not only was this a reasonably cogent point on its own – taking account, as it did, of the degree to which the Framers had thus far tied the two institutions together for the purpose of appointing various executive and judicial officials – but it also spoke more broadly to one of the key characteristics of the Constitution as a whole. The national government which the Framers were in the process of describing was not merely a collection of administrative bodies each rigidly confined to their separate spheres and each bound by different sets of restrictions and regulations. There was to exist, make no mistake, a distinct “separation” of the various powers which they each of them possessed, but there were also a number of responsibilities which they intentionally shared. The President, for example, could not appoint federal judges. They could only nominate; the Senate held the power of confirmation. And the federal courts could not enforce their own rulings. They could only render judgement; Congress and the President held the power of enforcement. Even Congress, which in the 1770s and 1780s had single-handedly guided the war effort against Great Britain during the Revolution, could no longer carry out the prosecution of an armed conflict on its own. Under the Constitution, they could only declare war; the President was the one who commanded the military. These jurisdictional overlaps were intended chiefly as a form of restraint. By dividing certain responsibilities between several institutions, the Framers sought to prevent any one of them from attaining a tyrannical degree of supremacy. But while they did achieve that much – arguably – they had an additional consequence as well.

    So conceived, the proposed Constitution was a tightly woven tapestry of both power and restraint. In consequence, while changes may have been necessary once the basic framework was established, every alteration had the potential to unravel the entire enterprise. The comments of Pinckney and Williamson would seem to make this case between them. The former disapproved of holding impeachment trials in the Senate because that body, he felt, would too readily remove whatever chief executives a majority of its members didn’t like. The latter, meanwhile, held that the opposite was the case; that the Senate, having cooperated with the President on various executive and judicial appointments, would be reluctant to remove them from office even if evidence of their crimes was made plain. Ultimately – depending on context – both men were potentially correct. It was quite conceivable, given a difference of agendas and priorities, that a given majority in the Senate might think it a beneficial turn to remove an uncooperative President. Just so, if the Senate majority and the President were of like minds and had worked well together, it was equally conceivable that said majority might decline to remove a chief executive whose guilt was otherwise obvious. That either of these scenarios could have come to pass would seem to speak to the quality of equilibrium which the Framers had between them achieved. Sometimes the various branches of the national government would be inclined to work together and at other times they would be inclined to work at cross-purposes. So long as the administrative framework of which they were a part held them in this manner of stasis, the determining factors would depend on context; how popular were the major players, what were their goals, were their objectives strictly legal, and so forth.

    To change one element of this arrangement, in consequence, would be to almost certainly upend the entire balance of federal power. Alterations could be made, of course. Indeed, some modifications were at some point very likely to prove essential. But the very nature of the beast would mean that any such changes would need to be considered with great care. Roger Sherman’s response to Mr. Williamson likewise spoke to this basic truth. The gentleman from Connecticut, it seemed, was in disagreement with Pinkney and Madison. Rather than hold the Senate as an improper site for impeachment trials – or affirm the validity of instead holding them in the Supreme Court – he instead described, “The Supreme Court as improper to try the President,” specifically, “Because the Judges would be appointed by him.” As with Williamson’s preceding remark, this was a perfectly valid observation in its own right. While a President who had nominated a given Supreme Court Justice would have no means at their disposal to threaten said jurist in order to secure their cooperation during an impeachment trial, it was surely better to avoid even the appearance of impropriety by ensuring that such an outcome could never actually take place. But what Mr. Sherman’s commentary also revealed was how interconnected the various institutions described by the proposed constitution had become. It was true, as Williamson noted, that the relationship which the document in question described between the Senate and the President might potentially incline the former towards excessive leniency to the latter. But it was also true, as Sherman noted, that allowing the Supreme Court to try impeachments might have represented an even worse outcome given that some number of the judges were likely to owe their positions to the defendant.

    The reason for this, of course, was that federal justices were to be nominated by the President and approved or denied by the Senate, the purpose of which, in turn, was to prevent federal jurists from becoming the cronies of the chief executive. What the resulting disagreement ultimately amounted to, therefore, was a choice between different qualities of entanglement. Was it preferable for the President to be tried by those he partnered with in making judicial appointments, or should he be tried instead by those whose appointment he initiated in the first place? While neither option could be said to be objectively correct, what was inarguable was the complexity of the situation itself. The Framers, by September of 1787, had succeeded in creating a framework of government comprised of many interlocking parts, each of which alternately supported and restrained the others. Alterations, once again, could absolutely be made, but they could not be attempted thoughtlessly so as to satisfy a singular objective. To alter any one aspect was essentially to alter the functioning of the whole. This should not be taken to mean that the proposed constitution was in any way perfect, for it most certainly was not that. But it did describe, for better or worse, a deeply integrated system of government, and one which it authors doubtless hoped would derive a degree of stability from its structural complexity.

    The final vote on the matter under discussion – so much as it bears mentioning at all – arguably proves out the extent to which the gathered delegates were substantially aware of what they had created. The motion at hand, as brought by Mr. Madison, was to strike out the words “by the Senate” after the word “conviction” in the draft language describing impeachment. If the vote came out in the affirmative, additional language would presumably have been hashed out and added later. As it happened, however, this was not to be the case. Of the eleven states that voted, only two – Pennsylvania and Virginia – cast their ballots in favor. It may have been true, as certain delegates noted, that the relationship which other parts of the draft constitution established between the Senate and the President potentially stood to complicate matters in the event of an impeachment trial of the latter by the former. The President, knowing their fate quite possibly rested in the hands of the Senate, might have become overly deferential to that selfsame body. And the Senate, having become sensible of the extraordinary power which it possessed, might also have become too careless in dismissing chief executives for no greater crime than being obnoxious. But under the circumstances, it seemed, there was simply no reasonable alternative. The drafting process was arguably too far along to start picking apart the various relationships that formed the basic structure of the proposed constitution.

    Granted, it would almost certainly have been possible to rewrite the core framework of the document so as to alleviate the concerns given voice by certain members. The right to advise and consent to the President’s executive and judicial nominees and to draft treaties could have been taken away from the Senate. The Supreme Court could have been reconstituted so as to make it a more suitable body for the trying of impeachments. But how long would such a process have taken in order to arrive at a result as satisfactory as that which the preceding efforts had produced? Weeks? Months? The assembled delegates had already been at work in Philadelphia for over one hundred days as of September 8^th, 1787. They’d spent the entire summer arguing back and forth, back and forth, until they’d finally arrived at something like a durable consensus. Their draft constitution was far from perfect, but it certainly appeared to be workable. It did not satisfy everyone in every aspect, but it was good enough in most aspects. In consequence, while there were certainly still pockets of disagreement among the various delegates, September 8^th effectively marked the end of the discussions that ultimately gave form to the United States Senate. Nine days later, the Constitution as a whole would be sealed. And while, even then, the document in question could not properly be described as complete – the Bill of Rights not being added until December of 1791 – the basic framework would remain as those originally present in Philadelphia described it. Or at least, it would remain so for slightly better than a century.