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.

The Purpose and Powers of the Senate, Part XVI: Maladministration and Misdemeanors

    Having settled, as of September 8^th, the nature of the Senate’s responsibilities in the realm of foreign policy, the final major issue touching upon the authority of that selfsame body which the assembled delegates took up before adjourning for the day had to do with another instance in which the upper house would act as something more than a legislature. Granting the Senate the ability to weigh in on international treaties and vote upon executive nominations effectively transformed the chamber into a kind of state-appointed advisory council to the office of President. But there was more that certain delegates felt that the upper house of Congress could accomplish – a further purpose which its members might serve – beyond simply acting as a check on executive discretion. Lest a President, in their four years, abuse their power to such an extent that waiting for the next election to be rid of them would place an intolerable burden upon the American people, the chief executive of the United States needed to be removable at any time. The mechanism which the Framers adopted for this purpose, impeachment, was one which had its origins in British parliamentary procedure. As the House of Commons possessed the right to charge an officeholder with a given crime and the House of Lord the right to try them, so would the House of Representatives claim the right to levy charges and the Senate maintain the right to hold a trial. But while this represented but one of many adaptations of British administrative procedure in which the Framers knowingly indulged, the implications of thus empowering the Senate gave rise to certain questions given the increasing scope of its responsibilities. With the upper house of Congress set to take a much more active role in several different areas of public policy than was at that time the case in Britain with the House of Lords, certain of the Framers were naturally given to wonder whether the Senate was really the best place to hold a trial of a public official.

    Specifically, it was the potential trial of a President which had become an object of concern for certain delegates. Granting such a power to the Senate was bound to affect the relationship between one and the other. The exact terms of the relevant indictment needed to be chosen very carefully. Virginia’s George Mason was the first to raise this point, notably in reference to the aforementioned British parliamentary procedure. “Why is the provision restrained to Treason & bribery only?” he asked, quoting specifically from the language of the existing draft constitution.

Treason as defined by the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments.

Pursuant to these observations, Madison further recorded, Mason moved to add the phrase “or maladministration” to the draft immediately after the word “bribery.” For reference, the “Hastings” in question was one Warren Hastings (1732-1818) of the East India Company, a colonial administrator in British India who was famously impeached in 1786 and whose trial was not concluded until 1795. Mason’s declaration that Hastings was not guilty of treason – though he had been charged with embezzlement, extortion, and coercion – was doubtless meant to draw attention to the fact that such a narrowly-defined crime was not necessarily a very useful means of punishing misconduct. Bills of attainder were far more flexible in this regard, being acts of law which declare that a particular person guilty of a crime. But as Mason noted explicitly, they had been forbidden by the proposed constitution, in no small part because of their notorious use in British America in the years preceding the Revolution. His solution, therefore, was to expand the scope of impeachment beyond what the present draft declared, specifically so as to include the rather vague offense of “maladministration.”

    Elbridge Gerry, as seemed his custom, was quick to second Mason’s motion. But James Madison, his fellow Virginian, questioned the wisdom of such broad terminology. Treason was a crime with a very specific significance, though the exact means by which it was defined tended to vary by jurisdiction. And while bribery could and did on take many different forms, it did always come down to the illicit exchange of one thing for another. But what was “maladministration,” exactly? It could mean administration that was provably dishonest, which would potentially indicate that some manner of fraud had been committed. But it could also take on the character of something more like a judgement of value. Someone who was guilty of maladministering their sphere of responsibility might be said to have acted inefficiently according to some pre-defined standard of efficient operation. Or, to be yet more relativistic, they might be said to have simply “done a bad job.” Granting that, in the context of private enterprise, being dishonest, inefficient, or simply bad at one’s job are generally held to be valid grounds for dismissal, elected officials tend to operate within a different structure of assumptions. To be “bad” or “inefficient” as an elected public servant may be reasonable grounds for being voted out of office, but they tend not to figure into discussions of impeachment and removal. The reason for this, as Madison put it, was really very simple. “So vague a term [,]” he said, as maladministration, “Will be equivalent to a tenure during the pleasure of the Senate.” To make “doing a bad job” an impeachable offense, in effect, was to allow the upper house of Congress to remove anyone from any post at any time based on its members subjective evaluation of their individual performance.

    In response to Mr. Madison, Gouverneur Morris was substantially dismissive. In reference to Mason’s proposal to expand the grounds for impeachment to include incompetence, he said that, “It will not be put in force & can do no harm. An election every four years will prevent maladministration.” The fundamental assumption underpinning this claim, of course, was that no President would perform sub-optimally knowing that their job prospects were on the line. And there was something to this within the specific context of the original draft version of the Constitution. Prior to the ratification of the Twenty-Second Amendment in 1951, any given individual – having met the relevant age and citizenship requirements – could serve an unlimited number of terms in the office of President of the United States. Bearing this in mind – and as Mr. Morris pointed out – every President would be forced to continually make a choice as to their future in that role. Do they want to run for another term or will they retire at the end of their present term? Granted, a particularly nefarious and ill-designing President might concoct some means of staying in office indefinitely without ever having to face re-election, but this – in light of the various safeguards put in place- would seem an unlikely thing to succeed. No, the real question would seem to come down to either running or not running. If they choose to run, then it will be as Morris said; they will do their best to avoid accusations of maladministration. And if they conversely choose to retire, then it doesn’t matter how inefficient, dishonest, or incompetent they are; in four years’ time, they will surely be gone. The introduction of a two-term limit – pursuant to the aforementioned amendment – has somewhat complicated the calculus. Namely, it would seem to allow for a second term in which President might take rather drastic measures to stay in power or else behave in a less than forthright manner, knowing, as they do, that their upcoming retirement is mandatory. But such an outcome would seem about as unlikely now as it was in 1787, though certain of the safeguards mentioned above have been shown to be significantly less sturdy than they might have seemed in the past.

    Pursuant to the aforementioned criticisms, Mr. Mason then consented to alter the terms of his proposal. Rather than add the phrase, “or maladministration” after the word, “bribery” in the text describing the mechanism of impeachment, he instead suggested the insertion of the phrase, “or other high crimes and misdemeanors.” And on the motion thus altered, the vote came out decisively in the affirmative. Only three states out of eleven chose to cast their ballot in opposition – being New Jersey, Pennsylvania, and Delaware – while the remaining eight all voted in favor. Given that Mason’s approved terminology was little more specific than that to which Madison and Morris objected, this might seem a strange outcome, but the slight change of verbiage doubtless made all the difference. As discussed above, the word “maladministration” had a rather subjective tinge. It might, true enough, indicate criminal dishonesty, but then it might just as well describe simple incompetence or inefficiency. The phrase “high crimes & misdemeanors” conversely spoke to matters of far graver significance. Granted, these were not precise legal definitions. Unlike treason, which was a crime whose definition was literally spelled out in the draft constitution, a high crime or misdemeanor were not a specific species of offense. But they did, at the least, indicate the essential character of the act in question. A President who found themselves impeached, convicted, and removed from office in consequence of having committed either a high crime or a suitably damaging misdemeanor could not be said to have simply performed their duties poorly or with rank inefficiently. Rather, they will have had to commit come manner of offense which was either a crime in fact – under the laws of the United States – or a crime in spirit as agreed upon by a majority in the Senate. The exact nature of the offending act would still be subject to deliberations in Congress, but the language in question would inevitably narrow its scope. For this reason, to be sure, the assembled delegates voted to approve.

    Notwithstanding this brief show of consensus, however, there were still significant issues to be settled in the realm of Congressional impeachment. James Madison gave voice to one of these when he rose to speak following the aforementioned vote. Though he and his colleagues were largely in agreement as to the terms under which impeachments could be brought, the Virginian nevertheless,

Objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemensor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

This, to be sure, was no minor complaint, but one which Madison had rather hinted he was preparing to make. As discussed above, he took issue with Mason’s attempt to insert the word “maladministration” into the impeachment clause because he felt that, “So vague a term will be equivalent to a tenure during pleasure of the Senate.” This was, to be sure, a critique of the specific terminology which Mason sought to deploy, and one which succeeded in having said terminology retracted. But it could also be taken as an argument against the fitness of the Senate to try impeachments at all. As he noted in his latter pronouncement, “The President under these circumstances was made improperly dependent.” Evidently, regardless of the criteria by which a chief executive might be impeached in the House of Representatives, Madison felt that allowing the Senate to conduct the resulting trial threatened to create an improper relationship between the two branches of government. The Senate, he no doubt feared, might use the threat of impeachment to exact concessions from a President. And a President, at the same time, might seek to weaken the Senate as a means of preserving their term in office. It would be better for all involved, he concluded accordingly, for impeachment trials to be handled by the Supreme Court of the United States, or else a special tribunal of which, “That should form a part.”

    While it might seem like a given for the impeachment trial of a high official like the President to be conducted under the auspices of the nation’s highest judicial authority – i.e., the Supreme Court – Gouverneur Morris was quick to point out that Madison’s proposal to that effect was actually more fraught with complications than the latter seemed inclined to admit. Indeed, as far as Morris was concerned, “No other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted.” This wasn’t to say that Morris favored the idea of a Senate trial wholeheartedly. On the contrary,

He was agst. a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but 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.

As with Madison, Morris was effectively elaborating on a concept that he had put forth previously. In response to Mason’s aforementioned talk of maladministration, the Pennsylvanian observed that granting the Senate the ability to remove a President for incompetence would have no net result one way or the other. Being forced to face re-election every four years regardless, canny executives would act accordingly and poor ones would be removed by the voters. Morris’s subsequent response to Mr. Madison’s proposal effectively took this assumption as its basis. If the impeachment trial of a President absolutely had to be held in the Senate – which Morris felt that it did, owing to the relatively small number of high court justices and the ease with which a majority could be bought – then no one need have worried about the integrity of the Senators in question. Since the voters could be depended upon to punish incompetence themselves, the members of the Senate would only ever rise to the occasion in the event that a crime had been truly committed.

The Purpose and Powers of the Senate, Part XV: War and Peace contd.

    Having left the previous day’s session seemingly in doubt as to the Senate’s reliability, the fact that the debate of September 8^th opened on a somewhat contentious note should perhaps not come as a surprise. Some amount of agreement had ostensibly been reached, to be sure. For one thing, the discussion of the previous day appeared to settle the issue of how the Senate and the President were to cooperate in the establishment of treaties. Madison had failed to convince his colleagues that the upper house ought to possess the right to approve of treaties of peace without reference to the President, but he had least secured their agreement for a simple majority threshold for the approval of such agreements. But then, as the next day’s debate got underway, two delegates almost immediately raised such objections as to throw the whole subject into question once more. Rufus King of Massachusetts, for one, “Moved to strike out the “exception of Treaties of peace” from the general clause requiring two thirds of the Senate for making Treaties [,]” thereby seeking to reverse a decision that had previously been agreed to nem. con. And then, but a moment later, James Wilson of Pennsylvania added his own wrinkle to the proceedings. It was his wish, he said, that, “The requisition of two thirds to be struck out altogether. If the majority cannot be trusted,” he continued, “It was proof, as observed by Mr. Ghorum, that we are not fit for one society.” Between these two motions, one might fairly argue, most of the previous day’s work was set to be undone.

    With Mr. King’s motion as the basis of the ensuing discussion, the first of the delegates to speak was Pennsylvania’s Gouverneur Morris. Contrary to his colleague representing the state of Massachusetts, Morris believed that the clause in question was bound to serve at least two useful purposes. On the one hand, since it would allow a simple majority of Senators to approve of a treaty of peace, such a provision would accordingly prevent a consensus of as much as fifty-nine percent from being forced to admit their powerlessness when attempting to move a given agreement. In any other context, a fifty-nine percent majority would be capable of securing any motion or proposal it cared to, but that same majority – if the clause in question was struck out – would be confronted with defeat and embarrassment upon attempting to end a war by way of diplomacy. This, Morris held, would be a truly disagreeable outcome, from a moral perspective if from no other. But there was also, as it happened, a more pragmatic view as well. If a majority in the Senate – but one which did not reach a two-thirds threshold – desired to approve of a treaty of peace and failed, that same group might in turn attempt to use its numbers to achieve the outcome it desired in the realm of regular legislation. If, for example, a frustrated Senate majority, unable to move a treaty of peace, instead voted in favor of cutting off funding for the nation’s armed forces, the results might probably have been disastrous. Granted, it would be hard to imagine a group of Senators willingly endangering American servicemembers for the purpose of drawing a given armed conflict whose ending they sought to a definitive conclusion, but Morris was nevertheless correct in pointing out that the possibility definitely existed. If a Senate majority was prevented from acting in this one policy area in exception to all others, displeasure and resentment – and whatever outcome such feelings produced – were very likely to be the result.

    Unsurprisingly, given his cited antipathy for the whole concept of a two-thirds threshold, Morris’s fellow Pennsylvanian James Wilson also expressed his disagreement with striking out the clause in question. But while Morris approached the subject from the perspective of a potentially frustrated Senate majority, Wilson sought to point of the likely emergence of a powerful and unrepresentative Senate minority. “If two thirds are necessary to make peace,” he thus observed, “The minority may perpetuate war, against the sense of the majority.” What he meant by this, of course, was that if the sealing of a treaty of peace by the Senate required a majority vote of at least two-thirds of those seated, little more than one-third might be said to hold the balance of power. Indeed, it might be far fewer, depending on the opinions held by the various Senators. In a Senate in which all thirteen states hold two seats each, giving a total of twenty-six Senators altogether, a two-thirds majority would come out to seventeen. If ten Senators of these twenty-six were dead-set in favor of a treaty of peace, nine were dead-set against it, four were leaning in favor, and the remaining three were entirely unconvinced, which group holds the advantage? The ten wholly in favor of the treaty and the four leaning in that direction account for a simple majority between them, but they cannot secure the peace they desire without convincing all three of the undecideds. Does this kind of scenario not place an undue amount of power – the ability, as Mr. Gerry pointed out on the 7^th, to give away fishing rights or cede territory – in the hands of only three people?

    In point of fact, given that every state was to enjoy equal representation in the Senate, these three people might represent an even smaller fraction of the population than their relative numbers might imply. If every Senator represented the same number of people, three of them might claim to speak for one-ninth of the American people. But as the Senate, by design, was intended to grant equal weight to all states regardless of population, these three might instead represent the smallest among them – these being, as of 1780, Rhode Island, Delaware, and Georgia. Taken together, these three states, with a combined population of approximately one hundred and fifty thousand, would account for only one-seventeenth of the nation’s total population of two million six hundred thousand. Assuming that one Senator from each of these states constitute the three wavering votes, should the small fraction of the American people that these men represent be permitted to makes decisions on behalf of the rest? Decisions involving territorial secession, war reparations, or the continued suffering of American soldiers? James Wilson was of the opinion that this should absolutely not have been the case. The minority, he said, must not be allowed to perpetuate war against the sense of the majority. As true as this was within the specific context of the Senate, it was surely truer still in terms of the broader population.

    Interestingly enough, North Carolina’s Hugh Williamson made what was essentially the opposite case to that his colleague Wilson by way of much the same logic. Responding specifically to Wilson’s initial premise and Morris’s seconding thereof, he argued that even under normal circumstances in the Senate, “There may be a majority of the States without a majority of the people. Eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace.” In terms of raw numbers, this accounting was substantially accurate. With twenty-six Senators in total, a quorum – that is, the smallest number necessary to transact business – would come out to fourteen, a simple majority of which would indeed be only eight. But while allowing this majority of eight Senators to approve a potentially wide-ranging treaty of peace might seem a preferable alternative to allowing as few as three Senators to hold the balance of power under the terms of a two-thirds threshold, the same rationale which made the latter outcome appear unpalatable spoke little better for the former. Empowering eight Senators in this way might appear to be preferable to empowering three, but even an eight-man majority might represent less than half of the American population. Such was the nature of the Senate, after all, that just more than half of just more than half of its total membership might conceivably represent a far smaller fraction that these ratios would otherwise indicate. Consider, by way of example, some of the same population figures which were deployed above. The eight smallest states as of 1780 were New Hampshire, Rhode Island, Delaware, Georgia, New Jersey, South Carolina, Connecticut and New York, the combined population of which was approximately nine hundred and seventy thousand. With a total contemporary US population of two million six hundred thousand, a simple Senate majority comprised of one Senator from each of these eight specific states could claim to represent only about one-third of the American people.

    There was no reason to believe that the numbers would always work out in this one specific way, of course. If the matter under discussion was a treaty of peace, it would seem likely that a greater number of Senators than just a bare quorum would make a point of appearing. And while the appearance of a bare quorum would require a majority of only eight Senators to approve of such a treaty, the resulting consensus might instead include those members who represented the eight largest states rather than the eight smallest. Indeed, it would seem quite unlikely, on the face of it, that this particular grouping of Northern states and Southern states, those who depended on slavery and agriculture and those who were primarily commercial or mercantile, would find common cause. Nevertheless, the possibility did exist. Just as a simple Senate majority might seek to exorcize its frustration at failing to surmount a two-thirds threshold by seeking to withhold military resources during a conflict which it wished to end, a majority of the eight smallest states – representing, as aforementioned, only one-third of the population – might approve of a treaty of peace whose terms could have severe consequences for the whole of the American people. Williamson’s intention, bearing this simple fact in mind, seemed to be increase the likelihood that the constituents represented by a Senate majority voting in favor of a peace treaty would actually constitute a majority of the American people as whole.

    A two-thirds Senate threshold, while it might indeed have ended up playing into the hands of only a fraction of the seated members, was also far more likely to include the representatives of at least half of the total population. Granted, when one once again examines the figures cited previously, the shortest route to seventeen votes – two from each of the eight smallest states and one from the next-smallest, North Carolina – would amount to one million two hundred and fifty thousand or just under half (forty-eight percent) of the total. But if the same vote was being held with only a bare quorum, a two-thirds threshold – to the tune of nine votes, one each from the nine smallest states – would potentially amount to the same overall percentage. And bearing in mind that this selfsame arrangement of states is more than a little artificial, the likelihood of the remaining larger states being included would seem to increase the probability that a two-thirds threshold would yield an actual majority in terms of the represented population. There were no guarantees, of course; no way of ensuring that every vote on a treaty of peace was approved by the representatives of a majority of the American people. But this, within the context of the draft constitution as a whole, was rather par for the course. Examining just about any clause or provision in detail was likely to reveal potential edge cases or worst-case scenarios. Such was the nature of most any codified governing charter intended to rationalize the administration of that most irrational beast, mankind. Williamson’s intention, therefore, was simply to make the emergence of a truly representative Senate majority as likely as possible whenever the Senate was called upon to approve a treaty of peace. As a two-thirds threshold seemed a fairly reasonable way to accomplish this, he naturally supported it and spoke against efforts to the contrary.

    Elbridge Gerry, it turned out, was thinking along the same lines as Hugh Williamson. When it came his turn to speak, he also made a point of drawing his colleagues’ attention to, “The danger in putting the essential rights of the Union in the hands of so small a number as a majority of the Senate, representing, perhaps, not one fifth of the people.” His math, as the cited figures make clear, was ever-so-slightly off. Even the smallest simple majority possible – being one Senator each from the eight smallest states – could claim to represent slightly over one-third of the total population. But Mr. Gerry can certainly be forgiven for not having had access to accurate demographic data. And his miscalculation, for that matter, did not lessen the cogency of his argument. A simple majority in the Senate, as Mr. Williamson had pointed out, might conceivably represent less than a majority of the American people. That such a small portion of the electorate – by choosing state legislators who, in turn, appointed Senators – should have been able to decide on behalf of the majority of their fellow citizens how such important matters as were regularly contained in a treaty of peace were ultimately settled truly was a most disagreeable notion. Erecting a two-thirds threshold might not have closed off this eventuality completely, but it would at least have made it substantially less likely from one treaty vote to the next.

    At this point, the conversation at hand having thus far been concerned exclusively with ideal composition of a majority in the Senate for the purpose of approving a treaty, the parameters of the debate rather started to break down. Delegates who had previously held their tongues began openly questioning the basic premise of the discussion itself, others attempted to ram through their preferred proposals in spite of them having been previously denied, and the whole affair came to an abrupt halt with a final vote that more or less restored things to where they had been at the beginning of the day’s business. It made for a rather tumultuous exchange, to be sure, but one which nevertheless seemed to spur the formation of a final, durable consensus. Roger Sherman of Connecticut set things off in a rather dramatic fashion by making it know that, contrary to what his fellow delegates had been discussing for the better part of two days, he, for one, “Was agst. leaving the rights established by the Treaty of peace, to the Senate, & moved to annex a proviso that no such rights shd. be ceded without the sanction of the Legislature.” Such an admission placed Sherman well outside the conceptual boundaries of the discussion at hand. The assembled delegates had previously agreed that the Senate was best suited to evaluate and vote upon treaties negotiated by the executive in no small part because the House of Representatives was thought to be too large, too unwieldly, and too partial to the interests of the most populous states. And yet, in spite of the several votes that had been held which affirmed this consensus, here was Sherman attempting to tear it all down. And what’s more, he sought to do so without even providing an explanation. He did not say why he preferred not to leave the establishment of treaty rights to the Senate, or why he believed – against ample evidence to the contrary – that this responsibility was best allocated to the House. On the contrary, he simply asserted that he was against the former and for the latter, as if that was all his fellow delegates would need to hear.

    Amazingly enough, this did seem to be all that Gouverneur Morris needed to hear in order to change his tune entirely from supporting a simple majority vote in the Senate to casting the Senate aside altogether. As recorded by Mr. Madison, Morris, “Seconded the ideas of Mr. Sherman.” But then Madison himself, who had been among the most strenuous in favor of allowing the Senate to vote upon treaties recommended by the executive – to the point of even suggesting that the Senate might vote upon treaties of peace entirely on its own initiative – made an apparent attempt to keep the conversation on track. He did this by observing, in reference to Mr. Sherman’s preference for allowing the House to weigh in on the establishment of treaty rights, “That it had been too easy in the present Congress to make Treaties altho’ nine States were required for the purpose.” The intention of this remark was presumably to draw attention to how easily the Continental Congress had approved of the treaties that had been placed before it over the course of the preceding decade in spite of the fact that nine of thirteen states were required to voice their agreement in order to do so. Granting that the idea of nine of thirteen states agreeing on anything during the 1780s is a fairly remarkable one, it nevertheless remains unclear precisely what else it was Madison was trying to communicate. Congress had ratified several international treaties during the period in question, notably those establishing relations with Sweden, Prussia, and Morocco. And at the same time, American diplomats had been involved in discussions with the governments of several other states in North Africa for the purpose of securing the release of hostages taken prisoner by local pirates and establishing the regular payment of tribute to stave off further attacks. But what had any of this to do with the fitness – or not – of Congress to ratify treaties? Did Madison find the terms of any of these particular agreements unpalatable? Was he embarrassed that his country had so quickly given in to the threat of piracy? Did he believe that the Senate, placed in the same role as the Continental Congress, would exercise a more suitable combination of fortitude and forbearance? Again, it is not clear, and the fact that Congress, under the auspices of the Articles of Confederation, voted by state rather than by representative makes it even less so. Why should he have argued against the example of the “present Congress” at all when the body most alike to it under the terms of the proposed constitution was to be his favored Senate?

    Regardless of whatever Madison was actually trying to say, the evident effect of it was to close off the avenue of discussion that Roger Sherman had attempted to open. Though Gouverneur Morris had explicitly seconded his call for the House to become part of the treaty process, the vote which immediately followed did not take Sherman’s motion as its question. Rather, it returned to the proposal that Rufus King had put forward when the day’s business first began – i.e. that of excepting treaties of peace from the two-thirds majority requirement in the Senate. According to the resulting tally, King has read the room well. In spite of the fact that the previous day had ended with a majority in favor of allowing treaties of peace to be ratified in the Senate by a simple majority – per Mr. Madison – the majority now favored the opposite tack entirely. By a count of eight states to three – with only New Jersey, Delaware, and Maryland voting against – peace treaties were no longer to be except from the two-thirds threshold. But rather than move on to another topic in the face of this evident show of unity, several delegates instead persisted in attempting to secure a majority vote for their own, often directly contradictory proposals. Messrs. Wilson and Dayton, for example, immediately moved that the two-thirds threshold – which the majority of their colleagues had just voted to uphold – be struck down entirely, resulting in another vote by which the assembled delegates – to the tune of nine against, one in favor, and one abstention – showed their attachment to the status quo. This same exchange arguably repeated itself a moment later when Messrs. Rutledge and Gerry introduced yet another proposal which their colleagues then proceeded to vote down by a wide margin. In this case, the purpose of the motion was to ensure that, “No Treaty be made without the consent of 2/3 of all the members of the Senate-according to the example of the present Congs.” But when it came to a vote, the same numbers appeared as before: eight opposed, three in favor.

    The intent of this last motion, it bears noting, was specifically to define a majority in the Senate for the purpose of ratifying international treaties. As Mr. Williamson had pointed out at some point earlier in the day’s discussion, a simple majority, under tradition quorum rules, would amount to only eight Senators in total. A two-thirds threshold would raise this number to nine, but this was still a very small number in light of the potential scope of a treaty of peace. Rutledge and Gerry’s proposal would have abandoned the traditional quorum rule – whereby a legislative body may transact business as normal as long as at least fifty-one percent of its members are present – and instead required a majority of, “2/3 of all the members of the Senate” for a vote of approval. This would have raised the threshold on all successful treaty votes from a minimum of nine votes to a minimum of seventeen, thereby increasingly the likelihood of a truly representative majority. This, recall, is exactly what Mr. Williamson had argued in favor of, and what Mr. Gerry had seconded, scant moment before. Rutledge and Gerry’s proposal would accordingly have further solidified a rule which their colleagues had only just agreed to adopt – or re-adopt, as the case may be. But while the fact that it was voted down might seem to indicate that the majority was as swiftly turning against the two-thirds rule as they had only recently voted in its favor, the truth was likely somewhat more mundane. Though there seemed to be – for the most part – substantial agreement among the assembled delegates that a two-thirds threshold on Senate treaty votes was indeed preferable to one which would have given the same power to only a simple majority, it was also undeniable – at least for the foreseeable future – that distance and context was bound to affect how many Senators might be in a position to report for a given vote.

    This was, after all, the late 18^th century. Not only was road infrastructure spotty at best – especially in rural areas – but travel was virtually impossible between certain regions of the country during certain times of the year. Bear this in mind, it would not be all that difficult to imagine a scenario in which fewer than seventeen Senators were able to appear for a treaty vote but among whom a majority still existed in favor of approval. Suppose that, after a long and arduous process of negotiation, a treaty is finally sealed between the United States and some foreign belligerent. A draft of the treaty is delivered at the first possible opportunity for the appraisal and approval of Congress, but it also happens to be the beginning of the winter season. Congress is out of session, all the various Senators have gone home, and a special session will need to be called in order for the vote to be held. No one wants the conflict in question to drag on any longer than it has, so a session is indeed called and summons are dispatched. But as a result of a sudden snow squall, blocked mountain passes, or generally beastly winter conditions, only ten or twelve Senators are able to make the journey in a reasonable amount of time. Under traditional quorum rules, these twelve are enough to transact business. And, as it happens, ten of these twelve have also made it clear their intention to approve the treaty that has been submitted to their scrutiny. Under the terms of the Constitution, however – thanks to Messrs. Rutledge and Gerry – only, “2/3 of all the members of the Senate” counts as a majority for the purposes of approving a treaty. Ten votes are not enough. The Senators could wait, of course, to see if any more of their colleagues arrive. But while military campaigns in the 18^th century tended to be put on “pause” during the winter, there was no guarantee that the resulting delay might not cost more American soldiers their lives. And even if no fighting occurred in the meantime, the soldiers that had already been dispatched would still need to be paid. One way or another, delay would come at an expense.  

    Without knowing for certain that this kind of hypothetical was on the minds of the assembled delegates when they voted to reject the proposal of Rutledge and Gerry, it would not have been in the least bit out of character if it had. More than once, the men who answered the summons to Philadelphia in the spring of 1787 had made plain their awareness of the need to balance principle with pragmatism. And so, while most of them might have agreed with Mr. Williamson’s assessment that the Senate’s tendency to distort the actual weight of a majority ought to be taken into account when allocating the power to approve treaties of peace, they were also doubtless conscious of the practical implications of erecting an absolute two-thirds threshold without any allowance for circumstance. To be sure, the set of conditions necessary to create the kind of situation described above were unlikely to ever coincide. Then again, so were the circumstances which might produce only a nine-member two-thirds majority under the traditional quorum rule in the Senate. In consequence, it no doubt appeared to the majority of these delegates then present that the best thing to do was simply maintain the two-thirds threshold while refraining from carving out an exception to the quorum rule. There may have remained, under the circumstances, the possibility of an unrepresentative majority, but such was almost certainly bound to be the case at some point in the history of Congress under the Constitution. Rather than choose to address every minute chance of something potentially going wrong – and creating, in the process, a framework of government so rigid as to very soon become constrictive – the Framers instead opted for a course of flexibility, simplicity, and durability.

    The next several sets of motions and votes that followed seemed very much to prove out the strength of this collective conviction. After the defeat of Rutledge and Gerry’s proposal, Roger Sherman then asserted that, “No Treaty be made without a Majority of the whole number of the Senate.” And while Mr. Williamson attempted to shoot this motion down by observing – rather pointedly – that, “This would be less security than 2/3 as now required,” the question was nevertheless put to a vote after a seconding by the aforementioned Mr. Gerry. After the resulting tally came out once again in the negative – albeit by a close margin of six against and five in favor – James Madison opted to keep the ball rolling by offering his own amendment along much the same lines. Specifically, he moved that, “A Quorum of the Senate consist of 2/3 of all the members.” Without calling into question the sincerity of the man’s underlying motives, this proposal on the part of Madison was plainly and inarguably flawed. His purpose, no doubt, was to ensure that no Senate meeting was ever gaveled into session without it being possible for the attending members to approve a treaty. If two-thirds of the total members were required to be present before any business could ever be transacted, there would accordingly never come a time when it was mathematically impossible for a two-thirds majority to coalesce. The only trouble with this plan, of course, was that it would prevent the Senate from acting in any official capacity unless two-thirds of its members were present. Granting that this might not seem such a high bar to clear here at the beginning of the 21^st century, it most certainly would have been at the end of the 18^th.

    As discussed above, long distance travel at the time that the various delegates were meeting in Philadelphia could be an exceptionally arduous undertaking, due in equal parts to the effects of inclement weather, the slow average speed of most modes of transportation, and the relatively primitive state of contemporary public infrastructure. Bearing all of this in mind, it would have been quite unlikely that a national legislative body like the Senate – which drew people from across the nation to one single location at varying distances from their homes – would have been gaveled into session with its full membership present more than once in every handful of years. Rather than hazard the journey on anything like a frequent basis – at risk of life and limb, potentially, or at least to the detriment of their private interests and estates – Senators whose homes states were particularly distant from the nation’s capital would doubtless have appeared only as often as they felt was absolutely necessary and left their colleagues nearer at hand to carry out the chamber’s day-to-day business. In consequence, while a simple majority of Senators might manage to attend to their official responsibilities with some regularity, a two-thirds majority was bound to be a rarer occurrence. This basic fact was why the quorum rule was erected in the first place. Truly representative government is a noble ambition, and one worthy of every reasonable effort to see it through. But before the era of rapid, cheap, and widely available transportation – before what came to be known as the “annihilation of time and space” by the introduction of steam-powered travel in the 19^th century – it was functionally unavoidable that any given representative assembly was going to operate at less than full membership for most of its life. Establishing a means by which said assembly could operate at partial strength without disregarding the essential principle of majority rule was accordingly essential.

    Madison’s proposal flew in the face of this basic admission to lived reality. If the Senate could only operate if two-thirds of its members were present, how often would it ever be gaveled into session? Perhaps, under such conditions, it might meet once in a given year, vote upon every piece of legislation that had been placed on its docket, and then split apart again for another twelve month period. Meeting so infrequently, one wonders how closely the assembled Senators would be inclined – or able – to scrutinize the items placed before them. Would they pour over every line of the bills and treaties submitted for their approval, or would they fairly quickly develop an expedited procedure intended to get their various members back to their homes as soon as possible? And what if, under these specific circumstances, a special session was summoned six months after the previous regular session for the purpose of ratifying a treaty of peace? How many Senators would make the journey right in the middle of their extended recess? A majority? Entirely possible. A two-thirds majority? Substantially unlikely. But while the traditional quorum rule would allow just a bare majority to proceed to a vote, Madison’s two-thirds quorum would require a much rarer assemblage. In consequence, while Madison’s intention, once again, was both plain and theoretically sound, his attempt to counter the potentially unrepresentative nature of a simple Senate majority would have almost certainly, if approved, made the Senate far less effective as a whole.

    The events which immediately followed the introduction of Madison’s aforementioned motion would seem to demonstrate the extent to which his colleagues were aware of its less desirable implications. Gouverneur Morris, for one thing, shot back that the Virginian’s plan, “Will put it in the power of one man to break up a Quorum.” Granting that Madison then very astutely pointed out that, “This may happen to any Quorum [,]” the mood of those assembled seemed nevertheless to be arrayed against him. The subsequent vote proved this out, though by a surprisingly slim margin. Of the eleven state delegations that cast a ballot, six voted against the motion – New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, and Delaware – and five voted in favor – Maryland, Virginia, North Carolina, South Carolina, and Georgia. While this came to the same total as the previous vote on Roger Sherman’s cited motion, the composition of these two specific groups would seem to be a significant one. The majority, who voted against Madison’s proposal, was comprised entirely of northern states. The minority, who voted against it, was comprised entirely of states in the south. The northerners in the room, whose states increasingly favored commerce over agriculture, doubtless anticipated the passage of more trade treaties with foreign nations. In consequence, perhaps they viewed any amendment that would hamper the Senate’s ability to approve such agreements as antithetical to the whole concept of a strong central government capable of advocating on behalf of its citizens’ economic interests. Meanwhile, the southerners then present, whose states favored agriculture over commerce and saw territorial expansion as a necessary facilitator of the former, quite likely viewed foreign trade agreements as a source of concerted anxiety. Outnumbered in the Senate – if only by a handful of votes – they may have accordingly favored such measure as would keep that same body from easily approving bi-lateral treaties. In this way, they might have hope to prevent their northern counterparts from giving away land on the western frontier along the disputed Mississippi River, or more generally from granting trade concession which favored northern commerce at the expense of southern farming.

    Whatever the logic that underpinned this final tally, it can at least be stated for a fact that it marked the end of the discussion of the Senate’s power to make treaties. After many exchanges and many votes spread out over the course of two days of debate, the assembled delegates had finally settled upon a mechanism by which the upper house of Congress was to provide input into foreign agreements. Some of the Framers were more inclined to hold firm to certain philosophical principles, specifically as they declined to grant the executive too much autonomy or power or sought to ensure that a majority in the Senate represented a majority of the American people. Others, meanwhile, made a point of drawing attention to certain practical considerations, from the unique suitability of the executive to attend to foreign affairs to the need to balance majoritarian principles with material circumstances. In the end, the final outcome represented a balance of each of these approaches. Indeed, this sense of compromise is surely what led the assembled delegates to grant treaty-making power to the Senate in the first place. Such agreements could not be put to referenda. Such a mechanism was far too unwieldly to be practical. And the House of Representatives, while true to its name, was both too large to be very efficient and was bound to be dominated by the largest states seated therein. The executive, it was true, might have handled matters themselves, but this would place a tremendous amount of additional power in the hands an already powerful officer of state. The Senate accordingly represented both the pragmatic choice and the most philosophically sound. It was less unwieldly than the House and more deliberate than the executive; simple thresholds could be put in place to make the emergence of a true majority more likely; and it could even punish a delinquent executive by other means if they were determined to abuse their diplomatic responsibilities. No one, to be sure, was prepared to argue that thus empowering the Senate represented the perfect solution to the issue at hand. But, then again, it didn’t need to be. So long as it met enough of the Framers’ philosophical and practical requirements – and so long as its most obvious flaws were relatively unlikely to make themselves known – then it would remain unchallenged in its role as co-administrator of foreign relations.