The Senate (No. 62)

Federalist 62 is brought to us by James Madison and concerns a general explanation of the Senate.

He addresses first the qualifications for election to the Senate, which are pretty straightforward.  Senators are meant to be older than Representatives, he writes, because "the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages."

Madison also quickly discusses the reason state legislatures, rather than voters, elect Senators. He considered the reasoning so obvious as to render it "unnecessary to dilate" on the topic. After the passage of a century, this provision was none too obvious, and the Progressives agitated for a popularly elected Senate.  This they got in 1913 with the passage of the Seventeenth Amendment.  That consensus stood for a long while, but lately some have advocated a return to the legislative election of Senators as a method for re-establishing the states' role in the federal government.  Is this a return to early federalism or just a flash in the pan?
I think repeal is unlikely, but it might be a good idea.

In any event, Madison quickly moves on to the equality of representation in the Senate, which merits more discussion.  He sees the Senate as the place for the states to have a voice in the federal sphere: "[T]he equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty."  This equality was important to the Founding Fathers.  Indeed, it was so important that it is the one part of the Constitution that may not be amended.

In dealing with the number of Senators and the length of their term, Madison really digs in to the purpose of the Senate.  Having two houses, he believes, "doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy."  The last few papers have given the impression that early Americans were very concerned that their government might be bribed.  Perhaps the parlous state of Poland's parliament made them fear that our own would be similarly corrupted; in any case, two houses are harder (or more expensive) to bribe than one.

Next, Madison addresses the more common explanation for the Senate: protecting against sudden whims and swings of public opinion that might otherwise sweep through a fickle government.  This excerpt from the Senate's website recounts the tale of the Senate's purpose:  

An oft-quoted story about the "coolness" of the Senate involves George Washington and Thomas Jefferson, who was in France during the Constitutional Convention. Upon his return, Jefferson visited Washington and asked why the Convention delegates had created a Senate. "Why did you pour that coffee into your saucer?" asked Washington. "To cool it," said Jefferson. "Even so," responded Washington, "we pour legislation into the senatorial saucer to cool it."

Madison next explains that Senators, by virtue of their longer terms of office, will be more familiar with legislation and governance than the House.  While the House changed overnight with the addition of many new members, the Senate's six-year staggered terms mean that there are likely to be more members there familiar with how to make laws than in the other house.  This argument carries less weight now, when professional congressional staff and the parliamentarian carry this institutional knowledge with them from member to member and safe districts keep some House members in office as long as Senators.  Most of all, the persistence of Senators in office frustrates those who wish for change, in whatever form.  Then again, perhaps that frustration is deliberate.

Having a consistent government, Madison believed, rendered us more trustworthy to other nations.  Who would trust a nation that flips its opinion every other year?  In this, the Senate still serves its purpose.  Getting a novel treaty through the Senate is no easy task, as President Wilson found when he sought to abandon America's long-standing isolationism in 1919.  For better of worse, the Senate resists fads.


Even domestically, Madison writes, instability in government harms the people.  Constantly shifting laws lead to cautious capitalists sitting on the sidelines.  "What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed?"  This is more true than ever.  Amity Shlaes made precisely this point in her The Forgotten Man: A New History of the Great Depression, where she argued that by changing the rules and regulations so often the FDR administration undermined business confidence and prolonged the Great Depression.  We see the same problem today, where one part of the government tells banks to increase their capital ratios, and another tells them to lend more money.  What "prudent merchant" would risk any of his capital in such an environment?

Even beyond financial concerns, Madison writes, there is a larger reason for the Senate's stability.  "[T]he most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability." 

The Same Subject Continued (No. 61)

In Federalist 61, Hamilton takes a third pass at the rules allowing the Congress to regulate the election of its own members.  I'm convinced after the first two, but let's see what he has to say.  First, he suggests that most anti-Federalists like that clause just fine, but they wish that it included a clause requiring the electors to vote in their home counties.  This, presumably, would keep the Congress from requiring that elections for Representatives from, say, New Hampshire be held in Georgia or South Carolina.  That is, this provision would keep the Congress from restricting the election so much that only a few electors could vote in it.

Hamilton thinks this is pointless.  As it is, he notes, the states' own constitutions do not include such clauses, and still no New York legislature has told Albany voters that they must cast their ballots by way of Montauk.  If this omission does not threaten the people's liberty in the state constitutions, he asks, why should it be so bad in the federal constitution? 

For the first time, Hamilton also suggests a positive benefit of the clause: that all House elections might be held on the same day.  Under the Articles of Confederation, this was not the case, and states chose their new representatives whenever they saw fit.  But if that's such a good idea, "[i]t may be asked, Why, then, could not a time have been fixed in the Constitution?"  Good question, but he has the very reasonable answer: "it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time."  Here, again, we see an example of the Founding Fathers' knowledge of their own limitations.  Why pick a date when, if it became inconvenient, it would take a constitutional amendment to fix it.  Here, they let Congress, if they want, pick a uniform date, but leave that choice of date up to the men who will come later.  It is a small point, but it is illustrative of the Constitution's genius.


Congress did not fix a date for choosing presidential electors until 1845, and even after then the states often used different days for congressional elections and state elections.  Ultimately, it just made financial and logistical sense to do it all at once and, as Hamilton predicted, it did not lead to ridiculous rules being imposed to retain a certain party in power.

The Same Subject Continued (No. 60)

In Federalist 60, Hamilton continues to explain why the Congress should have the power to regulate Congressional elections. He begins by addressing the fear that, if Congress can regulate its own elections, it will use that power to promote the election of Congressmen friendly to its interests. This he dismisses immediately as improbable and, indeed, impossible without provoking a rebellion by the people and their state governments. On this, he is likely correct. Even in these less valorous times, the states would not countenance biased interference in their elections and would resort to the modern equivalent of rebellion: the lawsuit.

Beyond this general improbability, Hamilton suggests that the people of the different states are themselves so different that they would be unlikely to agree on which group to favor for their rigged elections. This, I think, is less clear-cut. The House members would not have to agree on which members to elect; they would only have to agree not to oppose other members' choices. New Yorkers would determine who to elect in New York, Pennsylvanians would determine who to elect in Pennsylvania, and each would agree to ratify the other's choices. Yes, it's still unlikely, but it's not too different from how the spoils system for executive appointments worked a couple of generations after Hamilton wrote this paper.

For the Senate, he writes, it is even harder for Congress to use its power of regulation to bias the elections because, as the Constitution was originally written, Senators were elected by the state legislatures. Since 1913, the 17th Amendment has made Senators popularly elected, so the concerns about the House could, now, apply to the Senate. Still, it's pretty far-fetched.

He then discusses whether one class may find itself favored over another, specifically the landed class over the mercantile class, the only classes that mattered in 1788. This, too, Hamilton finds unlikely, although his arguments -- including the idea that the landed class wouldn't rig elections because they already predominate, for example -- seem a bit rushed and not well thought out. But I'm a blogger, so who am I to judge what's rushed and ill-considered?

His final argument is more convincing. Even if all of the nightmares of anti-Federalists come true and the vested interests in Congress are so wicked and hell-bent on keeping power that they use their control over the "Times, Places and Manner of holding Elections" to prejudice elections in the several states, wouldn't just rigging the elections outright be easier and more certain? "Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors?" That's the best question of all. Rather than scheduling elections at an inconvenient time, a usurper would be more likely to just steal some votes and win the darn thing by cheating, wouldn't he?

A look around the world at various dictators makes this appear quite true. How many keep power by stuffing ballot boxes or canceling elections altogether? And how many keep power by scheduling elections for Wednesday afternoons? Hamilton has got us here -- this power is so weak that only a fool would use it for ill.

Concerning the Power of Congress to Regulate the Election of Members (No. 59)

In Federalist 59, James Madison passes the Publius pen to his friend (and future enemy) Alexander Hamilton. It's been all Madison since Hamilton's last number, so this makes a well-deserved break for the Virginian. Here Hamilton discusses "that provision of the Constitution which authorizes the national legislature to regulate, in the last resort, the election of its own members."

The Constitution says that the states may set the election rules for the election of members of Congress, but also states that Congress itself may alter those rules at any time. If you're a long-time reader of this blog, you'll know what anti-Federalists thought of this provision: tyranny. Hamilton informs his readers that this is nonsense. "Every government, he writes, "ought to contain in itself the means of its own preservation." This sounds quite conservative, coming as it does from a former rebel against the British government, but when you think about it, it makes sense. Hamilton is not denying the right to rebellion, but rather stating that governments ought to have legal means to prevent their own disassembling, or even refuse to elect anyone, bringing the federal government to a halt.

While anti-Federalists insisted that this would create a means for Congress to make election laws that keep them in power, Federalists think that to leave it up to the states would mean the states could pervert election laws to keep power in their own hands. Better than either of these options, Hamilton writes, the Constitution lodges power with the states, but lets Congress regulate it, to keep things from getting too crazy.

To illustrate the propriety of Congress regulating its own elections, he poses a counter-factual: "Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments?" Indeed, in 1788, all would have condemned such an intrusion.

And so it went for many years after the Constitution's adoption. Congress had the power to regulate elections, but did little actual regulating. States had their own qualifications for electors, and held elections on all different days, not just one as today. It wasn't until the Reconstruction Era that the federal government had to regulate the elections to a greater degree, when Southern states recently re-admitted into the union worked to disenfranchise freedmen.

While it took Constitutional amendments to force states to expand the actual franchise in 1870, 1920, 1964, and 1971, the power to regulate the elections (thus making sure the promise of those amendments was carried out) was there all the time. Congress uses this power pretty often these days, and because states don't like holding separate elections for state and federal offices, it ends up applying the same federal rules to all elections, making Hamilton's incredible counter-factual all too credible. So next time your fancy new computerized voting booth doesn't work, remember that it may be non-functional, but it's definitely Constitutional.

Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered (No. 58)

In the final charge against the Constitution with regards to the House of Representatives, anti-Federalists charge that the House will never increase beyond its initial 65 members. Mr. Madison picks up his pen again in Federalist 58 to refute them.

To be fair to anti-Federalists here, there is no clause in the Constitution (then or now) that requires any particular number of representatives beyond the requirement that each state have at least one. Madison knows this, but he makes the comparison to state constitutions, which also lack such requirements, and finds that they have increased the number of representatives over the years as their populations grew.

Madison knows that this comparison will not be proof enough, so he draws on the theme of Federalist 51 and tells us that it is in the House's interest to increase its size, so it will do so. Or, more accurately, he says that since the House is the body that favors larger states, it is in the interest of large states to increase the House's size, and thus increase their comparative weight in it. In a tiny House with thirteen members, the largest state is no more powerful than the smallest. In an enormous House of a thousand members a large state might outnumber a small one by 70 to 1.

Anti-federalists suggest, perhaps, that the Senate will prevent such an enlargement. However, Madison says, since even medium-sized states would gain members as the house enlarges, there are few Senators who would see it in their state's interest to prevent it. Furthermore, the House controls the purse-strings, and so is the more powerful of the two branches.

I confess, I had never imagined that the House would refuse to increase its numbers from 65. History has, initially at least, proved Madison correct, as the House increased in number every ten years until 1920. As was discussed in Federalist 55, they then stopped the increase, finding that more than 435 members would be too many. In that respect, the anti-Federalists have been proved correct.

This matter of representation ratio did not go away after the Constitution was [SPOILER ALERT!] ratified in June 1788. The First Congress passed, along with what would become the Bill of Rights and the Twenty-Seventh Amendment, an amendment concerning apportionment. What the exact result of that amendment is debatable, but the way I read it, it would have required a modern-day House of 60,000 members. Clearly, even had this Amendment passed, it would have had to have been amended further as our nation grew to beyond its Founders' expectations.

So, we've obviously increased the house from 65 in 1789 to 435 now. But should it be larger? I suggested the application of the Wyoming Rule in an earlier post, which would give us 569 members. Is that too many? I don't know, but I think we've about beat the subject to death.

The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation (No. 57)

Madison addresses a more general complaint in Federalist 57: that the new House of Representatives will be a bunch of elitists who will have no sympathy for the masses. Madison thinks this attack is unwarranted, and is an attack on the whole idea of a republic.

The House members have short terms, he points out, and are elected by the people. If the people elect the House every two years, the House will surely not be a class of elitists that forget those who elected them, right? Surely, he asks, will not the threat of electoral defeat keep the Congressmen loyal to their constituents' interests? Sounds right so far.

Madison further adds: "they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society." Really?

If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it. If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.

Living among a people who has just defended their liberty with the force of arms, it is natural for Madison to believe that our "vigilant and manly spirit" would continue to defend our rights. But Congress would later pass tons of laws from which they were specifically exempted, a practice that prevailed until 1995, with the passage of the Congressional Accountability Act. So, Congress does have to play by the rules it sets for others, but sometimes it takes them fifty or sixty years before they agree to do so.

Madison also points out that the same criticism can be levied against state legislatures, which, according to the Constitution, have the same electors as the federal House. Unless thirteen states were ruled by elitists (and, by the definitions of 1788, they were not) the federal House would not be either. He goes through several examples of systems of election very similar to the House that have not descended into oligarchy.

Is Madison right? I suppose so. The House members of today often seem out of sympathy with the "real people" they represent, but it doesn't seem to be a defect in the Constitution that causes it. Anyone elevated above his fellow man will be tempted to believe that he is better than them. This is not a problem caused by the Constitution, but it is one that might be fixed by it.

The Same Subject Continued (No. 56)

In Federalist 56, Madison continues the discussions of the last number by addressing the complaint that the House of Representatives "will be too small to possess a due knowledge of the interests of its constituents." The objection here, similar to the last number, is that with Congressmen representing so many people they will be unable to represent adequately all of the little groups within their constituency.

Madison agrees that it "is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents," but argues that the differences among the sub-groups of population are not that great, at least as concerns their views of federal regulation. He considers what federal Representatives are expected to legislate: "What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia." Within states, these measures are usually enforced uniformly across an entire state, so why should the federal Congress require a more granulated view?

It's a good point, as far as it goes. The federal government in those days made few laws and applied them across the whole country. These laws had varying levels of popularity around the country, some being downright unpopular with many, but this seems unlikely to have been changed by having had a larger number of Representatives.

Even with the greatly expanded federal power of today, are small groups harmed more by federal law than they would be with a larger House? If anything, I think the opposite is true. A small but vocal minority within a large House district can influence their Representative to vote against a law detrimental to their interests, especially if the majority is less exercised about it than the minority. In a smaller House, they would thereby influence 1 in 453. If the House were twice as large, they would have influenced only 1 in 906. A special interest group thereby gains power in a smaller House, rather than losing it.