HAVING EXAMINED the constitution of the House of Representatives – and answered the principal objections against it – I next examine the Senate. There are five areas of inquiry:
(1) The qualification of senators;
(2) The appointment of them by the State legislatures;
(3) The equality of representation in the Senate;
(4) The number of senators, and the term for which they are to be elected; and
(5) The powers vested in the Senate.
The first four are discussed herein, while the powers of the Senate are discussed in Federalist 63 through Federalist 66.
Qualifications for the Senate
The qualifications for senators consist in a more advanced age – and a longer period of citizenship – than those eligible to be representatives.
While a representative must be 25 years old and a citizen for at least 7 years, a senator must be 30 years of age at least and a citizen for at least 9 years.
The propriety of these distinctions is explained by the nature of the senatorial trust, which requires a greater extent of information and stability of character. By the age of 30, a senator ought to have reached a period of life most likely to supply these advantages.
Since a senator is likely to participate immediately in transactions with foreign nations, the nine-year citizenship threshold helps ensure senatorial power is exercised by one who is thoroughly weaned from the prepossessions and habits incident to foreign birth and education.
The nine-year requirement is a prudent mediocrity between a total exclusion of adopted citizens – whose merits and talents may claim a share in the public confidence – and a hasty and indiscriminate admission of a new citizen of foreign birth, which might create a channel for foreign influence on the national councils.
The method of having State legislatures appoint senators will refine the selection process more than would direct election by individual citizens. To this advantage must be added the agency of the States in forming the Federal government – which itself will secure the independent authorities of the States – and by linking the two systems.
Senators Will Be Chosen by State Legislatures
Among the various modes which might have been devised for constituting the Senate, the one selected is probably the most congenial with public opinion: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” Art. I, § 3, cl. 1.
The method of having State legislatures appoint senators will refine the selection process more than would direct election by individual citizens.
To this advantage must be added the agency of the States in forming the Federal government – which itself will secure the independent authorities of the States – and by linking the two systems.
Each State Is to Be Equally Represented in the Senate
Among a People thoroughly incorporated into one nation, every district ought to have a proportional share in the government.
Among independent and sovereign states bound together by a simple league, the parties – however unequal in size – ought to have an equal share in the common councils.
In a compound republic like the United States – which partakes both of the national and federal character – the Federal government ought to be founded on a mixture of the principles of proportional and equal representation.
But it is superfluous to examine the Senate on a theoretical standard, since all agreed its structure was not the result of theory – but of a spirit of amity – and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.
A common government – with powers equal to its objects – is called for by the voice, and still more loudly by the political situation of America.
The equality of representation in the Senate evidently resulted from compromise between the opposite pretensions of the large and the small States.
A government founded on principles more consonant to the wishes of the larger States would not likely have been obtained from the smaller States.
The only alternatives for the larger States were to agree to equality of representation in the Senate or to a government still more objectionable.
Of these, the advice of prudence was to embrace equality of representation among the States, whether large or small.
Instead of indulging a fruitless anticipation of the possible mischiefs which may ensue from equality of representation, it is better to contemplate the advantages which flow from the sacrifice by the larger States.
No law or resolution can now be passed without the concurrence, first, of a majority of the People (through House approval), and then of a majority of the States (through Senate approval). This complicated check on legislation may in some instances be injurious as well as beneficial. If exercised rationally, it is a defense the smaller States may utilize if any interests common to them – and distinct from those of the other States – would otherwise be exposed to a peculiar danger.
Equality of Senatorial Power Acknowledges and Preserves Residuary State Sovereign Powers
The 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 residual sovereignty.
This equality ought to be no less acceptable to the large than to the small States, since they are not less solicitous to guard against – by every possible expedient – an improper consolidation of the States into one simple republic.
A Majority of the Senate also Is a Majority of the States, which May Block Improper Legislation
Another advantage accruing from the ingredient of State representation in the Senate is the additional impediment it must prove against improper acts of legislation.
No law or resolution can now be passed without the concurrence, first, of a majority of the People (through House approval), and then of a majority of the States (through Senate approval).
This complicated check on legislation may in some instances be injurious as well as beneficial.
If exercised rationally, it is a defense the smaller States may utilize if any interests common to them – and distinct from those of the other States – would otherwise be exposed to a peculiar danger.
But the larger States will always be able – by their power over supplies – to defeat unreasonable exertions of this prerogative by the lesser States.
And as the faculty and excess of lawmaking seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
In order to form an accurate judgment on both of these points, it is proper to inquire into the purposes which are to be answered by a Senate.
In order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.
It is a misfortune incident to republican government – though in a less degree than to other governments – that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust.
A Senate – as a second and distinct branch of the legislative assembly – must be in all cases a salutary check on the government.
It doubles the security to the People by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.
This precaution is founded on such clear principles – so well understood in the United States – that it would be superfluous to enlarge on it.
The improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies.
Thus, it is politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.
It is a misfortune incident to republican government – though in a less degree than to other governments – that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. A senate – as a second and distinct branch of the legislative assembly – must be in all cases a salutary check on the government.
A Single and Numerous Assembly Is Susceptible to Sudden and Violent Passions, which a Senate Can Hinder
The necessity of a senate is also indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions, as explained in Federalist 58.
Examples on this subject might be cited without number from proceedings within the United States as well as from the history of other nations.
Representatives Will Be Less Acquainted than Senators with the Objects and Principles of Legislation
Another defect to be supplied by a senate lies in a typical representative’s want of a due acquaintance with the objects and principles of legislation.
For the most part, representatives are called from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to study of the laws, affairs, and comprehensive interests of their country.
It is impossible that such an assembly of individuals – if left wholly to themselves – should escape a variety of important errors in the exercise of their legislative trust.
No small share of the present embarrassments of America is to be charged on the blunders of our governments, though most have proceeded from the heads rather than the hearts of their authors.
What indeed are all the repealing, explaining, and amending of laws – which fill and disgrace our voluminous codes – but so many monuments of deficient wisdom, so many impeachments by a succeeding session against a preceding session, and ultimately so many admonitions to the People of the value of a well-constituted senate?
In order to correct the infirmities of the representative assembly, a senate ought itself to (1) be free from it, (2) be less numerous, (3) possess great firmness, and (4) hold its authority by a tenure of considerable duration.
Senators Will Have Greater Knowledge of the Best Means to Promote the Happiness of the People
A good government requires two things: first, fidelity to the object of government, which is the happiness of the People; and second, a knowledge of the means by which that object can be best attained.
Some governments are deficient in both these qualities.
Most governments are deficient in fidelity to the happiness of the People.
In our State governments, however, too little attention has been paid to the knowledge of the means of attaining that happiness.
The Federal Constitution avoids this error. By creating the Senate, the Constitution adds to knowledge of the means by which the happiness of the People can be best attained, in a mode which increases the security for that object.
As Mutability of Government Increases, the Respect and Confidence of Other Nations Decreases
The mutability in public councils arising from a rapid succession of new members – however qualified they may be – points out the necessity of some stable institution in the government.
In the States, every new election appears to change half the representatives.
From this change of individuals must proceed a change of opinions, and from a change of opinions, a change of measures.
Yet a continual change of measures – even good measures – is inconsistent with every rule of prudence and every prospect of success.
Experience verifies this in private life. Constancy is more just – and more important – in national transactions.
A good government requires two things: first, fidelity to the object of government, which is the happiness of the People; and second, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities. Most governments are deficient in fidelity to the happiness of the People. In our State governments, however, too little attention has been paid to the knowledge of the means of attaining that happiness.
To trace the mischievous effects of a mutable government would fill a volume.
I refer to a few only, each of which will remind us of innumerable others.
In the first place, mutability forfeits the respect and confidence of other nations, and all the advantages connected with national character.
An individual who is observed to be inconstant to his plans – or perhaps to carry on his affairs without any plan at all – is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly.
His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his.
One nation is to another what one individual is to another, with this melancholy distinction perhaps, that a nation (having fewer of the benevolent emotions of an individual) is under fewer restraints from also taking undue advantage from the indiscretions of another nation.
Consequently, a nation whose affairs betray a want of wisdom and stability may calculate its losses resulting from the more systematic policy of its wiser neighbors.
The best instruction on this subject is unhappily conveyed to America by the example of her own situation.
She finds she is held in no respect by her friends; she is derided by her enemies; and she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.
An individual who is observed to be inconstant to his plans – or perhaps to carry on his affairs without any plan at all – is marked at once by all prudent people as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his.
The internal effects of a mutable policy are still more calamitous, for it poisons the blessing of liberty itself.
It will be of little solace to the People that the laws are made by individuals of their own choice, if the laws be so voluminous they cannot be read, or so incoherent they cannot be understood; or if the laws are repealed or revised before they are promulgated, or undergo such incessant changes that no person knowing what the law is today can guess what it will be tomorrow.
Law is defined to be a rule of action.
But how can law be a rule, when it little known, and less fixed?
Public Instability Favors the Sagacious, the Enterprising, and the Monied
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the monied few over the industrious and uniformed mass of the People.
Every new regulation concerning commerce or revenue – or in any way affecting the value of the different species of property – presents a new harvest to those who watch the change, and can trace its consequences – a harvest not reared by themselves, but by the toils and cares of the great body of their fellow-citizens.
This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
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? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
In another point of view, great injury results from an unstable government.
The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements.
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?
What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?
In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
But the 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.
Madison or Hamilton