THE senate, on account of its more permanent duration and various functions, will receive our first attention. If the infusion of any
aristocratic quality can be found in our Constitution, it must be in the senate; but it is so justly tempered and regulated by other divisions of power, that it excites no uneasiness. The mounds and safeguards with which it is surrounded must be violently broken down, before any political injury can arise from the senate.
The senators are appointed from time to time, by the legislatures of the different states; but if a vacancy happens during the recess of the state legislature, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.
The vesting this power in the state legislatures is the only material remnant of the federative character of the late congress; but the delegates then appointed possessed the whole power; those now appointed, hold but a part of the powers of the general government. It is recommended by the double advantage of favouring a select appointment, and of giving to the state governments, such an agency in the formation of the general government as preserves the authority of the former, and contributes to render them living members of the great body. 1 Whether the appointment shall be made by a joint or a concurrent vote of the two branches, when the legislature of a state consists of two branches, as it now universally does, the Constitution does not direct. The difference is, that in a joint vote, the members of both houses assemble together and vote numerically. A concurrent vote is taken by each house voting separately, and the vote of one receiving the assent of the other branch.
The person appointed must be at least thirty years of age, have been a citizen of the United States nine years, and at the time of his election, he must be an inhabitant of the state by which he shall be chosen. The senatorial trust requiring great extent of information and stability of character, a mature age is requisite. Participating immediately in some of the transactions with foreign nations, it ought to be exercised by those who are thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years is a reasonable medium between a total exclusion of naturalized citizens, whose merits and talents may claim a share of public confidence, and an indiscriminate and hasty admission of them, which might possibly create a channel for foreign influence in the national council. 2
Each state, whether more or less populous, appoints two senators a number which would have been inconvenient, if the votes in the senate were taken, as in the former congress, by states, when, if the delegates from a state were equally divided, the vote of the state was lost; and which of course rendered an uneven number preferable: but in the senate, a numerical vote is taken in all cases, and the division of opinion among those who represent particular states, has no influence in the general result. If the senate should be equally divided, the casting vote is given by the Vice President, whose office it is to preside in the senate. The equality of states in this respect, is not perhaps defensible on the principle of representing the people, which ought always to be according to numbers; but it was the result of mutual concession and compromise, in which the populous states, enjoying the advantages of proportional numbers in the house of representatives, by which they are enabled to control the interests of the smaller states, yielded as a compensation, the principle of equality in this branch of the legislature, which enjoys in most respects equal, in some respects greater powers.
No other political league or community is known to have possessed as wise adjustment of its capacities and qualities. In Europe, different states or cities have always stood as individual members of the league, and the majority which decided, was the majority of the league, not of the representatives who attended. This composition of both is peculiar to our country, and has been found in practice, neither productive of schism nor deficient in energy. A perfect independence of sentiment has been uniformly manifested by the members, and great superiority to local interests and impressions, particularly sought for in the senate, has always been found there.
It may not be improper to observe in this place, that some of the state legislatures appear to have viewed the relative duties of the senators whom they have appointed, in a more restricted light than it is apprehended the Constitution implies. It seems to have been supposed that the senators were bound to obey the directions of the state legislatures, and the language of some resolutions has been, that the senators be "instructed," and the members of the house of representatives from the particular states "requested," to make or support certain propositions. But surely the opinion is erroneous. A senator is no more bound to obey the instructions of the state legislature, in opposition to his own judgment, than a representative of the people in the other house, is bound by the occasional instructions of his constituents. They are both elected for the purpose of freely and honestly exercising their own judgments according to the best of their capacities.
The moment they take their seats, they commence the task of legislating for the Union, including the state from which they are delegated, whose peculiar interests and desires, it may often be necessary to postpone to the general benefit. On the contrary, the state contemplates and urges its own interests; its inhabitants or the electoral sections of its inhabitants, in like manner, consider and pursue theirs, and it is perfectly proper that they should be represented to and directly pressed upon, the persons so delegated. But, the powers and the duties of those delegates are essentially altered if such requests are converted into binding instructions. In respect to senators, the impropriety of the measure seems peculiarly striking. If one state possesses a right to direct the votes of its senators, every other state must have the same right, and if every state were to exercise such right, no portion of the legislative power would really reside in the senate, but would be held by the states; thus relapsing into the principles of the old confederation, or falling into something worse.
The appointment of a senator is for six consecutive years, but if a vacancy happens, an appointment is made by the executive of the state, for the proportion of the term of service which remains. Under the direction of the Constitution, the senators were at their first meeting divided into three classes: the seats of those of the first class to be vacated at the end of two years, of the second class at the end of four, and of the third at the end of six years; the reason of which was, that the senate should always continue a permanent body. The house of representatives, at the expiration of two years is at an end: a new house, though it may consist of the same members, then succeeds; but the public service requires, for many purposes, that there should always be a senate. In executing the directions of the Constitution, it was so arranged, that two senators from the same state, should not go out at the same time.
The senate at first sat with closed doors, but it was afterwards conceived to be more conformable to the genius of a free country, that the deliberations of both the legislative bodies should be openly conducted, with the exception, however, of its consideration of treaties and appointments to offices on the President's nomination.
On these points, their deliberations would be very improperly exposed to public notice; the national interest is better promoted by waiting for the result.
A majority of the senate constitutes a quorum; that is, a majority of the members of the senate, not a majority of the states. The power of legislation might therefore be suspended by the wilful absence of a majority; but what effect this would have on the government, in other respects, will hereafter be considered.
In respect to the single function of legislation, a deep and serious discussion might be had on a point which has not yet occured, and it is fervently hoped may never arise in this country. If the legislatures of a majority of the states were to omit or refuse to appoint senators, the question would be, whether the majority of those who were actually in office, excluding from the computation the number to which the non-appointing states were entitled, would be sufficient, within the spirit of the constitution, to uphold the legislative power. It is sufficient to state, without presuming to decide the question.
1. Federalist, No. 62. The author avails himself of the first occasion to quote this excellent work, to unite in the general homage that has been paid to it. The letters signed Publius were the production of three enlightened statesmen, Jay, Madison, and Hamilton. They were collected and published under the title of the Federalist, and contain the soundest principles of government, expressed in the most eloquent language.
2. Federalist, No. 62.
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