In closing out Federalist 62 Madison mentions the issue of laws in general. I bring this up here because Madison returns to the theme again in Federalist 63. It is, once again, worth quoting him as he speaks to us today.
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. [1]
If we go back to our Aristotle, we remember that a comprehensive collection of laws should be largely unnecessary if the people understand the intent of their constitution and are educated in the culture and traditions of their city state. As the great Roman historian Tacitus reminds us, ‘The more corrupt the state, the more numerous the laws.’
In Federalist 63 Madison continues with the discussions on the nature of the Senate. Given the length of this paper it is clear that there were substantial objections to this particular body, particularly to the relatively long term that Senators would serve. Madison mentions that none of the past republics were long lived that did not have a Senate which was mostly exempt from the whims of democracy. From the Greeks in Sparta, to the Romans, to the people of Carthage, all republics had a body that was carefully selected and designed to dampen the passions of the people. This “tyranny of their own passions”, as Hamilton described direct democracy, was something that the founders feared, and that we now see they did with great foresight. Let us remember that Plato felt that a small body of select men was one of the preferred forms of government, and certainly preferable to the tyranny that must result from the divisions that are created by democracy.
With this in mind, we see the reason that it is the Senate, not the President, who is responsible for treaty agreements. Without this “select and stable member of the government, the esteem of foreign powers will not only be forfeited” it is also likely that there will be a “variable policy” that swings with the change of Presidents as recent events have proven once again. It matters what the rest of the world thinks of us because it is important that our positions “should appear to other nations as the offspring of a wise and honorable policy”, rather than the actions of an erratic and changing leader. Further, it is always possible that policy might be influenced “by some strong passion or momentary interest” rather than by wisdom. By keeping treaties in the hands of a more mature group, the founders felt those risks were largely mitigated.
Hamilton divides governmental decisions into those that have “an immediate and sensible operation” and those that have “a gradual and perhaps unobserved operation.” It is possible to allow democracy to have sway on the first group, but decisions that change the essence of the country are best restricted to a more deliberative body. It is possible that “there are particular moments in public affairs when the people…may call for measures which they themselves will afterwards be the most ready to lament and condemn.” Recent cries to change longstanding practices like filibuster rules, which are designed to temper rash movements, spring to mind. In places like Greece and Rome, a Senator “was appointed not only for life” but by the Senate itself. Hamilton declares that, unlike the Roman Senate, the one that is proposed by the founders seeks to “blend stability with liberty” by being chosen by state legislators, and having a limited, albeit longer, term.
From there Hamilton goes through a bit of a history lesson regarding the deliberative bodies that preceded that which the Founders designed. Even in the purest democracies in Greece, executive functions were conducted by people representing the larger population. The Senate in Solon Greece consisted of nine elected people and was a replacement for the previous body of between four and six hundred representatives, which had proven unworkable. The Senate of Carthage was elected, the Ephori of Sparta and the Tribunes of Rome were elected and held almost unlimited powers. The bottom line here is that the new Senate of the United States was designed to be the best of all deliberative bodies, designed with all the advantages of the ancient bodies, and adding into it a representative element that was still removed from direct democracy.
To those who objected that the longer term of the Senate might lead to tyranny, Hamilton responds that several things must happen first in order for that to come to fruition. First, the Senate would need to corrupt itself. The second would be that the Senate would need to corrupt a majority of the state legislatures because it is they that choose the Senators. And finally, they would have to corrupt the House of Representatives because all laws must originate in that body, as well as all spending. I should point out here that both of those last two restrictions have been eroded over time, as well as the previously discussed error of the 17th Amendment.
And finally, should the Senate somehow manage to evolve into an aristocratic body with control over the people “from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles.”
Indeed.
To read all of John Parillo’s work on the Federalist Papers, check here.
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- All quotes are from https://guides.loc.gov/federalist-papers/text-61-70 ↑