John Parillo Explains Federalist 65

In yet another paper that Hamilton wrote for us today, Federalist 65 addresses the unique role of the Senate in its power to impeach. Hamilton points out that “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective.”^[1] To remove an elected official is a grave responsibility, one that is not to be taken lightly or with an eye to political advantage. Those subject to impeachment must be guilty of some “abuse or violation of some public trust” and not just be “denominated POLITICAL”. (Emphasis in the original.) The very nature of impeachment is that it will tend to divide the “passions of the whole community” between those supporting the person being impeached and those opposed. This will necessarily result in “pre-existing factions” fighting each other, and the possible result being influenced by the “comparative strength of parties” rather than by the guilt or innocence of the person being investigated.

Being familiar with Socrates, the Founders were rightly concerned about impeachment being in the hands of democracy. Those representatives that were directly chosen by the people would “be too often the leaders or the tools of the most cunning or the most numerous faction”. As such it would be unlikely that they would be entirely neutral. Because of this, it is the Senate that is “the most fit depositary of this important trust.”

While the Senate ultimately votes on impeachment, the charges are preferred to the Senate by the House of Representatives. Hamilton acknowledges that this arrangement comes directly from the British where charges are preferred by the House of Commons and then it is the House of Lords that makes the decision. Several of the states have followed this model as a way for the legislative branch to have a “bridle” on the executive. But it is only the Senate that has a “tribunal sufficiently dignified” to adjudicate a conflict between the representatives of the people and an individual accused by them.

Here we see the modest role of the Supreme Court that the founders envisioned, where its sole responsibility is to interpret those laws that were written by Congress and signed by the President. And it would be required that the decision-making process be proper in order to perform the role of “reconciling the people to a decision” that might otherwise appear to be politically driven, and which would therefore put in danger the “public tranquility”. Another reason to keep the process out of the Supreme Court would be that such a momentous decision belongs in a larger body for the same reasons that the Founders did not want to be ruled by small groups of aristocrats as was argued in earlier papers regarding the size of the Senate and the House.

Hamilton goes on to point out that impeachment only removes a person from office, and subjects them to being ostracized by their country. There is nothing that prevents further prosecution of that person for crimes. Since the Supreme Court is the ultimate arbiter of the law, they may have to rule on a criminal procedure when they had already made an impeachment decision. There is the possibility that an impeachable offence may not be criminal, but if the same people are making both decisions, it is likely that they would want for them to both share the same outcome because that is the likely result for “those who know anything of human nature”.

The Founders considered the possibility of having a separate group of people just for the purpose of reviewing impeachments. There are several objections to this structure. The first is the cost of maintaining this council. The Founders were careful to be good stewards of the people’s money. The second objection would be adding of complexity into a political system that was intended to be small and limited in scope. Another objection would be that an innocent person would have to wait for the assembling of this independent body which would delay justice and perhaps prejudice the outcome. And lastly, Hamilton points out that such a body might be “exposed …to the persecution of an intemperate or designing majority in the House of Representatives.” And we have already seen the Founder’s profound distrust for direct democracy.

What is the standard that citizens should use to judge the new Constitution? “If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.” The Founders knew that such perfection did not exist. The very best that they could do would be to design the Constitution with human nature in mind, and for the country to adhere to their design as closely as possible.

Indeed

1. All quotes are from https://guides.loc.gov/federalist-papers/text-61-70 ↑

To read all of John Parillo’s work on the Federalist Papers, check here.

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