On this day in 1788, Federalist Paper No. 66 is published. Alexander Hamilton (a.k.a. “Publius”) continues his discussion of the constitutional provision that makes the Senate a court for the trial of impeachments. He addresses several specific objections.
First, does the plan violate the principle of separation of powers? You may remember that Publius already discussed separation of powers in earlier papers, and he refers to those arguments again here. Yes, the Constitution abides by the concept of separation of powers, but it also allows for overlap in limited circumstances. (For instance, a President many veto legislation, which is a small overlap of the executive/legislative functions.) Publius notes that such “partial intermixture[s]” are not only permissible, but they are also sometimes necessary. They enable the “mutual defense of the several members of the government against each other.”
In short? Checks and balances in government are a good thing.
Second, some thought that the Senate was being made too powerful: Not only can it decide impeachments, but it also has a role in the “formation of treaties and in the appointment to offices.” Publius views these objections as too vague. He’d rather look to each of the three powers, in turn, and see if they make sense. In any event, he believes that the House has plenty of prerogatives, making it an even match for the Senate. For instance, the House has the “exclusive privilege of originating money bills” and the “sole right of instituting impeachments.”
Third, the Senate has a role in appointing men to office. Will that make Senators overly “indulgent judges of the conduct of men, in whose official creation they had participated”? Publius thinks too much is made of this point. The Senate is not CHOOSING the people to appoint. It is only approving or rejecting a choice made by the President.
Fourth, the Senate has a role in making treaties. Could Senators be their own judges, in the event of a “corrupt or perfidious execution of that trust”? If the Senate “combined with the Executive in betraying the interests of the nation in a ruinous treaty” how could they judge that case? Publius acknowledges that the argument is not without merit; however, he thinks that some security might be found in the fact that treaties are made by a “JOINT AGENCY” between the President and “two thirds of the members of [the Senate] selected by the collective wisdom of the legislatures of the several States.”
Anyway, at some point, impeachments are not meant to punish “acts done in a collective capacity.” Are we to impeach a majority of the House or Senate if they pass an unconstitutional law? (Sounds nice, doesn’t it?! Ha.) That is impractical. Instead, accountability for such violations of the public trust must be found in the people and the election process.
And, so, once again, Publius falls back to the ultimate authority—the people! At the end of the day, if the government is acting unconstitutionally, we have no one to blame but ourselves.
Logistical note for those who care:
You will see various publication dates for this paper. I’ve gone with the one in the Hamilton Papers.