Setting Up the Senate: Article I and the Federalist Papers


constitution, 4th of july, july 4th

Let’s continue our deep dive into the Constitution with Article I, Section 3, where we learn the structure and function of the Senate. To see the prior article in this series, click here.

The Founders chose a bicameral legislature, separated into two parts that function independently, in order to break up the power invested in the legislature.

Having just asserted their independence from the most powerful empire in the world, the American people wanted to be very sure that power-hungry legislators did not take away the rights for which so many had fought and died.

I will rely on the Federalist Papers to help me explain what the Founders were thinking when they wrote the Constitution.

Click here to go to guides.loc.gov for the entire text of the 85 articles written by Alexander Hamilton, James Madison, and John Jay in letters to the people of New York, published in the newspaper.

Because they collaborated, some Federalist Papers have a clear author, but others cannot be clearly attributed to one author.

To see more about what the Founders thought about the Constitution, read my blog about the Preamble to the Constitution. I have also written a series on the Constitutional Amendments, starting with the First Amendment.

Section 3

1: 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.

The Seventeenth Amendment allowed us to vote directly for the Senate rather than having them appointed by the State Legislatures:

17th Amendment

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The House and the Senate together make up a bicameral, or two-part, legislation. House members are alloted to each state based on population, so that a state with a small population like Alaska has one representative.

A more populous state like Michigan has 14. The most populous state in the union as of this writing is California, with 53 representatives.

This allows bigger states more say in the government. To keep the biggest states from running the country without input from the smaller states, the Constitutional Convention wisely chose to balance the House of Representatives with the Senate.

Each state gets two Senators regardless of population. This gives Alaska, Michigan, and California equal footing in the Senate.

In Federalist Paper #58, James Madison explains why the many members of the House must be balanced by the few in the Senate: “[T]he smaller the number…the stronger must be the interest which they will individually feel in whatever concerns the government.”

In contrast, larger groups will inevitably be ruled by a smaller subgroup: [T]he greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings…the more numerous..the greater is known to be the ascendency of passion over reason.”

He further reasoned, “The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.” In other words, too many representatives will end up with a small subset in charge. More colloquially, too many cooks spoil the brew.

2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

The first Congress had no choice but to begin everyone’s term at the same time. Continuing to empty the Senate every six years, however, would have led to upheaval and discontinuity. It would be like hiring a new staff for a business every six years.

In Federalist Paper #62, Hamilton or Madison states:

“Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.”

The six year term allows stability in the policies maintained: “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…how can that be a rule, which is little known, and less fixed?”

The people need to have a predictable government in order to conduct their own lives: “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?”

Madison or Hamilton answered the idea that a six year term would be long enough for the Senate to establish an aristocracy in Federalist Paper #63:

“Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body…a succession of new representatives would speedily restore all things to pristine order.”

The assumption was that no one would want to stay in the Senate for more than one term because it would take them away from their livelihood. Now that political office is a good living, we have members of the House and Senate who have been there 50 years.

Hamilton or Madison addressed this point in Federalist Paper #62, calling the Senate “an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time.”

It might be time for the American people to talk about term limits. John Dingell, who died at age 92 in 2019, spent 59 years in the House. Presidential candidate Joe Biden left the Senate to become Vice President when he was a relative newcomer, after only 36 years.

3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Founders wanted mature Senators, who would act on the wisdom that comes with experience. In Federalist Paper #62, Madison or Hamilton explained:

“The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the Senator should have reached a period of life most likely to supply these advantages.”

They also wanted Senators whose allegiance was to the United States and to their own state: “[P]articipating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.”

He did not want to be unfair to those who have adopted the United States as their new home:

“The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.”

After the American Civil War of the 1860s, the term carpetbaggers arose to describe Northerners who went to the South during Reconstruction and ran for political office in their new state. The term came from a type of luggage made from carpet fabric.

People who move from one area to another in order to run for office in the new area are often looked upon as interlopers, having no ties to the area and imposing their own ideas on the established residents.

Hillary Clinton provided a modern illustration of the term when she moved to New York in 1999 to run for Senate in 2000 after leaving the White House when her husband finished his second term as President of the United States.

Her official home state before moving to the White House was Arkansas, where her husband had been governor. She voted in Arkansas elections before establishing New York residency and running for the New York Senate.

4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

With an even number of Senators, someone had to be the tie breaker. The Founders chose the Vice President for this role. In Federalist Paper #68, Hamilton explained why the President of the Senate is not chosen from among the Senators:

“[T]o secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the Senator of any State from his seat as Senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant from a contingent vote.”

In other words, a Senator who only votes in the case of a tie has lost the influence due to the state that sent him or her. The Vice President has no vote in the Senate unless the votes are evenly split, which would only happen with a very contentious issue.

The current Vice President, Mike Pence, has cast the tie-breaking vote on the nomination of judges and other government appointees. Joe Biden, on the other hand, never cast a deciding vote during his time as Vice President. (Source: Wikipedia).

5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Federalist Papers do not address the President pro tempore. This office has no official duties beyond presiding over the Senate in the absence of the Vice President.

The President pro tempore is third in line to assume the Presidency in the case of the death, resignation, or incapacitation of the President, after the Vice President and the Speaker of the House.

6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of  two thirds of the Members present.

The House of Representatives brings the impeachment charges, but the Senate tries the President to determine whether to convict. In Federalist Paper #65, Hamilton explains:

“Where else but in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Though it sounds strange to our modern ears to hear the Senate given more dignity than the Supreme Court, Hamilton explains further that it has to do with the number of people in each body:

“The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

Dealing with the wisdom of splitting impeachment powers between the House and the Senate, Hamilton states in Federalist Paper #66:

“The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches.”

The requirement of a two thirds vote further protects the President:

“As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, willl be as complete as itself can desire.”

We have seen the importance of the bicameral legislature with the impeachment of President Donald Trump in 2020. He was the third President to be impeached, along with Andrew Johnson and Bill Clinton.

The Democrat-led House of Representatives, headed by Nancy Pelosi of California, accused trump in September of 2019 of collusion with Russia to influence the Presidential election of 2016.

The official impeachment occurred on December 18. The trial began on January 16 and concluded February 5. The charges were abuse of power and obstruction of Congress.

The House gave no solid evidence of their claims, and the Republican-led Senate, headed by Mitch McConnell of Kentucky, acquitted him. Republican Mitt Romney, incidentally, voted for conviction.

Had the accusation come from the same quarters as the judgement, there would have been no way ensure a fair trial. By the same token, you can’t have the same lawyer representing both parties in a lawsuit.

7: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Impeachment, Trial, Judgment and Punishment, according to Law.

If an impeachment is successful, then next step could be a trial in the court of law. When Richard Nixon was destined for impeachment in 1974, he resigned before the House voted on the articles of impeachment.

The accusation was that he allowed his staff members to break into the Democratic National Headquarters in 1972 and then hid the evidence.

The charges were obstruction of justice, abuse of power, and contempt of Congress. His successor, Gerald Ford, pardoned him.

Having been pardoned, Nixon did not have to face state and federal charges.

Answering the question of whether the Supreme Court was a better choice for trying the President, Hamilton stated:

“It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives.”

Perhaps more acceptably to our sensibilities, he furthered his argument with the idea that a conviction of an impeached President would likely lead to criminal charges that would be tried by the Supreme Court:

“After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune?

Section 4: Elections

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Hamilton, in Federalist Paper #61, noted that objections had been made about specifying the election places. He responded: “[W]hen the place of election is at an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will be the same whether that distance be twenty miles or twenty thousand miles.”

Voter apathy is a deciding factor in many elections, because the people who actually make it to the polls are the people whose votes decide the outcome of elections.

On the subject of times for elections, Hamilton stated: “No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time.”

In the eighteenth century, news arrived on foot or on horseback. In the twenty first century we live in a world of instant feedback. All the states hold the national elections on the same day, and we sit in front of the television waiting for the results.

In Federalist Paper #59, Hamilton said on the subject of Congress regulating elections: “Its propriety rest upon the evidence of this plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION.

If the President had control of the Congressional elections, or if the Supreme Court had control of the Congressional elections, that would be a bargaining chip to be used against Congress to direct its activities.

By putting Congress in charge of elections, the Founders took away a possible source of corruption.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

The Twentieth Amendment changed the date to January third:

20th Amendment

Section 1

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

The President stays in office all year, but Congress comes and goes. This allows the Congress members to go back to their livelihoods between sessions, because Congress was not meant to be a full time job.

It also slows down the wheels of government. If Congress is not in session, no laws are being passed.

As Hamilton expressed in Federal Paper #70,

“Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature…best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.”

In the next post we will continue our consideration of Article I, examining what Congresss is allowed to do and what is forbidden. We will explore the legislative process as well.

Keep learning with me as we explore the brilliant minds behind the Constitution of the United States of America.

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Carla Pittman

Carla is a Speech Pathologist working in Home Health by day and a blogger by night. She married Chris in 2008 and is working to help him unite his love of guns with his passion for teaching others to carry safely. Her other impetus for blogging is to make Americans aware of their Constitutional rights, which are at risk in the current political environment.

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