ChrisWeigant.com

The Federalist Papers (Number 65)

[ Posted Tuesday, December 17th, 2019 – 17:32 UTC ]

Program Note:

I'll be spending today and tomorrow in preparation for our year-end awards columns, so I thought I'd run a special historical look back for my readers by reprinting the two Federalist Papers written by Alexander Hamilton on the subject of impeachment. Obviously, this is relevant to current events in Washington.

Both of these (today's and tomorrow's) were published in the New York Packet newspaper in March of 1788. As with all the Federalist Papers, they were published anonymously under the signature "PUBLIUS." The Federalist Papers were a series of arguments in favor of adopting the newly-written Constitution, and were countered by the lesser-known Anti-Federalist Papers, a series of arguments against adopting the new form of government being considered.

A few things are worth pointing out to increase reader comprehension. Hamilton is constructing his argument on the powers of the Senate (the original title was: "The Powers of the Senate Continued"), but please remember that the Senate as originally designed was not comprised of elected officials. Senators, up until the Seventeenth Amendment was ratified in 1913, were appointed by each state's legislature, not elected.

The second thing worth clarifying is that in the vernacular of Hamilton's day, the term "party" (as in political parties) did not yet really exist. Instead, Hamilton speaks of "faction," which should be read as interchangeable from the way we use "party" today. This is a subtle point, but one worth making because today factions are defined as subdivisions within political parties, which is not what Hamilton is referring to at all. To further confuse things, at the end of the second paragraph are two sentences that many have been quoting recently, where Hamilton did use the term "parties" -- but he is not using it in the modern political sense here, he is merely using it to refer in a general way to "groups of people."

For the next two days, here is what one of the Founding Fathers had to say about why the impeachment process was designed the way it was, and why he thinks it was the best method possible to the framers of the Constitution.

-- Chris Weigant

 

The Federalist Papers, Number 65

[Originally published March 7, 1788]

To the People of the State of New York:

THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

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. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

Where else than 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?

Could the Supreme Court have been relied upon as answering this description? 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. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. 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.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual 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? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?

Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.

Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.

But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. 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. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.

-- PUBLIUS

 

Follow Chris on Twitter: @ChrisWeigant

 

28 Comments on “The Federalist Papers (Number 65)”

  1. [1] 
    Elizabeth Miller wrote:

    Youth may be no guarantee for innovation but, in The Federalist Papers (Number 65) can be found inspiration for the same … and, for the promise of America!

  2. [2] 
    nypoet22 wrote:

    sure, the framers talked a good game in 1788. but then in 1789 they were complicit in baking cake into the constitution. the two "let them eat cake" party system is a travesty that should not be allowed to continue.

    impeach pie.

  3. [3] 
    Michale wrote:

    "Now, I don't know what that all means.. But it sounds pretty bad.."
    -Tom Cruise, A FEW GOOD MEN

  4. [4] 
    Michale wrote:

    Today's Democrat Party..

    Eric Swalwell's Trump comment on CNN sparks Twitter furor: 'We can only conclude that you're guilty'
    https://www.foxnews.com/politics/eric-swalwell-sparks-controversy-by-saying-if-trump-refuses-to-send-witnesses-we-can-only-conclude-that-youre-guilty

    Americans are guilty and must prove their innocence..

    #SadDay

    Trump haters need to understand that, in America, Americans don't have to prove their innocence..

    Accusers must prove guilt...

  5. [5] 
    Michale wrote:

    "I believe the Fifth Amendment was just repealed on live television,"

    So, obviously, Democrats believe that Obama was guilty of Border Patrol Officer Brian Terry's death..

    After all, Obama refused to turn over FAST & FURIOUS documents so, according to the moron Sealwell's "logic", Obama was guilty and should have been impeached..

    Do Democrats really THINK before they open their mouths??

  6. [6] 
    Don Harris wrote:

    "Do Democrats really think before they open their mouths?"

    No. Same as Republicans.

    They don't have to think before they speak because most people don't think when they listen.

  7. [7] 
    Michale wrote:

    "Touche' Salesman. Do come in.."
    -Homer Simpson

  8. [8] 
    Michale wrote:

    CNN Reports Democrats Are Super-Solemn About Impeachment Vote… and Have Also Been Ordered Not to Victory Dance
    https://www.mediaite.com/politics/cnn-reports-democrats-are-super-solemn-about-impeachment-vote-and-have-also-been-ordered-not-to-victory-dance/

    The mere fact that Democrats have to remind themselves not to do a victory dance, have to remind themselves to be solemn, proves the insincerity of their "solemn duty" claims..

    "The key is sincerity. Once you can fake that, you got it made.."

    Democrats have been wanting to do this since before President Trump took office...

    They ain't fooling anyone with their faux-solemn BS...

  9. [9] 
    nypoet22 wrote:

    irrespective of whether the democratic congresscritters' solemnity is sincere or affected, the situation is serious and solemn on its own merits.

    just because they're out to get you for something doesn't mean you didn't do it.

    JL

  10. [10] 
    Michale wrote:

    President Trump's Impeachment Poll Watch..

    PTIPW...

    https://www.realclearpolitics.com/epolls/other/public_approval_of_the_impeachment_and_removal_of_president_trump-6957.html

    NO IMPEACHMENT is gaining ground overall...

    Democrats are losing the battle AND the war.. :D

  11. [11] 
    Michale wrote:

    irrespective of whether the democratic congresscritters' solemnity is sincere or affected, the situation is serious and solemn on its own merits.

    The fact that this was the goal even before President Trump took office belays the factual nature of that claim..

    just because they're out to get you for something doesn't mean you didn't do it.

    Perhaps...

    But being WRONG about it time and time and time again indicates that justice is not the goal here..

    Democrats can falsely cry WOLF only so many times before real patriotic Americans just tune them out..

  12. [12] 
    Michale wrote:

    But, you are (of course) correct..

    If the depth of the hatred is deep enough, all actions against the hated one are justified...

  13. [13] 
    Michale wrote:

    "In war, all things are pre-forgiven"
    -WORD OF HONOR, Nelson DeMille

  14. [14] 
    Elizabeth Miller wrote:

    Well, Michale, "just remember, my friend, when you look up in the sky, you can see the stars and still not see the light, that's right".

  15. [15] 
    Michale wrote:

    Well said.. :D

    Let's just not fool ourselves and think that this is some sacred solemn duty that Democrats undertook reluctantly..

    This is nothing but pure partisan hatred and bigotry that sprang into being on 10 Nov 2016 when Donald Trump wiped the floor with Hillary Clinton....

    This is nothing but the epitome of sore luserism...

    Plain and simple..

    So yea, I see the stars AND see the light..

    Democrats are only fooling themselves.. No one else..

  16. [16] 
    Elizabeth Miller wrote:

    Well said.. :D

    Of course, it's from one of my favourite Eagles tunes and it gives me no peaceful easy feeling, you know.

  17. [17] 
    Michale wrote:

    Of course, it's from one of my favourite Eagles tunes and it gives me no peaceful easy feeling, you know.

    Can't go wrong with The Eagles :D

  18. [18] 
    Michale wrote:

    When Hate Becomes an Agenda

    Trump so infuriated his opponents that, rather than find arguments to convince a majority of Americans that the president’s policies were flawed, his enemies instead sought to destroy him.

    When a party, an ideological movement, and an entire political agenda are based on hatred, people and policies become warped. The left-wing loathing of Trump has now tainted almost every Democrat’s agenda and unhinged most of the party’s major players.
    https://amgreatness.com/2019/12/15/when-hate-becomes-an-agenda/

    WORD.....

  19. [19] 
    dsws wrote:

    "Faction" as used at the time of the founding is not the same as party. Parties are long-lasting institutions. A party necessarily includes some electioneering apparatus, a platform, a brand identity, a set of politicians in and out of office, and a collection of different constituencies among the general population. The constituencies rotate in and out: sometimes switching parties, sometimes dissolving, and sometimes being left out in the cold as a bipartisan consensus forms against them. All of the components can be swapped out, as the atoms of a person's body are over the years. But the party marches on, its existence (and that of its rival) effectively guaranteed by the single seat plurality voting system.

    The founders had no word for parties, because parties had not been invented.

  20. [20] 
    Kick wrote:

    Mike
    4

    Americans are guilty and must prove their innocence..

    #SadDay

    That's rich coming from the Trump Cult drones who didn't seem all too concerned about "innocence until proven guilty" as they invited foreign interference into our election and chanted over and over and continue chanting "lock her/him up" to this day about Trump's political opponents. Trump has once again invited foreign interference into our election in order to kneecap his political opponent while the Trump cult insists it's okay because "Biden."

    The Trump Cult ignores the Trump modus operandi:

    * Trump announces he's sent his investigators to Hawaii and smears Barack Obama's name in all kinds of ways... lies... all lies... but the Trump cult has no problem with it because it's Obama.

    * He asks Russia to hack his political opponent, which they do, and accuses her of criminal activity... they chant "lock her up," and the Trump drones and Clinton haters have no problem whatsoever with it because it's a Clinton. Innocent until proven guilty? Hardly. It's chants of "lock her up"... not coincidentally chants being led by some of those very same criminals who are now actually sitting in prison or soon will be, but I digress.

    * Trump asks the President of Ukraine to announce an investigation into Joe Biden. You think the dipshits are concerned about someone being accused of being "guilty until proven innocent"? Nope. They're chanting "lock him up" like useful idiots on cue. Same shit, different day.

    So would you like some cheese to go with your whine about guilty until proven innocent or would you be okay if the Democrats outsource their future investigations to foreign nations? The majority of the Trump Cult seem okay with it as long as it's a foreign nation doing the investigating; it only seems to chap their asses when Their Orange Worship is investigated by Democrats exercising their responsibility of congressional oversight.

    Trump haters need to understand that, in America, Americans don't have to prove their innocence..

    Accusers must prove guilt...

    The "lock them up" chanting Trump Cult drones are taking issue with people being considered guilty until they prove their innocence. Well, cry me a river... and check your mirrors you hypocrites. #Pathetic

  21. [21] 
    Kick wrote:

    Mike
    5

    So, obviously, Democrats believe that Obama was guilty of Border Patrol Officer Brian Terry's death..

    So, obviously, you're still claiming like a babbling fool that you can read Democrats' minds and still deflecting, deflecting, deflecting to whining incessantly about Barack Obama... as if that absolves Your Orange Worship.

    After all, Obama refused to turn over FAST & FURIOUS documents so, according to the moron Sealwell's "logic", Obama was guilty and should have been impeached..

    Wrong... and a total false equivalency:

    https://www.factcheck.org/2019/03/trump-wrong-about-obama-documents/

    So, obviously, you're going to continue to lie and push the false equivalency narrative that Barack Obama's administration who turned over thousands and thousands of documents and allowed his aides to testify is the equivalent of Donald Trump refusing to cooperate with Congress in any way and produce zero documents and order his subordinates and even Americans no longer employed by him to break the law and refuse to comply with congressional requests for production and requests to appear before Congress and give testimony. #Pathetic

  22. [22] 
    Kick wrote:

    Mike
    8

    Democrats have been wanting to do this since before President Trump took office...

    You should really pick a lane from this impeachment being a years' in the making impeachment to this being the fastest impeachment in history: It can't be both despite all the whiny GOP incessant propaganda drivel and spew that contradicts itself ad nauseam.

    They ain't fooling anyone with their faux-solemn BS...

    So then it would take a special kind of stupid for someone to claim there was only a "long odds" 60/40 chance of Trump being impeached then, wouldn't you say?

    On the record: Trump will be impeached. Sure thing. :)

  23. [23] 
    Kick wrote:

    JL
    9

    just because they're out to get you for something doesn't mean you didn't do it.

    This! This! This!

    :)

  24. [24] 
    ListenWhenYouHear wrote:

    I have said this before, but I honestly believe that there is a chance that the Senate Republicans will vote unanimously to remove Trump from office. Before you call for me to undergo a psychiatric evaluation in a padded cell, hear me out...

    Trump is the most corrupt President in our country’s history. His corruption only got worse after he realized that the DOJ considers him to be above the law while in office...which sadly is case in our country.

    The Founding Fathers, in all their wisdom, could never have envisioned a narcissistic psychopath like Trump ever getting elected. He’s far worse a counterintelligence threat than any of the worse-case scenarios our intelligence agencies ever believed could exist.

    Our government was completely unprepared for something like Trump. He has blatantly dismissed our intelligence agencies in favor of following Putin’s playbook on foreign policies. I am fairly sure Trump’s Russian ties have been exposed by now to these intelligence agencies, and they recognize the threat he poses. Only problem is that our laws do not really permit them to stop Trump from doing anything he wishes as long as he is in office. The powers of the President are astoundingly broad to allow them to deal with unforeseen crises quickly and efficiently.

    Trump acts without thinking or warning (see: U.S. military’s Syrian retreat). His focus is solely on himself...all the time! Having a psychopath with that much power is extremely dangerous; and the combo of Trump’s narcissism and his general stupidity make him even a greater threat.

    I am guessing that the counterintelligence investigations into Trump have uncovered more damning information than was thought possible. Trump has never been one to hide his criminal acts very well — sadly, it’s just that no one really tried to look at them prior to his taking office as to why they were not uncovered sooner! We know that the Senate Intelligence Committee was briefed on Trump’s claim that the DNC server was in the Ukraine being Russian propaganda. Strange that they were told but that the House was not given the same briefing from our intelligence agencies for some reason. This is just a guess, but I believe our intelligence agencies also briefed the Senate on the outcome of the counterintelligence investigation and told them that something had to be done to remove Trump from office 1) as quickly as possible, and 2) as quietly as possible - i.e., without Trump being aware he is being removed.

    Trump has to be removed from office before he can do anything to damage our country out of revenge in one of his tantrums. The only way to accomplish both of these is for Trump to believe that the Senate is going to, without a doubt, grant him an acquittal.

    What has made me think that this is the plan has been just how blatantly corrupt the Republicans have been in response to the impeachment. You have Mitch McConnell going on Hannity and announcing that he will run the impeachment trial according to how Trump’s lawyers want it run. Who does that??? What does it serve for him to do that? McConnell is announcing to the nation that the impeachment trial will be a farce. The only reason to make such an announcement is to pacify Trump.

    Now , I don’t think the GOP went along with this willingly. I think it’s much more likely that the intelligence agencies remember Mitch refused letting the public know Trump was being investigated during the election and this time they made it clear that Trump must be removed from office and the GOP can either assist with his removal and look like heroes, or they can go down with him for acting as willing Russian assets...but he had to be removed ASAP.

    Plus, the Republicans could come off looking like heroes and patriots for playing along to keep Trump from realizing that he was done for! If he spins it correctly, Lindsey Graham will be able to explain away all of his asskissing and will be a hero for putting the good of the country before his own political career. It may be the best hope they have for not being run out of office in 2020.

    It was clear that Trump was compromised well before he was elected, and he has been following Putin’s playbook ever since! I know that my scenario may seem unlikely, but I hope it will come to pass if only to have evidence showing that our Congress can put country before party. If the Republicans are not defending the Constitution by playing along with Trump until he can be removed from office, then they have completely betrayed their oaths of office in unprecedented blatancy...and God help us recover from their corruption of our political system.

  25. [25] 
    C. R. Stucki wrote:

    Listen

    OK, I've "heard you out" - NOW I "call for you to undergo a psych evaluation in a padded cell"!!!

  26. [26] 
    nypoet22 wrote:

    @crs,

    wishful thinking about future events isn't pathological, no matter how unrealistic.

    JL

  27. [27] 
    ListenWhenYouHear wrote:

    CRS

    I know...I know... but it is the only explanation that I can come up with to explain how blatantly bad the GOP has been in defending Trump during this whole impeachment procedure. They have gone to extraordinary lengths to publicly reassure Trump that they are going to support and protect him; but they have done it in such an obviously dishonest way that it basically announced to the rest of the world that Trump is truly guilty of the charges against him!

  28. [28] 
    Kick wrote:

    Russ
    24|27

    Nothing wrong at all in believing/hoping -- despite all outward appearances to the contrary -- that the representatives of "We the People" of the United States will keep their oaths to God, our country, and our democracy of laws rather than continuing to gaslight the People in service to the money laundering criminal con artist wanna-be dictator ignoring our laws in service to himself and his love of money, his insatiable neediness of praise, and in service to our adversaries.

    Sadly, Trump is owned... bought and paid for... and the GOP are complicit in it.

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