Anti-Federalist No. 59 – 73

Anti-Federalist No. 59

THE DANGER OF CONGRESSIONALCONTROL OF ELECTIONS

Alexander Hamilton, in Federalist #59, addresses this same topic from an opposing viewpoint.
This essay was written anonymously by “VOX POPULI,” and appeared in The Massachusetts
Gazette on October 30, 1787.
. . I beg leave to Jay before the candid public the first clause in the fourth section of the first
article of the proposed Constitution:
“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 choosing senators.”
By this clause, the time, place and manner of choosing representatives is wholly at the disposal
of Congress.
Why the Convention who formed the proposed Constitution wished to invest Congress with such
a power, I am by no means capable of saying; or why the good people of this commonwealth
[Massachusetts] should delegate such a power to them, is no less hard to determine. But as the
subject is open for discussion, I shall make a little free inquiry into the matter.
And, first. What national advantage is there to be acquired by giving them such a power?
The only advantage which I have heard proposed by it is, to prevent a partial representation of
the several states in Congress; “for if the time, manner and place were left wholly in the hands of
the state legislatures, it is probable they would not make provision by appointing time, manner
and place for an election; in which case there could be no election, and consequently the federal
government weakened.”
But this provision is by no means sufficient to prevent an evil of that nature. For will any
reasonable man suppose-that when the legislature of any state, who are annually chosen, are so
corrupt as to break thro’ that government which they have formed, and refuse to appoint time,
place and manner of choosing representatives-I say, can any person suppose, that a state so
corrupt would not be full as likely to neglect, or even refuse, to choose representatives at the time
and place and in the manner prescribed by Congress? Surely they would. So it could answer no
good national purpose on that account; and I have not heard any other national advantage
proposed thereby.
We will now proceed, in the next place, to consider why the people of this commonwealth
should vest Congress with such a power.
No one proposes that it would be any advantage to the people of this state. Therefore, it must be
considered as a matter of indifference, except there is an opportunity for its operating to their
disadvantage-in which case, I conceive it ought to be disapprobated.
Whether there is danger of its operating to the good people’s disadvantage, shall now be the
subject of our inquiry.
Supposing Congress should direct, that the representatives of this commonwealth should be
chosen all in one town, (Boston, for instance) on the first day of March – would not that be a very
injurious institution to the good people of this commonwealth? Would not there be at least ninetenths
of the landed interest of this commonwealth entirely unrepresented? Surely one may
reasonably imagine there would. What, then, would be the case if Congress should think proper
to direct, that the elections should be held at the north-west, south-west, or north-east part of the
state, the last day of March? How many electors would there attend the business? And it is a
little remarkable, that any gentleman should suppose, that Congress could possibly be in any
measure as good judges of the time, place and manner of elections as the legislatures of the
several respective states.
These as objections I could wish to see obviated. And I could wish the public inquiry might
extend to a consideration, whether or not it would not be more conducive, to prevent a partial
representation, to invest Congress with power to levy such a fine as they might think proper on
states not choosing representatives, than by giving them this power of appointing time, manner
and place.
It is objected by some, that Congress could not levy, or at least, could not collect, such a fine of a
delinquent state. If that is the case, Congress could not collect any tax they might think proper to
levy, nor execute any order whatever; but at any time any state might break through the national
compact, dissolve the federal constitution, and set the whole structure afloat on the ocean of
chaos.
It is, therefore, proposed to the public to consider, whether the said clause in the fourth section of
the first article can answer the only purposes for which it is said to have been provided, or any
other which will prove any advantage either to the nation or state.
VOX POPULI
Antifederalist No. 60 WILL THE CONSTITUTION PROMOTE
THE INTERESTS OF FAVORITE CLASSES?
John F. Mercer of Maryland was the author of this essay, taken from his testimony to members
of the ratifying conventions of New York and Virginia, 1788, (From the Etting Collection of the
Historical Society of Pennsylvania.)
We have not that permanent and fixed distinction of ranks or orders of men among us, which
unalterably separating the interests and views, produces that division in pursuits which is the
great security of the mixed Government we separated from and which we now seem so anxiously
to copy. If the new Senate of the United States will be really opposite in their pursuits and views
from the Representatives, have they not a most dangerous power of interesting foreign nations by
Treaty [to] support Their views?-for instance, the relinquishment of the navigation of [the]
Mississippi-and yet where Treaties are expressly declared paramount to the Constitutions of the
several States, and being the supreme law, [the Senate] must of course control the national
legislature, if not supersede the Constitution of the United States itself. The check of the
President over a Body, with which he must act in concert-or his influence and power be almost
annihilated-can prove no great constitutional security. And even the Representative body itself . .
. are not sufficiently numerous to secure them from corruption. For all governments tend to
corruption, in proportion as power concentrating in the hands of the few, tenders them objects of
corruption to Foreign Nations and among themselves.
For these and many other reasons we are for preserving the rights of the State governments,
where they must not be necessarily relinquished for the welfare of the Union. And, where so
relinquished, the line should be definitely drawn. If under the proposed Constitution the States
exercise any power, it would seem to be at the mercy of the General Government. For it is
remarkable that the clause securing to them those rights not expressly relinquished in the old
Confederation, is left out in the new Constitution. And we conceive that there is no power which
Congress may think necessary to exercise for the general welfare, which they may not assume
under this Constitution. And this Constitution, and the laws made under it, are declared
paramount even to the unalienable rights which have heretofore been secured to the citizens of
these States by their constitutional compacts. . . .
Moreover those very powers, which are to be expressly vested in the new Congress, are of a
nature most liable to abuse. They are those which tempt the avarice and ambition of men to a
violation of the rights of their fellow citizens, and they will be screened under the sanction of an
undefined and unlimited authority. Against the abuse and improper exercise of these special
powers, the people have a right to be secured by a sacred Declaration, defining the rights of the
individual, and limiting by them the extent of the exercise. The people were secured against the
abuse of those powers by fundamental laws and a Bill of Rights, under the government of Britain
and under their own Constitution. That government which permits the abuse of power,
recommends it, and will deservedly experience the tyranny which it authorizes; for the history of
mankind establishes the truth of this political adage-that in government what may be done will
be done.
The most blind admirer of this Constitution must in his heart confess that it is as far inferior to
the British Constitution, of which it is an imperfect imitation, as darkness is to light. In the
British Constitution the rights of men, the primary object of the social compact, are fixed on an
immoveable foundation and clearly defined and ascertained by their Magna Charta, their Petition
of Rights, their Bill of Rights, and their effective administration by ostensible Ministers secures
responsibility. In this new Constitution a complicated system sets responsibility at defiance and
the rights of men neglected and undefined are left at the mercy of events. We vainly plume
ourselves on the safeguard alone of representation, forgetting that it will be a representation on
principles inconsistent with true and just representation; that it is but a delusive shadow of
representation, proffering in theory what can never be fairly reduced to practice. And, after all,
government by representation (unless confirmed in its views and conduct by the constant
inspection, immediate superintendence, and frequent interference and control of the people
themselves on one side, or an hereditary nobility on the other, both of which orders have fixed
and permanent views) is really only as one of perpetual rapine and confusion. Even with the best
checks it has failed in all the governments of Europe, of which it was once the basis, except that
of England.
When we turn our eyes back to the zones of blood and desolation which we have waded through
to separate from Great Britain, we behold with manly indignation that our blood and treasure
have been wasted to establish a government in which the interest of the few is preferred to the
rights of the many. When we see a government so every way inferior to that we were born under,
proposed as the reward of our sufferings in an eight years calamitous war, our astonishment is
only equaled by our resentment. On the conduct of Virginia and New York, two important
States, the preservation of liberty in a great measure depends. The chief security of a
Confederacy of Republics was boldly disregarded, and the Confederation violated, by requiring 9
instead of 13 voices to alter the Constitution. But still the resistance of either of these States in
the present temper of America (for the late conduct of the party here [Maryland] must open the
eyes of the people in Massachusetts with respect to the fate of their amendment) will secure all
that we mean to contend for-the natural and unalienable rights of men in a constitutional manner.
At the distant appearance of danger to these, we took up arms in the late Revolution. And may
we never have cause to look back with regret on that period when connected with the Empire of
Great Britain, we were happy, secure and free.

Antifederalist No. 61 QUESTIONS AND COMMENTS ON THE
CONSTITUTIONAL PROVISIONS REGARDING THE
ELECTION OF CONGRESSMEN
. . . . It is well observed by Montesquieu, that in republican governments the forms of elections
are fundamental; and that it is an essential part of the social compact, to ascertain by whom, to
whom, when, and in what manner, suffrages are to be given. Wherever we find the regulation of
elections have not been carefully fixed by the constitution, or the principles of them, we
constantly see new legislatures modifying . . . [their] own form, and changing the spirit of the
government to answer partial purposes.
By the proposed plan it is -fixed, that the qualifications of the electors of the federal
representatives shall be the same as those of the electors of state representatives; though these
vary some in the several states the electors are fixed and designated.
The qualifications of the representatives are also fixed and designated, and no person under 25
years of age, not an inhabitant of the state, and not having been seven years a citizen of the
United States, can be elected. The clear inference is, that all persons 25 years of age, and
upwards, inhabitants of the state, and having been, at any period or periods, seven years citizens
of the United States, may be elected representatives. They have a right to be elected by the
constitution, and the electors have a right to choose them. This is fixing the federal
representation, as to the elected, on a very broad basis. It can be no objection to the elected, that
they are Christians, Pagans, Mahometans, or Jews; that they are of any color, rich or poor,
convict or not. Hence many men may be elected, who cannot be electors. Gentlemen who have
commented so largely upon the wisdom of the constitution, for excluding from being elected
young men under a certain age, would have done well to have recollected, that it positively
makes pagans, convicts, etc., eligible. The people make the constitution; they exclude a few
persons, by certain descriptions, from being elected, and all not thus excluded are clearly
admitted. Now a man 25 years old, an inhabitant of the state, and having been a citizen of the
states seven years, though afterwards convicted, may be elected, because not within any of the
excluding clauses; the same of a beggar, an absentee, etc.
The right of the electors, and eligibility of the elected, being fixed by the people, they cannot be
narrowed by the state legislatures, or congress. It is established, that a man being (among other
qualifications) an inhabitant of the state, shall be eligible. Now it would be narrowing the right of
the people to confine them in their choice to a man, an inhabitant of a particular county or district
in the state. Hence it follows, that neither the state legislatures nor congress can establish district
elections; that is, divide the state into districts, and confine the electors of each district to the
choice of a man resident in it. If the electors could be thus limited in one respect, they might in
another be confined to choose a man of a particular religion, of certain property, etc., and thereby
half of the persons made eligible by the constitution be excluded. All laws, therefore, for
regulating elections must be made on the broad basis of the constitution.
Next, we may observe, that representatives are to be chosen by the people of the state. What is a
choice by the people of the state? If each given district in it choose one, will that be a choice
within the meaning of the constitution? Must the choice be by plurality of votes, or a majority?
In connection with these questions, we must take the 4th Sect., Art I., where it is said the state
legislatures shall prescribe the times, places, and manner of holding elections; but congress may
make or alter such regulations. By this clause, I suppose, the electors of different towns and
districts in the state may be assembled in different places, to give their votes; but when so
assembled, by another clause they cannot, by congress or the state legislatures, be restrained
from giving their votes for any man an inhabitant of the state, and qualified as to age, and having
been a citizen the time required. But I see nothing in the constitution by which to decide, whether
the choice shall be by a plurality or a majority of votes. This, in my mind, is by far the most
important question in the business of elections. When we say a representative shall be chosen by
the people, it seems to imply that he shall be chosen by a majority of them; but states which use
the same phraseology in this respect, practice both ways. I believe a majority of the states choose
by pluralities; and, I think it probable, that the federal house of representatives will decide that a
choice of its members by pluralities is constitutional. A man who has the most votes is chosen in
Great Britain. It is this, among other things, that gives every man fair play in the game of
influence and corruption. I believe that not much stress was laid upon the objection that congress
may assemble the electors at some out of the way place. However, the advocates seem to think
they obtain a victory of no small glory and importance, when they can show, with some degree
of color, that the evil is rather a possibility than a probability. . .
It is easy to perceive that there is an essential difference between elections by pluralities and by
majorities, between choosing a man in a small or limited district, and choosing a number of men
promiscuously by the people of a large state. And while we are almost secure of judicious
unbiased elections by majorities in such districts, we have no security against deceptions,
influence and corruption in states or large districts in electing by pluralities. When a choice is
made by a plurality of votes, it is often made by a very small part of the electors, who attend and
give their votes; when by a majority, never by so few as one half of them. The partialities and
improprieties attending the former mode may be illustrated by a case that lately happened in one
of the middle states. Several representatives were to be chosen by a large number of inhabitants
compactly settled, among whom there were four or five thousand voters. Previous to the time of
election a number of lists of candidates were published, to divide and distract the voters in
general. About half a dozen men of some influence, who had a favorite list to carry, met several
times, fixed their list, and agreed to hand it about among all who could probably be induced to
adopt it, and to circulate the other lists among their opponents, to divide them. The poll was
opened, and several hundred electors, suspecting nothing, attended and put in their votes. The list
of the half dozen was carried, and men were found to be chosen, some of whom were very
disagreeable to a large majority of the electors. Though several hundred electors voted, men on
that list were chosen who had only 45, 43, 44, etc., votes each. They had a plurality, that is, more
than any other persons. The votes generally were scattered, and those who made even a feeble
combination succeeded in placing highest upon the list several very unthought of and very
unpopular men. This evil never could have happened in a town where all the voters meet in one
place, and consider no man as elected unless he have a majority, or more than half of all the
votes. Clear it is, that the man on whom thus but a small part of the votes are bestowed cannot
possess the confidence of the people, or have any considerable degree of influence over them.
But as partial, as liable to secret influence, and corruption as the choice by pluralities may be, I
think, we cannot avoid it, without essentially increasing the federal representation, and adopting
the principle of district elections. There is but one case in which the choice by the majority is
practicable, and that is, where districts are formed of such moderate extent that the electors in
each can conveniently meet in one place, and at one time, and proceed to the choice of a
representative; when, if no man have a majority or more than half of all the votes the first time,
the voters may examine the characters of those brought forward, accommodate, and proceed to
repeat their votes till some one shall have that majority. This, I believe, cannot be a case under
the constitution proposed in its present form. To explain my ideas, take Massachusetts, for
instance. She is entitled to eight representatives. She has 370,000 inhabitants, about 46,000 to
one representative. If the elections be so held that the electors throughout the state meet in their
several towns or places, and each elector puts in his vote for eight representatives, the votes of
the electors will ninety-nine times in a hundred, be so scattered that on collecting the votes from
the several towns or places, no men will be found, each of whom have a majority of the votes,
and therefore the election will not be made …. I might add many other observations to evince the
superiority and solid advantages of proper district elections, and a choice by a majority, and to
prove that many evils attend the contrary practice. These evils we must encounter as the
constitution now stands. I see no way to fix elections on a proper footing, and to render tolerably
equal and secure the federal representation, but by increasing the representation, so as to have
one representative for each district in which the electors may conveniently meet in one place, and
at one time, and choose by a majority. Perhaps this might be effected pretty generally, by fixing
one representative for each twelve thousand inhabitants; dividing, or fixing the principles for
dividing the states into proper districts; and directing the electors of each district to the choice,
by a majority, of some men having a permanent interest and residence in it. I speak of a
representation tolerably equal, etc., because I am still of opinion, that it is impracticable in this
extensive country to have a federal representation sufficiently democratic, or substantially drawn
from the body of the people. The principles just mentioned may be the best practical ones we can
expect to establish. By thus increasing the representation we not only make it more democratical
and secure, strengthen the confidence of the people in it, and thereby render it more nervous and
energetic; but it will also enable the people essentially to change, for the better, the principles
and forms of elections. To provide for the people’s wandering throughout the state for a
representative may sometimes enable them to elect a more brilliant or an abler man, than by
confining them to districts; but generally this latitude will be used to pernicious purposes,
especially connected with the choice by plurality-when a man in the remote part of the state,
perhaps obnoxious at home, but ambitious and intriguing, may be chosen to represent the people
in another part of the state far distant, and by a small part of them, or by a faction, or by a
combination of some particular description of men among them. This has been long the case in
Great Britain; it is the case in several states; nor do I think that such pernicious practices will be
merely possible in our federal concerns, but highly probable. By establishing district elections,
we exclude none of the best men from being elected; and we fix what, in my mind, is of far more
importance than brilliant talents-I mean a sameness, as to residence and interests, between the
representative and his constituents. And by the election by a majority, he is sure to be the man,
the choice of more than half of them….
THE FEDERAL FARMER
Antifederalist No. 62 ON THE ORGANIZATION AND
POWERS OF THE SENATE (PART I)
Taken from the 16th essay of “Brutus” from The New York Journal of April 10, 1788.
The following things may be observed with respect to the constitution of the Senate.
1st. They are to be elected by the legislatures of the States and not by the people, and each State
is to be represented by an equal number.
2d. They are to serve for six years, except that one third of those first chosen are to go out of
office at the expiration of two years, one third at the expiration of four years, and one third at the
expiration of six years, after which this rotation is to be preserved, but still every member will
serve for the term of six years.
3d. If vacancies happen by resignation or otherwise, during the recess of the legislature of any
State, the executive is authorised to make temporary appointments until the next meeting of the
legislature.
4. No person can be a senator who had not arrived to the age of thirty years, been nine years a
citizen of the United States, and who is not at the time he is elected an inhabitant of the State for
which he is elected.
The apportionment of members of the Senate among the States is not according to numbers, or
the importance of the States, but is equal. This, on the plan of a consolidated government, is
unequal and improper; but is proper on the system of confederation – on this principle I approve
of it. It is indeed the only feature of any importance in the constitution of a confederated
government. It was obtained after a vigorous struggle of that part of the Convention who were in
favor of preserving the state governments. It is to be regretted that they were not able to have
infused other principles into the plan, to have secured the government of the respective states,
and to have marked with sufficient precision the line between them and the general government.
The term for which the senate are to be chosen, is in my judgment too long, and no provision
being made for a rotation will, I conceive, be of dangerous consequence.
It is difficult to fix the precise period for which the senate should be chosen. It is a matter of
opinion, and our sentiments on the matter must be formed, by attending to certain principles.
Some of the duties which are to be performed by the Senate, seem evidently to point out the
propriety of their term of service being extended beyond the period of that of the assembly.
Besides, as they are designed to represent the aristocracy of the country, it seems fit they should
possess more stability, and so continue a longer period then that branch who represent the
democracy. The business of making treaties and some other which it will be proper to commit to
the senate, requires that they should have experience, and therefore that they should remain some
time in office to acquire it. But still it is of equal importance that they should not be so long in
office as to be likely to forget the hand that formed them, or be insensible of their interests. Men
long in office are very apt to feel themselves independent; to form and pursue interests separate
from those who appointed them. And this is more likely to be the case with the senate, as they
will for the most part of the time be absent from the state they represent, and associate with such
company as will possess very little of the feelings of the middling class of people. For it is to be
remembered that there is to be a federal city, and the inhabitants of it will be the great and the
mighty of the earth. For these reasons I would shorten the term of their service to four years. Six
years is a long period for a man to be absent from his home; it would have a tendency to wean
him from his constituents.
A rotation in the senate would also in my opinion be of great use. It is probable that senators
once chosen for a state will, as the system now stands, continue in office for life. The office will
be honorable if not lucrative. The persons who occupy it will probably wish to continue in it, and
therefore use all their influence and that of their friends to continue in office. Their friends will
be numerous and powerful, for they will have it in their power to confer great favors-, besides it
will before long be considered as disgraceful not to be reelected. It will therefore be considered
as a matter of delicacy to the character of the senator not to return him again. Everybody
acquainted with public affairs knows how difficult it is to remove from office a person who is
long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of
competent ability procures it. To prevent this inconvenience I conceive it would be wise to
determine, that a senator should not be eligible after he had served for the period assigned by the
constitution for a certain number of years; perhaps three would be sufficient. A further benefit
would be derived from such an arrangement; it would give opportunity to bring forward a greater
number of men to serve their country, and would return those, who had served, to their state, and
afford them the advantage of becoming better acquainted with the condition and politics of their
constituents. It further appears to me proper, that the legislatures should retain the right which
they now hold under the confederation, of recalling their members. It seems an evident dictate of
reason that when a person authorises another to do a piece of business for him, he should retain
the power to displace him, when he does not conduct according to his pleasure. This power in the
state legislatures, under confederation, has not been exercised to the injury of the government,
nor do I see any danger of its being so exercised under the new system. It may operate much to
the public benefit.
These brief remarks are all I shall make on the organization of the senate. The powers with
which they are invested will require a more minute investigation.
This body will possess a strange mixture of legislative, executive, and judicial powers, which in
my opinion will in some cases clash with each other.
1. They are one branch of the legislature, and in this respect will possess equal powers in all
cases with the house of representatives; for I consider the clause which gives the house of
representatives the right of originating bills for raising a revenue as merely nominal, seeing the
senate . . . [has the power] to propose or concur with amendments.
2. They are a branch of the executive in the appointment of ambassadors and public ministers,
and in the appointment of all other officers, not otherwise provided for. Whether the forming of
treaties, in which they are joined with the president, appertains to the legislative or the executive
part of the government, or to neither, is not material.
3. They are a part of the judicial, for they form the court of impeachments.
It has been a long established maxim, that the legislative, executive and judicial departments in
government should be kept distinct. It is said, I know, that this cannot be done. And therefore
that this maxim is not just, or at least that it should only extend to certain leading features in a
government. I admit that this distinction cannot be perfectly preserved. In a due balanced
government, it is perhaps absolutely necessary to give the executive qualified legislative powers,
and the legislative or a branch of them judicial powers in the last resort. It may possibly also, in
some special cases, be advisable to associate the legislature, or a branch of it, with the executive,
in the exercise of acts of great national importance. But still the maxim is a good one, and a
separation of these powers should be sought as far as is practicable. I can scarcely imagine that
any of the advocates of the system will pretend, that it was necessary to accumulate all these
powers in the senate. There is a propriety in the senate’s possessing legislative powers. This is
the principal end which should be held in view in their appointment. I need not here repeat what
has so often and ably been advanced on the subject of a division of the legislative power into two
branches. The arguments in favor of it I think conclusive. But I think it equally evident, that a
branch of the legislature should not be invested with the power of appointing officers. This
power in the senate is very improperly lodged for a number of reasons – These shall be detailed
in a future number.
BRUTUS
Antifederalist No. 63 ON THE ORGANIZATION AND
POWERS OF THE SENATE (PART II)
. . . . The senate is an assembly of 26 members, two from each state; though the senators are
apportioned on the federal plan, they will vote individually. They represent the states, as bodies
politic, sovereign to certain purposes. The states being sovereign and independent, are all
considered equal, each with the other in the senate. In this we are governed solely by the ideal
equalities of sovereignties; the federal and state governments forming one whole, and the state
governments an essential part, which ought always to be kept distinctly in view, and preserved. I
feel more disposed, on reflection, to acquiesce in making them the basis of the senate, and
thereby to make it the interest and duty of the senators to preserve distinct, and to perpetuate the
respective, sovereignties they shall represent. . . .
The senate, as a legislative branch, is not large, but as an executive branch quite too numerous. It
is not to be presumed that we can form a genuine senatorial branch in the United States, a real
representation of the aristocracy and balance in the legislature, any more than we can form a
genuine representation of the people. Could we separate the aristocratical and democratical
interest, compose the senate of the former, and the house of assembly of the latter, they are too
unequal in the United States to produce a balance. Form them on pure principles, and leave each
to be supported by its real weight and connections, the senate would be feeble and the house
powerful. I say, on pure principles; because I make a distinction between a senate that derives its
weight and influence from a pure source-its numbers and wisdom, its extensive property, its
extensive and permanent connections -and a senate composed of a few men, possessing small
property, and small and unstable connections, that derives its weight and influence from a
corrupt or pernicious source: that is, merely from the power given it by the constitution and laws,
to dispose of the public offices, and the annexed emoluments, and by those means to interest
officers, and the hungry expectants of offices, in support of its measures. I wish the proposed
senate may not partake too much of the latter description.
To produce a balance and checks, the constitution proposes two branches in the legislature. But
they are so formed, that the members of both must generally be the same kind of men-men
having similar interests and views, feelings and connections – men of the same grade in society,
and who associate on all, occasions (probably, if there be any difference, the senators will be the
most democratic.) Senators and representatives thus circumstanced, as men, though convened in
two rooms to make laws, must be governed generally by the same motives and views, and
therefore pursue the same system of politics. The partitions between the two branches will be
merely those of the building in which they fit. There will not be found in them any of those
genuine balances and checks, among the real different interests, and efforts of the several classes
of men in the community we aim at. Nor can any such balances and checks be formed in the
present condition of the United States in any considerable degree of perfection. . .
Though I conclude the senators and representatives will not form in the legislature those balances
and checks which correspond with the actual state of the people, yet I approve of two branches,
because we may notwithstanding derive several advantages from them. The senate, from the
mode of its appointment, will probably be influenced to support the state governments; and, from
its periods of service will produce stability in legislation, while frequent elections may take place
in the other branch. There is generally a degree of competition between two assemblies even
composed of the same kind of men; and by this, and by means of every law passing a revision in
the second branch, caution, coolness, and deliberation are produced in the business of making
laws. By means of a democratic branch we may particularly secure personal liberty; and by
means of a senatorial branch we may particularly protect property. By the division, the house
becomes the proper body to impeach all officers for misconduct in office, and the senate the
proper court to try them; and in a country where limited powers must be lodged in the first
magistrate, the senate, perhaps, may be the most proper body to be found to have a negative upon
him in making treaties, and managing foreign affairs.
Though I agree the federal senate, in the form proposed, may be useful to many purposes, and
that it is not very necessary to alter the organization, modes of appointment, and powers of it in
several respects; yet, without alterations in others, I sincerely believe it will, in a very few years,
become the source of the greatest evils. Some of these alterations, I conceive, to be absolutely
necessary and some of them at least advisable.
1. By the confederation the members of congress are chosen annually. By Art. 1. Sect. 2. of the
constitution, the senators shall be chosen for six years. As the period of service must be, in a
considerable degree, matter of opinion on this head, I shall only make a few observations, to
explain why I think it more advisable to limit it to three or four years.
The people of this country have not been accustomed to so long appointments in their state
governments. They have generally adopted annual elections. The members of the present
congress are chosen yearly, who, from the nature and multiplicity of their business, ought to be
chosen for longer periods than the federal senators. Men six years in office absolutely contract
callous habits, and cease, in too great a degree, to feel their dependence, and for the condition of
their constituents. Senators continued in offices three or four years, will be in them longer than
any popular erroneous opinions will probably continue to actuate their electors. Men appointed
for three or four years will generally be long enough in office to give stability, and amply to
acquire political information. By a change of legislators, as often as circumstances will permit,
political knowledge is diffused more extensively among the people, and the attention of the
electors and elected more constantly kept alive-circumstances of infinite importance in a free
country. Other reasons might be added, but my subject is too extensive to admit of my dwelling
upon less material points.
2. When the confederation was formed, it was considered essentially necessary that the members
of congress should at any time be recalled by their respective states, when the states should see
fit, and others be sent in their room. I do not think it is less necessary that this principle should be
extended to the members of congress under the new constitution, and especially to the senators. I
have had occasion several times to observe, that let us form a federal constitution as extensively,
and on the best principles in our power, we must, after all, trust a vast deal to a few men, who,
far removed from their constituents, will administer the federal government. There is but little
danger these men will feel too great a degree of dependence. The necessary and important object
to be attended to, is to make them feel dependent enough. Men elected for several years, several
hundred miles distant from their states, possessed of very extensive powers, and the means of
paying themselves, will not, probably, be oppressed with a sense of dependence and
responsibility.
The senators will represent sovereignties, which generally have, and always ought to retain, the
power of recalling their agents. The principle of responsibility is strongly felt in men who are
liable to be recalled and censured for their misconduct; and, if we may judge from experience,
the latter will not abuse the power of recalling their members; to possess it will at least be a
valuable check. It is in the nature of all delegated power, that the constituents should retain the
right to judge concerning the conduct of their representatives. They must exercise the power, and
their decision itself, their approving or disapproving that conduct implies a right, a power to
continue in office, or to remove from it. But whenever the substitute acts under a constitution,
then it becomes necessary that the power of recalling him be expressed. The reasons for lodging
a power to recall are stronger, as they respect the senate, than as they respect the representatives.
The latter will be more frequently elected, and changed of course, and being chosen by the
people at large, it would be more difficult for the people than for the legislatures to take the
necessary measures for recalling. But even the people, if the powers will be more beneficial to
them than injurious, ought to possess it. The people are not apt to wrong a man who is steady and
true to their interests. They may for a while be misled by party representations, and leave a good
man out of office unheard; but every recall supposes a deliberate decision, and a fair hearing.
And no man who believes his conduct proper, and the result of honest views, will be the less
useful in his public character on account of the examination his actions may be liable to. A man
conscious of the contrary conduct ought clearly to be restrained by the apprehensions of a trial. I
repeat it, it is interested combinations and factions we are particularly to guard against in the
federal government, and all the rational means that can be put into the hands of the people to
prevent them ought to be provided and furnished for them. Where there is a power to recall,
trusty sentinels among the people, or in the state legislatures will have a fair opportunity to
become useful. If the members in congress from the states join in such combinations, or favor
them, or pursue a pernicious line of conduct, the most attentive among the people or in the state
legislatures may formally charge them before their constituents. The very apprehensions of such
constitutional charge may prevent many of the evils mentioned; and the recalling the members of
a single state, a single senator or representative, may often prevent many more. Nor do 1, at
present, discover any danger in such proceedings, as every man who shall move for a recall will
put his reputation at stake, to show he has reasonable grounds for his motion. It is not probable
such motions will be made unless there be good apparent grounds for succeeding. Nor can the
charge or motion be anything more than the attack of an individual or individuals unless a
majority of the constituents shall see cause to go into the inquiry. Further, the circumstances of
such a power being lodged in the constituents will tend continually to keep up their watchfulness,
as well as the attention and dependence of the federal senators and representatives.
3. By the confederation it is provided, that no delegate shall serve more than three years in any
term of six years; and thus, by the forms of the government a rotation of members is produced. A
like principle has been adopted in some of the state governments, and also in some ancient and
modern republics. Whether this exclusion of a man for a given period, after he shall have served
a given time, ought to be ingrafted into a constitution or not is a question, the proper decision [of
which] materially depends upon the leading features of the government. Some governments are
so formed as to produce a sufficient fluctuation and change of members; in the ordinary course
of elections proper numbers of new members are from time to time brought into the legislature,
and a proportionate number of old ones go out, mix, and become diffused among the people.
This is the case with all numerous representative legislatures, the members of which are
frequently elected, and constantly within the view of their constituents. This is the case with our
state governments, and in them a constitutional rotation is unimportant. But in a government
consisting of but a few members, elected for long periods, and far removed from the observation
of the people, but few changes in the ordinary course of elections take place among the members.
They become in some measure a fixed body, and often inattentive to the public good, callous,
selfish, and the fountain of corruption. To prevent these evils, and to force a principle of pure
animation into the federal government, which will be formed much in this last manner
mentioned, and to produce attention, activity, and a diffusion of knowledge in the community,
we ought to establish among others the principle of rotation. Even good men in office, in time,
imperceptibly lose sight of the people, and gradually fall into measures prejudicial to them. It is
only a rotation among the members of the federal legislature I shall contend for. Judges and
officers at the heads of the judicial and executive departments are in a very different situation.
Their offices and duties require the information and studies of many years for performing them
in a manner advantageous to the people. These judges and officers must apply their whole time
to the detail business of their offices, and depend on them for their support. Then, they always
act under masters or superiors, and may be removed from office for misconduct. They pursue a
certain round of executive business; their offices must be in all societies confined to a few men,
because but few can become qualified to fill them. And were they, by annual appointments, open
to the people at large, they are offices of such a nature as to be of no service to them. They must
leave these offices in the possession of the few individuals qualified to fill them, or have them
badly filled. In the judicial and executive departments also, the body of the people possess a
large share of power and influence, as jurors and subordinate officers, among whom there are
many and frequent rotations. But in every free country the legislatures are all on a level, and
legislation becomes partial whenever, in practice, it rests for any considerable time in a few
hands. It is the true republican principle to diffuse the power of making the laws among the
people and so to modify the forms of the government as to draw in turn the well informed of
every class into the legislature. To determine the propriety or impropriety of this rotation, we
must take the inconveniencies as well as the advantages attending it into view. On the one hand
by this rotation, we may sometimes exclude good men from being elected. On the other hand, we
guard against those pernicious connections, which usually grow up among men left to continue
long periods in office. We increase the number of those who make the laws and return to their
constituents; and thereby spread information, and preserve a spirit of activity and investigation
among the people. Hence a balance of interests and exertions are preserved, and the ruinous
measures of actions rendered more impracticable. I would not urge the principle of rotation, if I
believed the consequence would be an uninformed federal legislature; but I have no
apprehension of this in this enlightened country. The members of congress, at any one time, must
be but very few compared with the respectable well informed men in the United States; and I
have no idea there will be any want of such men for members of congress, though by a principle
of rotation the constitution should exclude from being elected for two years those federal
legislators, who may have served the four years immediately preceding, or any four years in the
six preceding years. If we may judge from experience and fair calculations, this principle will
never operate to exclude at any one period a fifteenth part even of those men who have been
members of congress. Though no man can sit in congress by the confederation more than three
years in any term of six years, yet not more than three, four, or five men in any one state have
been made ineligible at any one period. And if a good man happens to be excluded by this
rotation, it is only for a short time. All things considered, the inconveniencies of the principle
must be very inconsiderable compared with the many advantages of it. It will generally be
expedient for a man who has served four years in congress to return home, mix with the people,
and reside some time with them. This will tend to reinstate him in the interests, feelings, and
views similar to theirs, and thereby confirm in him the essential qualifications of a legislator.
Even in point of information, it may be observed, the useful information of legislators is not
acquired merely in studies in offices, and in meeting to make laws from day to day. They must
learn the actual situation of the people by being among them, and when they have made laws,
return home and observe how they operate. Thus occasionally to be among the people, is not
only necessary to prevent or banish the callous habits and self-interested views of office in
legislators, but to afford them necessary information, and to render them useful. Another
valuable end is answered by it, sympathy, and the means of communication between them and
their constituents, is substantially promoted. So that on every principle legislators, at certain
periods, ought to live among their constituents. Some men of science are undoubtedly necessary
in every legislature; but the knowledge, generally, necessary for men who make laws, is a
knowledge of the common concerns, and particular circumstances of the people. In a republican
government seats in the legislature are highly honorable. I believe but few do, and surely none
ought to, consider them as places of profit and permanent support. Were the people always
properly attentive, they would, at proper periods, call their lawmakers home, by sending others in
their room. But this is not often the case; and therefore, in making constitutions, when the people
are attentive, they ought cautiously to provide for those benefits, those advantageous changes in
the administration of their affairs, which they are often apt to be inattentive to in practice. On the
whole, to guard against the evils, and to secure the advantages I have mentioned, with the
greatest degree of certainty, we ought clearly in my opinion, to increase the federal
representation, to secure elections on proper principles, to establish a right to recall members,
and a rotation among them.
THE FEDERAL FARMER

Anti-Federalist No. 64

ON THE ORGANIZATION AND POWERS OF THE SENATE (PART III)

Taken from the New York Journal, Nov. 22, 1787 by “CINCINNATUS” It appears to have been
written in answer to James Wilson’s Antifederalist # 12)
I come now, sir, to the most exceptionable part of the Constitution-the Senate. In this, as in every
other part, you [James Wilson of Pennsylvania] are in the line of your profession Law], and on
that ground assure your fellow citizens, that-“perhaps there never was a charge made with less
reason, than that which predicts the institution of a baneful aristocracy in the Federal Senate.”
And yet your conscience smote you, sir, at the beginning, and compelled you to prefix a perhaps
to this strange assertion. The senate, you say, branches into two characters-the one legislative
and the other executive. This phraseology is quaint, and the position does not state the whole
truth. I am very sorry, sir, to be so often obliged to reprehend the suppression of information at
the moment that you stood forth to instruct your fellow citizens, in what they were supposed not
to understand. In this character, you should have abandoned your professional line, and told
them, not only the truth, but the whole truth. The whole truth then is, that the same body, called
the senate, is vested with legislative, executive and judicial powers. The two first you
acknowledge; the last is conveyed in these words, sec. 3d.: “The Senate shall have the sole power
to try all impeachments.” On this point then we are to come to issue-whether a senate so
constituted is likely to produce a baneful aristocracy, which will swallow up the democratic
rights and liberties of the nation. To judge on this question, it is proper to examine minutely into
the constitution and powers of the senate; and we shall then see with what anxious and subtle
cunning it is calculated for the proposed purpose. 1st. It is removed from the people, being
chosen by the legislatures-and exactly in the ratio of their removal from the people do
aristocratic principles constantly infect the minds of man. 2nd. They endure, two thirds for four,
and one third for six years, and in proportion to the duration of power, the aristocratic exercise of
it and attempts to extend it, are invariably observed to increase. 3rd. From the union of the
executive with the legislative functions, they must necessarily be longer together, or rather
constantly assembled; and in proportion to their continuance together, they will be able to form
effectual schemes for extending their own power, and reducing that of the democratic branch. If
any one would wish to see this more fully illustrated, let him turn to the history of the Decemviri
in Rome. 4th. Their advice and consent being necessary to the appointment of all the great
officers of state, both at home and abroad, will enable them to win over any opponents to their
measures in the house of representatives, and give them the influence which, we see,
accompanies this power in England; and which, from the nature of man, must follow it every
where. 5th. The sole power of impeachment being vested in them, they have it in their power to
control the representative in this democratic right; to screen from punishment, or rather from
conviction, all high offenders, being their creatures, and to keep in awe all opponents to their
power in high office. 6th. The union established between them and the vice president, who is
made one of the corps, and will therefore be highly animated with the aristocratic spirit of it,
furnishes them a powerful shield against popular suspicion and inquiry, he being the second man
in the United States who stands highest in the confidence and estimation of the people. And
lastly, the right of altering or amending money-bills, is a high additional power given them as a
branch of the legislature, which their analogous branch, in the English parliament, could never
obtain because it has been guarded by the representatives of the people there, with the most
strenuous solicitude as one of the vital principles of democratic liberty.
Is a body so vested with means to soften and seduce-so armed with power to screen or to
condemn-so fortified against suspicion and inquiry-so largely trusted with legislative powers-so
independent of and removed from the people-so tempted to abuse and extend these powers-is this
a body which freemen ought ever to create, or which freemen can ever endure? Or is it not a
monster in the political creation, which we ought to regard with horror? Shall we thus forget our
own fetters? Shall we set up the idol, before which we shall soon be obliged, however
reluctantly, to bow? Shall we consent to see a proud aristocracy erect his domineering crest in
triumph over our prostrate liberties?
But we shall yet see more clearly, how highly favored this senate has been, by taking a similar
view of the representative body. This body is the true representative of the democratic part of the
system; the shield and defense of the people. . . . Its transcendent and incommunicable power of
impeachment-that high source of its dignity and control-in which alone the majesty of the people
feels his sceptre, and bears aloft his fasces-is rendered ineffectual, by its being triable before its
rival branch, the senate, the patron and prompter of the measures against which it is to sit in
judgment. It is therefore most manifest, that from the very nature of the constitution the right of
impeachment apparently given, is really rendered ineffectual. And this is contrived with so much
art, that to discover it you must bring together various and distant parts of the constitution, or it
will not strike the examiner, that the same body that advises the executive measures of
government which are usually the subject of impeachment, are the sole judges on such
impeachments. They must therefore be both party and judge, and must condemn those who have
executed what they advised. Could such a monstrous absurdity have escaped men who were not
determined, at all events, to vest all power in this aristocratic body? Is it not plain, that the senate
is to be exalted by the humiliation of the democracy? A democracy which, thus bereft of its
powers, and shorn of its strength, will stand a melancholy monument of popular impotence. . . .
“When the legislative and executive powers are united in the same person, or in the same corps,”
[says Montesquieu] “there can be no liberty. Because, it may be feared, that the same monarch or
senate will make tyrannical laws, that they may execute them tyrannically.” I am aware that this
great man is speaking of a senate being the whole legislature; whereas the one before us is but a
branch of the proposed legislature. But still the reason applies, inasmuch as the legislative power
of the senate will enable it to negative all bills that are meant to control the executive; and from
being secure of preventing any abridgment, they can watch every pliant hour of the
representative body to promote an enlargement of the executive powers. One thing at least is
certain, that by making this branch of the legislature participant in the executive, you not only
prevent the legislature from being a check upon the executive, but you inevitably prevent its
being checked or controlled by the other branch.
To the authority of Montesquieu, I shall add that of Mr. De Lolme, whose disquisition on
government is allowed to be deep, solid, and ingenious. . . . “It is not only necessary,” [says he]
“to take from the legislature the executive power which would exempt them from the laws; but
they should not have even a hope of being ever able to arrogate to themselves that power.” To
remove this hope from their expectation, it would have been proper, not only to have previously
laid down, in a declaration of rights, that these powers should be forever separate and
incommunicable; but the frame of the proposed constitution should have had that separation
religiously in view, through all its parts. It is manifest this was not the object of its framers; but,
that on the contrary there is a studied mixture of them in the senate as necessary to erect it into
that potent aristocracy which it must infallibly produce. In pursuit of this daring object, than
which no greater calamity can be brought upon the people, another egregious error in
constitutional principles is committed. I mean that of dividing the executive powers between the
senate and president. Unless more harmony and less ambition should exist between these two
executives than ever yet existed between men in power, or than can exist while human nature is
as it is, this absurd division must be productive of constant contentions for the lead, must clog
the execution of government to a mischievous, and sometimes to a disgraceful degree; and if
they should unhappily harmonize in the same objects of ambition, their number and their
combined power would preclude all fear of that responsibility, which is one of the great
securities of good, and restraints on bad governments. Upon these principles Mr. DeLolme has
foreseen that “the effect of a division of the executive power is the establishment of absolute
power in one of continual contention;” he therefore lays it down, as a general rule . . . “for the
tranquility of the state it is necessary that the executive power should be in one.” I will add, that
this singlehood of the executive is indispensably necessary to effective execution, as well as to
the responsibility and rectitude of him to whom it is entrusted.
By this time I hope it is evident from reason and authority, that in the constitution of the senate
there is much cunning and little wisdom; that we have much to fear from it, and little to hope,
and then it must necessarily produce a baneful aristocracy, by which the democratic rights of the
people will be overwhelmed.
It was probably upon this principle that a member of the convention, of high and unexceeded
reputation for wisdom and integrity, is said to have emphatically declared, that he would sooner
lose his right hand, than put his name to such a constitution.
CINCINNATUS
Antifederalist No. 65 ON THE ORGANIZATION AND
POWERS OF THE SENATE (PART IV)
(by Gilbert Livingston and John Lansing delivered on June 24, 1788 to the New York ratifying
convention)
Mr. G[ilbert] LIVINGSTON rose, and addressed the chair.
He, in the first place, considered the importance of the Senate as a branch of the legislature, in
three points of view:-
First, they would possess legislative powers coextensive with those of the House of
Representatives except with respect to originating revenue laws; which, however, they would
have power to reject or amend, as in the case of other bills. Secondly, they would have an
importance, even exceeding that of the representative house, as they would be composed of a
smaller number, and possess more firmness and system. Thirdly, their consequence and dignity
would still further transcend those of the other branch, from their longer continuance in office.
These powers, Mr. Livingston contended, rendered the Senate a dangerous body.
He went on, in the second place, to enumerate and animadvert on the powers with which they
were clothed in their judicial capacity, and in their capacity of council to the President, and in the
forming of treaties. In the last place, as if too much power could not be given to this body, they
were made, he said, a council of appointment, by whom ambassadors and other officers of state
were to be appointed. These are the powers, continued he, which are vested in this small body of
twenty-six men; in some cases, to be exercised by a bare quorum, which is fourteen; a majority
of which number, again, is eight. What are the checks provided to balance this great mass of
power? Our present Congress cannot serve longer than three years in six: they are at any time
subject to recall. These and other checks were considered as necessary at a period which I choose
to honor with the name of virtuous. Sir, I venerate the spirit with which every thing was done at
the trying time in which the Confederation was formed. America had then a sufficiency of this
virtue to resolve to resist perhaps the first nation in the universe, even unto bloodshed. What was
her aim? Equal liberty and safety. What ideas had she of this equal liberty? Read them in her
Articles of Confederation. True it is, sir, there are some powers wanted to make this glorious
compact complete. But, sir, let us be cautious that we do not err more on the other hand, by
giving power too profusely, when, perhaps, it will be too late to recall it. Consider, sir, the great
influence which this body, armed at all points, will have. What will be the effect of this?
Probably a security of their reelection, as long as they please. Indeed, in my view, it will amount
nearly to an appointment for life. What will be their situation in a federal town? Hallowed
ground! Nothing so unclean as state laws to enter there, surrounded, as they will be, by an
impenetrable wall of adamant and gold, the wealth of the whole country flowing into it. [Here a
member, who did not fully understand, called out to know what WALL the gentleman meant; on
which be turned, and replied, “A wall of gold-of adamant, which will flow in from all parts of the
continent.” At which flowing metaphor, a great laugh in the house.] The gentleman continued:
Their attention to their various business will probably require their constant attendance. In this
Eden will they reside with their families, distant from the observation of the people. In such a
situation, men are apt to forget their dependence, lose their sympathy, and contract selfish habits.
Factions are apt to be formed, if the body becomes permanent. The senators will associate only
with men of their own class, and thus become strangers to the condition of the common people.
They should not only return, and be obliged to live with the people, but return to their former
rank of citizenship, both to revive their sense of dependence, and to gain a knowledge of the
country. This will afford opportunity to bring forward the genius and information of the states,
and will be a stimulus to acquire political abilities. It will be the means of diffusing a more
general knowledge of the measures and spirit of the administration. These things will confirm the
people’s confidence in government. When they see those who have been high in office residing
among them as private citizens, they will feel more forcibly that the government is of their own
choice. The members of this branch having the idea impressed on their minds, that they are soon
to return to the level whence the suffrages of the people raised them,-this good effect will follow:
they will consider their interests as the same with those of their constituents, and that they
legislate for themselves as well as others. They will not conceive themselves made to receive,
enjoy, and rule, nor the people solely to earn, pay, and submit.
Mr. Chairman, I have endeavored, with as much perspicuity and candor as I am master of,
shortly to state my objections to this clause. I would wish the committee to believe that they are
not raised for the sake of opposition, but that I am very sincere in my sentiments in this
important investigation. The Senate, as they are now constituted, have little or no check on them.
Indeed, sir, too much is put into their hands. When we come to that part of the system which
points out their powers, it will be the proper time to consider this subject more particularly.
I think, sir, we must relinquish the idea of safety under this government, if the time for services
is not further limited, and the power of recall [not] given to the state legislatures. I am
strengthened in my opinion by an observation made yesterday, by an honorable member from
New York, to this effect”that there should be no fear of corruption of the members in the House
of Representatives; especially as they are, in two years, to return to the body of the people.” I
therefore move that the committee adopt the following resolution, as an amendment to this
clause:-
“Resolved, That no person shall be eligible as a senator for more than six years in any term of
twelve years, and that it shall be in the power of the legislatures of the several states to recall
their senators, or either of them, and to elect others in their stead, to serve for the remainder of
the time for which such senator or senators, so recalled, were appointed.”
Hon. Mr. [John] LANSING. I beg the indulgence of the committee, while I offer some reasons in
support of the motion just made; in doing which, I shall confine myself to the point, and shall
hear with attention, and examine with candor, the objections which may be opposed to it. . .
Sir, I am informed by gentlemen who have been conversant in public affairs, and who have had
seats in Congress, that there have been, at different times, violent parties in that body-an evil that
a change of members has contributed, more than any other thing, to remedy. If, therefore, the
power of recall should be never exercised, if it should have no other force than that of a check to
the designs of the bad, and to destroy party spirit, certainly no harm, but much good, may result
from adopting the amendment. If my information be true, there have been parties in Congress
which would have continued to this day, if the members had not been removed. No
inconvenience can follow from placing the powers of the Senate on such a foundation as to make
them feel their dependence. It is only a check calculated to make them more attentive to the
objects for which they were appointed. Sir, I would ask, Is there no danger that the members of
the Senate will sacrifice the interest of their state to their own private views? Every man in the
United States ought to look with anxious concern to that body. Their number is so exceedingly
small, that they may easily feel their interests distinct from those of the community. This
smallness of number also renders them subject to a variety of accidents, that may be of the
highest disadvantage. If one of the members is sick, or if one or both are prevented occasionally
from attending, who are to take care of the interests of their state?
Sir, we have frequently observed that deputies have been appointed for certain purposes, who
have not punctually attended to them, when it was necessary. Their private concerns may often
require their presence at home. In what manner is this evil to be corrected? The amendment
provides a remedy. It is the only thing which can give the states a control over the Senate. It will
be said, there is a power in Congress to compel the attendance of absent members; but will the
members from the other states be solicitous to compel such attendance, except to answer some
particular view, or promote some interest of their own? If it be the object of the senators to
protect the sovereignty of their several states, and if, at any time, it be the design of the other
states to make encroachments on the sovereignty of any one state, will it be for their interest to
compel the members from this state to attend, in order to oppose and check them? This would be
strange policy indeed….
Sir, it is true there have been no instances of the success of corruption under the old
Confederation; and may not this be attributed to the power of recall, which has existed from its
first formation? It has operated effectually, though silently. It has never been exercised, because
no great occasion has offered. The power has by no means proved a discouragement to
individuals, in serving their country. A seat in Congress has always been considered a
distinguished honor, and a favorite object of ambition. I believe no public station has been
sought with more avidity. If this power has existed for so many years, and through so many
scenes of difficulty and danger, without being exerted, may it not be rationally presumed that it
never will be put in execution, unless the indispensable interest of a state shall require it? I am
perfectly convinced that, in many emergencies, mutual concessions are necessary and proper;
and that, in some instances, the smaller interests of the states should be sacrificed to great
national objects. But when a delegate makes such sacrifices as tend to political destruction or to
reduce sovereignty to subordination, his state ought to have the power of defeating his design,
and reverting to the people. It is observed, that the appropriation of money is not in the power of
the Senate alone; but, sir, the exercise of certain powers, which constitutionally and necessarily
involve the disposal of money, belongs to the Senate. They have, therefore, a right of disposing
of the property of the United States. If the Senate declare war, the lower house must furnish the
supplies.
It is further objected to this amendment, that it will restrain the people from choosing those who
are most deserving of their suffrages, and will thus be an abridgment of their rights. I cannot
suppose this last inference naturally follows. The rights of the people will be best supported by
checking, at a certain point, the current of popular favor, and preventing the establishment of an
influence which may leave to elections little more than the form of freedom. The Constitution of
this state says, that no man shall hold the office of sheriff or coroner beyond a certain period.
Does any one imagine that the rights of the people are infringed by this provision? The
gentlemen, in their reasoning on the subject of corruption, seem to set aside experience and to
consider the Americans as exempt from the common vices and frailties of human nature. It is
unnecessary to particularize the numerous ways in which public bodies are accessible to
corruption. The poison always finds a channel, and never wants an object. Scruples would be
impertinent arguments would be in vain, checks would be useless, if we were certain our rulers
would be good men; but for the virtuous government is not instituted. Its object is to restrain and
punish vice; and all free constitutions are for with two views-to deter the governed from crime,
and the governors from tyranny.
Antifederalist No. 66 From North Carolina
Mr. JOSEPH TAYLOR objected to the provision made for impeaching. He urged that there
could be no security from it, as the persons accused were triable by the Senate, who were a part
of the legislature themselves; that, while men were fallible, the senators were liable to errors,
especially in a case where they were concerned themselves. . . .
Mr. [Timothy] BLOODWORTH wished to be informed, whether this sole power of
impeachment, given to the House of Representatives, deprived the state of the power of
impeaching any of its members. . . .
Mr. JOSEPH TAYLOR. Mr. Chairman, the objection is very strong. If there be but one body to
try, where are we? If any tyranny or oppression should arise, how are those who perpetrated such
oppression to be tried and punished? By a tribunal consisting of the very men who assist in such
tyranny. Can any tribunal be found, in any community, who will give judgment against their own
actions? Is it the nature of man to decide against himself? I am obliged to the worthy member
from New Hanover for assisting me with objections. None can impeach but the representatives;
and the impeachments are to be determined by the senators, who are one of the branches of
power which we dread under this Constitution…. the words “sole power of impeachment” were
so general, and might admit of such a latitude of construction, as to extend to every legislative
member upon the continent, so as to preclude the representatives of the different states from
impeaching….
Mr. [William] PORTER wished to be informed, if every officer, who was a creature of that
Constitution, was to be tried by the Senate-whether such officers, and those who had complaints
against them, were to go from the extreme parts of the continent to the seat of government, to
adjust disputes. . . .
Mr. J. TAYLOR. Mr. Chairman, I conceive that, if this Constitution be adopted, we shall have a
large number of officers in North Carolina under the appointment of Congress. We shall
undoubtedly, for instance, have a great number of tax-gatherers. If any of these officers shall do
wrong, when we come to fundamental principles, we find that we have no way to punish them
but by going to Congress, at an immense distance, whither we must carry our witnesses. Every
gentlemen must see, in these cases, that oppressions will arise. I conceive that they cannot be
tried elsewhere. I consider that the Constitution will be explained by the word “sole.” If they did
not mean to retain a general power of impeaching, there was no occasion for saying the “sole
power.” I consider therefore that oppressions will arise. If I am oppressed, I must go to the House
of Representatives to complain. I consider that, when mankind are about to part with rights, they
ought only to part with those rights which they can with convenience relinquish, and not such as
must involve them in distresses….
I observe that, when these great men are met in Congress, in consequence of this power, they
will have the power of appointing all the officers of the United States. My experience in life
shows me that the friends of the members of the legislature will get the offices. These senators
and members of the House of Representatives will appoint their friends to all offices. These
officers will be great men, and they will have numerous deputies under them. The receivergeneral
of the taxes of North Carolina must be one of the greatest men in the country. Will he
come to me for his taxes? No. He will send his deputy, who will have special instructions to
oppress me. How am I to be redressed? I shall be told that I must go to Congress, to get him
impeached. This being the case, whom am I to impeach? A friend of the representatives of North
Carolina. For, unhappily for us, these men will have too much weight for us; they will have
friends in the government who will be inclined against us, and thus we may be oppressed with
impunity.
Antifederalist No. 67 VARIOUS FEARS CONCERNING THE
EXECUTIVE DEPARTMENT
From the “CATO” letters of George Clinton, taken from The New-York Journal of November 8,
1787.
I shall begin with observations on the executive branch of this new system; and though it is not
the first in order, as arranged therein, yet being the chief, is perhaps entitled by the rules of rank
to the first consideration. The executive power as described in the 2d article, consists of a
president and vice- president, who are to hold their offices during the term of four years; the
same article has marked the manner and time of their election, and established the qualifications
of the president; it also provides against the removal, death, or inability of the president and vicepresident
– regulates the salary of the president, delineates his duties and powers; and, lastly,
declares the causes for which the president and vice-president shall be removed from office.
Notwithstanding the great learning and abilities of the gentlemen who composed the convention,
it may be here remarked with deference, that the construction of the first paragraph of the first
section of the second article is vague and inexplicit, and leaves the mind in doubt as to the
election of a president and vice-president, after the expiration of the election for the first term of
four years; in every other case, the election of these great officers is expressly provided for; but
there is no explicit provision for their election which is to set this political machine in motion; no
certain and express terms as in your state constitution, that statedly once in every four years, and
as often as these offices shall become vacant, by expiration or otherwise, as is therein expressed,
an election shall be held as follows, etc.; this inexplicitness perhaps may lead to an establishment
for life.
It is remarked by Montesquieu, in treating of republics, that in all magistracies, the greatness of
the power must be compensated by the brevity of the duration, and that a longer time than a year
would be dangerous. It is, therefore, obvious to the least intelligent mind to account why great
power in the hands of a magistrate, and that power connected with considerable duration, may be
dangerous to the liberties of a republic. The deposit of vast trusts in the hands of a single
magistrate enables him in their exercise to create a numerous train of dependents. This tempts his
ambition, which in a republican magistrate is also remarked, to be pernicious, and the duration of
his office for any considerable time favors his views, gives him the means and time to perfect
and execute his designs; he therefore fancies that he may be great and glorious by oppressing his
fellow citizens, and raising himself to permanent grandeur on the ruins of his country. And here
it may be necessary to compare the vast and important powers of the president, together with his
continuance in office, with the foregoing doctrine-his eminent magisterial situation will attach
many adherents to him, and he will be surrounded by expectants and courtiers. His power of
nomination and influence on all appointments; the strong posts in each state comprised within his
superintendence, and garrisoned by troops under his direction; his control over the army, militia,
and navy; the unrestrained power of granting pardons for treason, which may be used to screen
from punishment those whom he had secretly instigated to commit the crime, and thereby
prevent a discovery of his own guilt; his duration in office for four years-these, and various other
principles evidently prove the truth of the position, that if the president is possessed of ambition,
he has power and time sufficient to ruin his country.
Though the president, during the sitting of the legislature, is assisted by the senate, yet he is
without a constitutional council in their recess. He will therefore be unsupported by proper
information and advice, and will generally be directed by minions and favorites, or a council of
state will grow out of the principal officers of the great departments, the most dangerous council
in a free country. . . . The language and the manners of this court will be what distinguishes them
from the rest of the community, not what assimilates them to it; and in being remarked for a
behavior that shows they are not meanly born, and in adulation to people of fortune and power.
The establishment of a vice-president is as unnecessary as it is dangerous. This officer, for want
of other employment, is made president of the senate, thereby blending the executive and
legislative powers, besides always giving to some one state, from which he is to come, an unjust
pre-eminence.
It is a maxim in republics that the representative of the people should be of their immediate
choice; but by the manner in which the president is chosen, he arrives to this office at the fourth
or fifth hand. Nor does the highest vote, in the way he is elected, determine the choice-for it is
only necessary that he should be taken from the highest of five, who may have a plurality of
votes. . . .
And wherein does this president, invested with his powers and prerogatives, essentially differ
from the king of Great Britain (save as to name, the creation of nobility, and some immaterial
incidents, the offspring of absurdity and locality)? The direct prerogatives of the president, as
springing from his political character, are among the following: It is necessary, in order to
distinguish him from the rest of the community, and enable him to keep, and maintain his court,
that the compensation for his services, or in other words, his revenue, should be such as to enable
him to appear with the splendor of a prince. He has the power of receiving ambassadors from,
and a great influence on their appointments to foreign courts; as also to make treaties, leagues,
and alliances with foreign states, assisted by the Senate, which when made becomes the supreme
law of land. He is a constituent part of the legislative power, for every bill which shall pass the
House of Representatives and Senate is to be presented to him for approbation. If he approves of
it he is to sign it, if he disapproves he is to return it with objections, which in many cases will
amount to a complete negative; and in this view he will have a great share in the power of
making peace, coining money, etc., and all the various objects of legislation, expressed or
implied in this Constitution. For though it may be asserted that the king of Great Britain has the
express power of making peace or war, yet he never thinks it prudent to do so without the advice
of his Parliament, from whom be is to derive his support -and therefore these powers, in both
president and king, are substantially the same. He is the generalissimo of the nation, and of
course has the command and control of the army, navy and militia; he is the general conservator
of the peace of the union-he may pardon all offenses, except in cases of impeachment, and the
principal fountain of all offices and employments. Will not the exercise of these powers therefore
tend either to the establishment of a vile and arbitrary aristocracy or monarchy? The safety of the
people in a republic depends on the share or proportion they have in the government; but
experience ought to teach you, that when a man is at the head of an elective government invested
with great powers, and interested in his re-election, in what circle appointments will be made; by
which means an imperfect aristocracy bordering on monarchy may be established. You must,
however, my countrymen, beware that the advocates of this new system do not deceive you by a
fallacious resemblance between it and your own state government [New York] which you so
much prize; and, if you examine, you will perceive that the chief magistrate of this state is your
immediate choice, controlled and checked by a just and full representation of the people,
divested of the prerogative of influencing war and peace, making treaties, receiving and sending
embassies, and commanding standing armies and navies, which belong to the power of the
confederation, and will be convinced that this government is no more like a true picture of your
own than an Angel of Darkness resembles an Angel of Light.
CATO

Antifederalist No. 68 ON THE MODE OF ELECTING THE
PRESIDENT
From a speech by William Grayson given to the Virginia ratifying convention on June 18, 1788.
Mr. [William] GRAYSON. Mr. Chairman, one great objection with me is this: If we advert to…..
[the] democratical, aristocratical, or executive branch, we shall find their powers are perpetually
varying and fluctuating throughout the whole. Perhaps the democratic branch would be well
constructed, were it not for this defect. The executive is still worse, in this respect, than the
democratic branch. He is to be elected by a number of electors in the country; but the principle is
changed when no person has a majority of the whole number of electors appointed, or when
more than one have such a majority, and have an equal number of votes; for then the lower house
is to vote by states. It is thus changing throughout the whole. It seems rather founded on accident
than any principle of government I ever heard of. We know that there scarcely ever was an
election of such an officer without the interposition of foreign powers. Two causes prevail to
make them intermeddle in such cases:-one is, to preserve the balance of power; the other, to
preserve their trade. These causes have produced interferences of foreign powers in the election
of the king of Poland. All the great powers of Europe have interfered in an election which took
place not very long ago, and would not let the people choose for themselves. We know how
much the powers of Europe have interfered with Sweden. Since the death of Charles XII, that
country has been a republican government. Some powers were willing it should be so; some
were willing her imbecility should continue; others wished the contrary; and at length the court
of France brought about a revolution, which converted it into an absolute government. Can
America be free from these interferences? France, after losing Holland, will wish to make
America entirely her own. Great Britain will wish to increase her influence by a still closer
connection. It is the interest of Spain, from the contiguity of her possessions in the western
hemisphere to the United States, to be in an intimate connection with them, and influence their
deliberations, if possible. I think we have every thing, to apprehend from such interferences. It is
highly probable the President will be continued in office for life. To gain his favor, they will
support him. Consider the means of importance he will have by creating officers. If he has a
good understanding with the Senate, they will join to prevent a discovery of his misdeeds. . . .
This quadrennial power cannot be justified by ancient history. There is hardly an instance where
a republic trusted its executive so long with much power; nor is it warranted by modern
republics. The delegation of power is, in most of them, only for one year.
When you have a strong democratical and a strong aristocratical branch, you may have a strong
executive. But when those are weak, the balance will not be preserved, if you give the executive
extensive powers for so long a time. As this government is organized, it would be dangerous to
trust the President with such powers. How will you punish him if he abuse his power? Will you
call him before the Senate? They are his counsellors and partners in crime. Where are your
checks? We ought to be extremely cautious in this country. If ever the government be changed, it
will probably be into a despotism. The first object in England was to destroy the monarchy; but
the aristocratic branch restored him, and of course the government was organized on its ancient
principles. But were a revolution to happen here, there would be no means of restoring the
government to its former organization. This is a caution to us not to trust extensive powers. I
have an extreme objection to the mode of his election. I presume the seven Eastern States will
always elect him. As he is vested with the power of making treaties, and as there is a material
distinction between the carrying and productive states, the former will be disposed to have him to
themselves. He will accommodate himself to their interests in forming treaties, and they will
continue him perpetually in office. Thus mutual interest will lead them reciprocally to support
one another. It will be a government of a faction, and this observation will apply to every part of
it; for, having a majority, they may do what they please. I have made an estimate which shows
with what facility they will be able to reelect him. The number of electors is equal to the number
of representatives and senators; viz., ninety-one. They are to vote for two persons. They give,
therefore, one hundred and eighty-two votes. Let there be forty-five votes for four different
candidates, and two for the President. He is one of the five highest, if he have but two votes,
which he may easily purchase. In this case, by the 3d clause of the lst section of the 2d article,
the election is to be by the representatives, according to states. Let New Hampshire be for him,-a
majority of its . . . . .
3 representatives is 2
Rhode Island 1 1
Connecticut 5 3
New Jersey 4 3
Delaware 1 1
Georgia 3 2
North Carolina 5 3
A majority of seven states is 15
Thus the majority of seven states is but
15, while the minority amounts to 50.
The total number of voices (91 electors
and 65 representatives) is . . 156
Voices in favor of the President
are, 2 state electors and 15
representatives ….. 17
139
So that the President may be reelected by the voices of 17 against 139.
It may be said that this is an extravagant case, and will never happen. In my opinion, it will often
happen. A person who is a favorite of Congress, if he gets but two votes of electors, may, by the
subsequent choice of 15 representatives, be elected President. Surely the possibility of such a
case ought to be excluded.
Antifederalist No. 69 THE CHARACTER OF THE EXECUTIVE
OFFICE
by Richard Henry Lee
The great object is, in a republican government, to guard effectually against perpetuating any
portion of power, great or small, in the same man or family. This perpetuation of power is totally
uncongenial to the true spirit of republican governments. On the one hand the first executive
magistrate ought to remain in office so long as to avoid instability in the execution of the laws;
on the other, not so long as to enable ]him to take any measures to establish himself. The
convention, it seems, first agreed that the president should be chosen for seven years, and never
after to be eligible. Whether seven years is a period too long or not, is rather a matter of opinion;
but clear it is, that this mode is infinitely preferable to the one finally adopted. When a man shall
get the chair, who may be reelected from time to time, for life, his greatest object will be to keep
it; to gain friends and votes, at any rate; to associate some favorite son with himself, to take
office after him. Whenever he shall have any prospect of continuing the office in himself and
family, he will spare no artifice, no address, and no exertions, to increase the powers and
importance of it. The servile supporters of his wishes will be placed in all offices, and tools
constantly employed to aid his views and sound his praise. A man so situated will have no
permanent interest in the government to lose, by contests and convulsions in the state; but always
much to gain, and frequently the seducing and flattering hope of succeeding. If we reason at all
on the subject, we must irresistibly conclude that this will be the case with nine tenths of the
presidents. We may have, for the first president, and perhaps, one in a century or two afterwards
(if the government should withstand the attacks of others) a great and good man, governed by
superior motives; but these are not events to be calculated upon in the present state of human
nature. A man chosen to this important office for a limited period and always afterwards
rendered, by the constitution, ineligible, will be governed by very different considerations. He
can have no rational hopes or expectations of retaining his office after the expiration of a known
limited time, or of continuing the office in his family, as by the constitution there must be a
constant transfer of it from one man to another, and consequently from one family to another. No
man will wish to be a mere cypher at the bead of the government. The great object of each
president then will be to render his government a glorious period in the annals of his country.
When a man constitutionally retires from office, he retires without pain; he is sensible he retires
because the laws direct it, and not from the success of his rivals, nor with that public
disapprobation which being left out, when eligible, implies. It is said that a man knowing that at
a given period he must quit his office, will unjustly attempt to take from the public, and lay in
store the means of support and splendor in his retirement. There can, I think, be but very little in
this observation. The same constitution that makes a man eligible for a given period only, ought
to make no man eligible till he arrive to the age of forty or forty-five years. If he be a man of
fortune, be will retire with dignity to his estate; if not, he may, like the Roman consuls, and other
eminent characters in republics, find an honorable support and employment in some respectable
office. A man who must, at all events, thus leave his office, will have but few or no temptations
to fill its dependent offices with his tools, or any particular set of men; whereas the man
constantly looking forward to his future elections, and perhaps, to the aggrandizement of his
family, will have every inducement before him to fill all places with his own props and
dependents. As to public monies, the president need handle none of them, and he may always
rigidly be made to account for every shilling he shall receive.
On the whole, it would be, in my opinion, almost as well to create a limited monarchy at once,
and give some family permanent power and interest in the community, and let it have something
valuable to itself to lose in convulsions in the state, and in attempts of usurpation, as to make a
first magistrate eligible for life, and to create hopes and expectations in him and his family of
obtaining what they have not. In the latter case, we actually tempt them to disturb the state, to
foment struggles and contests, by laying before them the flattering prospect of gaining much
without risking anything.
The constitution provides only that the president shall hold his office during the term of four
years; that, at most, only implies, that one shall be chosen every fourth year. It also provides that
in case of the removal, death, resignation, or inability, both of the president and vice-president,
congress may declare what officer shall act as president; and that such officers shall act
accordingly, until the disability be removed, or a president shall be elected. It also provides that
congress may determine the time of choosing electors, and the day on which they shall give their
votes. Considering these clauses together, I submit this question-whether in case of a vacancy in
the office of president, by the removal, death, resignation, or inability of the president and vice
president, and congress should declare that a certain officer, as secretary of foreign affairs, for
instance, shall act as president, and suffer such officer to continue several years, or even for his
life, to act as president, by omitting to appoint the time for choosing electors of another
president, it would be any breach of the constitution? There appears to me to be an intended
provision for supplying the office of president-not only for any remaining portion of the four
years, but in cases of emergency-until another president shall be elected. . . . [But] we do not
know that it is impossible; we do not know that it is improbable, in case a popular officer should
thus be declared the acting president, that he might continue for life, and without any violent act,
but merely by neglects and delays on the part of congress. . .
THE FEDERAL FARMER
Antifederalist No. 70 THE POWERS AND DANGEROUS
POTENTIALS OF HIS ELECTED MAJESTY
“AN OLD WHIG’s” essay from The New-York Journal of December 11, 1787.
…. In the first place the office of president of the United States appears to me to be clothed with
such powers as are dangerous. To be the fountain of all honors in the United States-commander
in chief of the army, navy, and militia; with the power of making treaties and of granting
pardons; and to be vested with an authority to put a negative upon all laws, unless two thirds of
both houses shall persist in enacting it, and put their names down upon calling the yeas and nays
for that purpose-is in reality to be a king, as much a king as the king of Great Britain, and a king
too of the worst kind: an elective king. If such powers as these are to be trusted in the hands of
any man, they ought, for the sake of preserving the peace of the community, at once to be made
hereditary. Much as I abhor kingly government, yet I venture to pronounce, where kings are
admitted to rule they should most certainly be vested with hereditary power. The election of a
king whether it be in America or Poland, will be a scene of horror and confusion; and I am
perfectly serious when I declare, that, as a friend to my country, I shall despair of any happiness
in the United States until this office is either reduced to a lower pitch of power, or made
perpetual and hereditary. When I say that our future president will be as much a king as the king
of Great Britain, I only ask of my readers to look into the constitution of that country, and then
tell me what important prerogative the king of Great Britain is entitled to which does not also
belong to the president during his continuance in office. The king of Great Britain, it is true, can
create nobility which our president cannot; but our president will have the power of making all
the great men, which comes to the same thing. All the difference is, that we shall be embroiled in
contention about the choice of the man, while they are at peace under the security of an
hereditary succession. To be tumbled headlong from the pinnacle of greatness and be reduced to
a shadow of departed royalty, is a shock almost too great for human nature to endure. It will cost
a man many struggles to resign such eminent powers, and ere long, we shall find some one who
will be very unwilling to part with them. Let us suppose this man to be a favorite with his army,
and that they are unwilling to part with their beloved commander in chief-or to make the thing
familiar, let us suppose a future president and commander in chief adored by his army and the
militia to as great a degree as our late illustrious commander in chief; and we have only to
suppose one thing more, that this man is without the virtue, the moderation and love of liberty
which possessed the mind of our late general-and this country will be involved at once in war
and tyranny. So far is it from its being improbable that the man who shall hereafter be in a
situation to make the attempt to perpetuate his own power, should want the virtues of General
Washington, that it is perhaps a chance of one hundred millions to one that the next age will not
furnish an example of so disinterested a use of great power. We may also suppose, without
trespassing upon the bounds of probability, that this man may not have the means of supporting,
in private life, the dignity of his former station; that like Caesar, he may be at once ambitious and
poor, and deeply involved in debt. Such a man would die a thousand deaths rather than sink from
the heights of splendor and power, into obscurity and wretchedness. We are certainly about
giving our president too much or too little; and in the course of less than twenty years we shall
find that we have given him enough to enable him to take all. It would be infinitely more prudent
to give him at once as much as would content him, so that we might be able to retain the rest in
peace, for if once power is seized by violence, not the least fragment of liberty will survive the
shock. I would therefore advise my countrymen seriously to ask themselves this question:
Whether they are prepared to receive a king? If they are, to say so at once, and make the kingly
office hereditary; to frame a constitution that should set bounds to his power, and, as far as
possible, secure the liberty of the subject. If we are not prepared to receive a king, let us call
another convention to revise the proposed constitution, and form it anew on the principles of a
confederacy of free republics; but by no means, under pretense of a republic, to lay the
foundation for a military government, which is the worst of all tyrannies.
AN OLD WHIG
Antifederalist No. 71 THE PRESIDENTIAL TERM OF OFFICE
Part 1: Luther Martin, The Genuine Information
Part 2: An excerpt from the 18th letter of “AGRIPPA” appearing in The Massachusetts Gazette
on February 5, 1788.
Part 3: From by “A CUSTOMER” in the Maine Cumberland Gazette, March 13, 1788.
…. The second article relates to the executive-his mode of election, his powers, and the length of
time he should continue in office.
On this subject there was a great diversity of sentiment [at the Philadelphia constitutional
convention]. Many of the members were desirous that the President should be elected for seven
years, and not to be eligible a second time. Others proposed that he should not be absolutely
ineligible, but that he should not be capable of being chosen a second time, until the expiration of
a certain number of years. The supporters of the above proposition went upon the idea that the
best security for liberty was a limited duration, and a rotation of office, in the chief executive
department.
There was a party who attempted to have the President appointed during good behavior, without
any limitation as to time; and, not being able to succeed in that attempt, they then endeavored to
have him reeligible without any restraint. It was objected that the choice of a President to
continue in office during good behavior, would at once be rendering our system an elective
monarchy; and that, if the President was to be reeligible without any interval of disqualification,
it would amount nearly to the same thing, since, from the powers that the President is to enjoy,
and the interests and influence with which they will be attended, he will be almost absolutely
certain of being reelected from time to time, as long as he lives. As the propositions were
reported by the committee of the whole house, the President was to be chosen for seven years,
and not to be eligible at any time after. In the same manner, the proposition was agreed to in
Convention; and so it was reported by the committee of detail, although a variety of attempts
were made to alter that part of the system by those who were of a contrary opinion, in which they
repeatedly failed; but, sir, by never losing sight of their object, and choosing a proper time for
their purpose, they succeeded, at length, in obtaining the alteration, which was not made until
within the last twelve days before the Convention adjourned….
Resolved, that the constitution lately proposed for the United States be received only upon the
following conditions. . . .
The president shall be chosen annually and shall serve but one year, and shall be chosen
successively from the different states, changing every year….
AGRIPPA
I have one difficulty in my mind respecting our admirable Constitution, which I hope somebody
will attempt to remove. Art. 3, sect. 1: “The executive power shall be vested in a President of the
United States of America. He shall hold his office during the term of four years.” Here is no
declaration that a new one shall be chosen at the expiration of that time. “Congress may
determine the time of choosing the electors; and the day on which they shall give their votes.”
But suppose they should think it for the public good, after the first election, to appoint the first
Tuesday of September, in the year two thousand, for the purpose of choosing the second
President; and by law empower the Chief Justice of the Supreme Judicial Court to act as
President until that time. However disagreeable it might be to the majority of the States, I do not
see but that they are left without a remedy, provided four States should be satisfied with the
measure. The President elected is not to receive any other emolument; yet the Chief Justice is not
disqualified as a Judge. Why did our worthy Chief Justice, at Cambridge the year past, in his
address to the Grand Jury, call upon them to support “that free and excellent Constitution, which
it has cost the blood of thousands of our friends and fellow citizens to establish; that Constitution
which has carefully separated and distinguished the principal departments of power, that they
might never combine against the liberty of the subject”-if it is not a necessary article in a
constitution? If necessary in a State constitution, why not in one for the whole people? Was it not
as easy to have said the President should be chosen every fourth year, as to have said the
Representatives shall be chosen every second year? The celebrated Mr. King observes that this is
not a confederation of States-for the style is in the name of the people. Therefore, it appears to
me, the rights of the people should be as well guarded, on this point, here, as in the constitution
of a State….
A CUSTOMER
Antifederalist No. 72 ON THE ELECTORAL COLLEGE; ON
REELIGIBILITY OF THE PRESIDENT
By an anonymous writer “REPUBLICUS,” appearing in The Kentucky Gazette on March 1,
1788.
. . I go now to Art. 2, Sec. 1, which vest the supreme continental executive power in a presidentin
order to the choice of whom, the legislative body of each state is empowered to point out to
their constituents some mode of choice, or (to save trouble) may choose themselves, a certain
number of electors, who shall meet in their respective states, and vote by ballot, for two persons,
one of whom, at least, shall not be an inhabitant of the same state with themselves. Or in other
words, they shall vote for two, one or both of whom they know nothing of. An extraordinary
refinement this, on the plain simple business of election; and of which the grand convention have
certainly the honor of being the first inventors; and that for an officer too, of so much importance
as a president – invested with legislative and executive powers; who is to be commander in chief
of the army, navy, militia, etc.; grant reprieves and pardons; have a temporary negative on all
bills and resolves; convene and adjourn both houses of congress; be supreme conservator of
laws; commission all officers; make treaties; and who is to continue four years, and is only
removable on conviction of treason or bribery, and triable only by the senate, who are to be his
own council, whose interest in every instance runs parallel with his own, and who are neither the
officers of the people, nor accountable to them.
Is it then become necessary, that a free people should first resign their right of suffrage into other
hands besides their own, and then, secondly, that they to whom they resign it should be
compelled to choose men, whose persons, characters, manners, or principles they know nothing
of? And, after all (excepting some such change as is not likely to happen twice in the same
century) to intrust Congress with the final decision at last? Is it necessary, is it rational, that the
sacred rights of mankind should thus dwindle down to Electors of electors, and those again
electors of other electors? This seems to be degrading them even below the prophetical curse
denounced by the good old patriarch, on the offspring of his degenerate son: “servant of
servants”. . .
Again I would ask (considering how prone mankind are to engross power, and then to abuse it) is
it not probable, at least possible, that the president who is to be vested with all this
demiomnipotence – who is not chosen by the community; and who consequently, as to them, is
irresponsible and independent-that he, I say, by a few artful and dependent emissaries in
Congress, may not only perpetuate his own personal administration, but also make it hereditary?
By the same means, he may render his suspensive power over the laws as operative and
permanent as that of G. the 3d over the acts of the British parliament; and under the modest title
of president, may exercise the combined authority of legislation and execution, in a latitude yet
unthought of. Upon his being invested with those powers a second or third time, he may acquire
such enormous influence-as, added to his uncontrollable power over the army, navy, and militia;
together with his private interest in the officers of all these different departments, who are all to
be appointed by himself, and so his creatures, in the true political sense of the word; and more
especially when added to all this, he has the power of forming treaties and alliances, and calling
them to his assistance-that he may, I say, under all these advantages and almost irresistible
temptations, on some pretended pique, haughtily and contemptuously, turn our poor lower house
(the only shadow of liberty we shall have left) out of doors, and give us law at the bayonet’s
point. Or, may not the senate, who are nearly in the same situation, with respect to the people,
from similar motives and by similar means, erect themselves easily into an oligarchy, towards
which they have already attempted so large a stride? To one of which channels, or rather to a
confluence of both, we seem to be fast gliding away; and the moment we arrive at it-farewell
liberty. . . .
To conclude, I can think of but one source of right to government, or any branch of it-and that is
THE PEOPLE. They, and only they, have a right to determine whether they will make laws, or
execute them, or do both in a collective body, or by a delegated authority. Delegation is a
positive actual investiture. Therefore if any people are subjected to an authority which they have
not thus actually chosen-even though they may have tamely submitted to it-yet it is not their
legitimate government. They are wholly passive, and as far as they are so, are in a state of
slavery. Thank heaven we are not yet arrived at that state. And while we continue to have sense
enough to discover and detect, and virtue en(>ugh to detest and oppose every attempt, either of
force or fraud, either from without or within, to bring us into it, we never will.
Let us therefore continue united in the cause of rational liberty. Let unity and liberty be our mark
as well as our motto. For only such an union can secure our freedom; and division will inevitably
destroy it. Thus a mountain of sand may peace meal [sic] be removed by the feeble hands of a
child; but if consolidated into a rock, it mocks the united efforts of mankind, and can only fall in
a general wreck of nature.
REPUBLICUS
Antifederalist No. 73 DOES THE PRESIDENTIAL VETO
POWER INFRINGE ON THE SEPARATION OF
DEPARTMENTS?
“WILLIAM PENN,” an anonymous writer appeared in the [Philadelphia] Independent Gazetteer
on January 3, 1788.
. . . I believe that it is universally agreed upon in this enlightened country, that all power residing
originally in the people, and being derived from them, they ought to be governed by themselves
only, or by their immediate representatives. I shall not spend any time in explaining a principle
so well and so generally understood, but I shall proceed immediately to that which I conceive to
be the next in order.
The next principle, without which it must be clear that no free government can ever subsist, is
the DIVISION OF POWER among those who are charged with the execution of it. It has always
been the favorite maxim of princes, to divide the people, in order to govern them. It is now time
that the people should avail themselves of the same maxim, and divide powers among their
rulers, in order to prevent their abusing it. The application of this great political truth, has long
been unknown to the world, and yet it is grounded upon a very plain natural principle. If, says
Montesquieu, the same man, or body of men, is possessed both of the legislative and executive
power, there is NO LIBERTY, because it may be feared that the same monarch, or the same
senate, will enact tyrannical laws, in order to execute them in a tyrannical manner. Nothing can
be clearer, and the natural disposition of man to ambition and power makes it probable that such
would be the consequence. Suppose for instance, that the same body, which has the power of
raising money by taxes, is also entrusted with the application of that money, they will very
probably raise large sums, and apply them to their own private uses. If they are empowered to
create offices, and appoint the officers, they will take that opportunity of providing for
themselves, and their friends, and if they have the power of inflicting penalties for offenses, and
of trying the offenders, there will be no bounds to their tyranny. Liberty therefore can only
subsist, where the powers of government are properly divided, and where the different
jurisdictions are inviolably kept distinct and separate.
(1) I shall illustrate this doctrine by an example. A burgher of a certain borough of Switzerland
was elected Bailiff, or Chief Magistrate, for one year, according to the constitution of the place.
Shortly after his appointment, he sent for one of his neighbors, and ordered him to pull off his
boots. The honest neighbor was astonished, and attempted to remonstrate, but the bailiff was
determined to exert his authority, and threatened to send him to jail, if he did not yield him an
immediate obedience. The poor man was forced to comply, for the bailiff was vested with power,
both legislative and executive. He pulled off his worship’s boots, but said to him, “When I am
appointed bailiff in my turn, you shall pull off my boots and clean them too.”
The first and most natural division of the powers of government are into the legislative and
executive branches. These two should never be suffered to have the least share of each other’s
jurisdiction, or to intermeddle with it in any manner. For whichever of the two divides its power
with the other, will certainly be subordinate to it; and if they both have a share of each other’s
authority, they will be in fact but one body. Their interest as well as their powers will be the
same, and they will combine together against the people.
It is therefore a political error of the greatest magnitude, to allow the executive power a negative,
or in fact any kind of control over the proceedings of the legislature. The people of Great Britain
have been so sensible of this truth, that since the days of William III, no king of England has
dared to exercise the negative over the acts of the two houses of parliament, to which he is
clearly entitled by his prerogative.
This doctrine is not novel in America; it seems on the contrary to be everywhere well understood
and admitted beyond controversy. In the bills of rights or constitutions of New-Hampshire,
Massachusetts, Maryland, Virginia, North- Carolina and Georgia, it is expressly declared, “That
the legislative, executive and judicial departments, shall be forever separate and distinct from
each other.” In Pennsylvania and Delaware, they are effectually separated without any particular
declaration of the principle. In the other states indeed, the executive branch possesses more or
less of the executive power. And here it must appear singular that the state of Massachusettswhere
the doctrine of a separate jurisdiction is most positively established, and in whose bill of
rights these remarkable words are to be found, “The executive shall never exercise the legislative
and judicial powers, or either of them, to the end it may be a government of laws and not of
men” (sect. 30) -yet in that commonwealth and New-Hampshire, the executive branch, which
consists of a single magistrate, has more control over the legislature than in any other state. For
there, if the governor refuses his assent to a bill, it cannot be passed into a law, unless two thirds
of the house afterwards concur. In New York the same power is given to a Council of Revision,
consisting of the Governor, the Chancellor and judges of the Supreme Court, or any three of
them, of which the Governor is to be one. In Rhode-Island and Connecticut, whose governments
were established before the revolution, the Governor has a single vote as a member of the upper
house, and New Jersey has adopted this part of their constitution. In Georgia the laws are to be
revised by the Governor and Council, but they can do no more than give their opinion upon
them. In Maryland the bills are to be signed by the Governor before they can be enacted; and in
South-Carolina they are to be sealed with the great sea], which is in the Governor’s custody. But
in the first of these states, the constitution prescribes that the Governor shall sign the bills; and in
the latter, a joint committee of both houses of legislature is to wait upon the chief magistrate to
receive and return the great seat, which implies that he is bound to deliver it to them, for the
special purpose of affixing it to the laws of the state. Pennsylvania has proceeded upon a much
more rational ground, their legislature having a particular seal of their own, and their laws
requiring only to be signed by the speaker. It in Maryland or South-Carolina a difference should
ever arise between the legislature and the Governor, and the latter should refuse to sign the laws,
or to deliver the great seal, the most fatal consequences might ensue.
Here then we see the great leading principle of the absolute division of the legislative from the
executive jurisdiction, admitted in almost every one of the American states as a fundamental
maxim in the politics of a free country. The theory of this general doctrine is everywhere
established, though a few states have somewhat swerved from it in the practice. From whence we
must conclude, that even the knowledge and full conviction of a new political truth will not
always immediately conquer inveterate habits and prejudices. The idea of the negative, which the
constitution of England gives to the monarch over the proceedings of the other branches of
parliament, although it has so long become obsolete, has had an effect upon timid minds, and
upon the minds of those who could not distinguish between the form and spirit of the British
constitution. They would not grant to the executive branch an absolute negative over the
legislature, but yet they tried every method to introduce something similar to it. They reprobated
the doctrine in the most express words, and yet they could not bear to part entirely with it. It is
curious to observe how many different ways they have endeavored to conciliate truth with
prejudice. Of those states who have allowed the executive branch to intermeddle with the
proceedings of the legislature, no two (New Hampshire and Massachusetts excepted) have done
it exactly in the same manner. They have tried every possible medium, but having lost sight of
the original principle which they had already established, and which alone could have been their
safest guide, they groped about in the dark, and could not find any solid ground on which to
establish a general rule. Like Noah’s dove, being once out of the ark of truth, they could not find
elsewhere a place to rest their feet.
These facts will no doubt afford an interesting page in the history of the contradictions of the
human mind. Unfortunately, they do not stand single, and this is not the only instance that we
find in the constitutions of the different states, of a general principle being expressly declared as
a part of the natural rights of the citizens, and afterwards being as expressly contradicted in the
practice. Thus we find it declared in every one of our bills of rights, “that there shall be a perfect
liberty of conscience, and that no sect shall ever be entitled to a preference over the others.” Yet
in Massachusetts and Maryland, all the officers of government, and in Pennsylvania the members
of the legislature, are to be of the Christian religion; in New-Jersey, North-Carolina, and
Georgia, the Protestant, and in Delaware, the trinitarian sects, have an exclusive right to public
employment; and in South-Carolina the constitution goes so far as to declare the creed of the
established church. Virginia and New-York are the only states where there is a perfect liberty of
conscience. I cannot say any thing as to Connecticut and Rhode-Island, as their constitutions are
silent on the subject, and I have not been informed of their practice.
Whether these religious restrictions are right or wrong, it is not my intention, nor is it my object
to examine in the course of these disquisitions. I only meant to show, that in laying down a
political system it is safer to rely on principles than upon precedents, because the former are –
fixed and immutable, while the latter vary with men, places, times and circumstances.
WILLIAM PENN

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