Continuing with the discussion of the impeachment process that was started in Federalist 65, Hamilton addresses the concern that having the Senate act as court for the proceedings violates the principle of separation of powers. The Founders were careful to minimize the role of the Executive to the enforcement of laws, the Congress to the writing of laws, and the Judiciary to the interpretation of laws. To be certain, each branch overlaps the others as well.
The Executive influences law by virtue of its veto authority and the Judiciary by ensuring that no law violates the principles set forth in the Constitution. In the case of impeachment, the entire authority lies within the legislative branch. This power is split within the legislative branch between the House and Senate and Hamilton addresses this decision here.
The separation of impeachment authority prevents any group of people from being both accuser and judge and “and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches.”1 Furthermore the two thirds requirement in the Senate, presumably the more mature body, is yet another “security to innocence”. In this process as well as in criminal proceedings for individual citizens, the Founders stacked the deck on behalf of the defendant. Hamilton points out that the state Senate, the state supreme court, and the chancellor of the state hold all the power for impeachment in his home state of New York, and yet they were objecting to this much more measured process.
The second objection to the Senate’s impeachment power is that it is, along with their role in approving treaties, the concentration of too much power in one body. That power, as well as the fact that Senators are not elected by the people, give it something of an aristocratic flavor. But the Senate is limited in its legislative power in that the House is responsible for “originating money bills”. This safeguard has been eroded over time. While the Senate acts as the judge and jury in the case of impeachment, it cannot initiate the process. It falls upon the President to select judges and ambassadors, and the Senate’s role is limited to advice and consent.
A last objection is that since the President and the Senate work together to make treaties, if they were to join the “Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve”? Hamilton dismisses this concern by pointing out that the two thirds Senate requirement for treaty approval would make that hypothetical unlikely.
As to the possibility that the impeachment could be used against the entire “House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation”, Hamilton argues against such “punishment for acts done in a collective capacity” and goes on to point out that “security to the society must depend on the care which is taken to confide the trust to proper hands”. In other words, it is up to us to choose our leaders carefully or else we risk no less than the security of our society.
Indeed.
Next: Federalist 67 Analysis
To read all of John Parillo’s work on the Federalist Papers, click here.
Footnotes
- Original quotes found here: https://federalist-papers.com/federalist-66/. ↩︎
Citation
This piece was originally published at American Free News Network and re-published with their permission.
