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Course Hero. "The Federalist Papers Study Guide." April 27, 2018. Accessed November 20, 2018. https://www.coursehero.com/lit/The-Federalist-Papers/.
Course Hero, "The Federalist Papers Study Guide," April 27, 2018, accessed November 20, 2018, https://www.coursehero.com/lit/The-Federalist-Papers/.
John Jay has not appeared as an author in The Federalist Papers series since Essay 5, as he wrote only five papers in all. In Essay 64, Jay brings his expertise on the subject of treaties to bear on an analysis of the Senate's role of "advice and consent" on international agreements, according to the new Constitution. The Constitution calls for the treaty-making power to be shared between the president and the Senate, which must approve such agreements by a two-thirds vote.
The age, qualifications, more extensive experience, and longer term of office of senators ideally equip them for such a responsibility, according to Jay. The provisions of the new Constitution allow the president to negotiate treaties in secret, and then call upon the Senate for advice and approval. Critics who argue that treaties ought to be alterable by acts of Congress are mistaken, Jay asserts, since treaties are special instruments that are not comparable to ordinary laws. Treaties are international agreements. If they are subject to change by an act of Congress, many nations may choose not to enter into a treaty with the United States.
In this paper, Hamilton turns to the role of the Senate as a court of impeachment for federal officials, from the president on down, who have been impeached (charged or accused) by the House of Representatives. Hamilton argues that in this arrangement the framers of the Constitution may not have devised a perfect structure, but their provisions are the best that could be hoped for in this sphere. In particular, he declares, the Supreme Court would not have been an effective substitute for the Senate as a court of impeachment. The Supreme Court is too small to serve effectively in this role, and its authority is likely to prove too meager.
In this essay, Hamilton responds to four additional objections to the Senate in its various functions. First, as a court of impeachment the Senate must blend the legislative and judicial powers of government—a merger objected to by critics who claim that such action violates the principle of the separation of powers. Hamilton replies the legislative branch of government must be able to hold the executive accountable. Two distinct functions in the impeachment process—accusation and trial—are divided between the House and Senate. Furthermore, state legislatures have effectively employed such a process.
Second, critics of the Senate are also apprehensive that this body will become too aristocratic and thus removed from the interests and needs of the people. Hamilton's response centers on the countervailing force of the House, which will tend to restrain the Senate. In particular, the House enjoys the power of originating all money bills. It will also serve as the umpire in presidential elections that are not definitively decided by the electoral college.
Third, objectors complain the Senate cannot act as an effective court of impeachment when the senators themselves may have deliberated on the confirmation of officials who are now accused of malfeasance. Once again, Hamilton uses the House of Representatives as an effective reply, saying senators will not be so oblivious as to ignore substantial evidence accumulated by the House regarding an official's misdeeds.
The last objection Hamilton considers in this essay concerns the impartiality of senators in the ratification of treaties with foreign nations. Hamilton dismisses speculation of senatorial corruption in this area as highly improbable.
In Essay 64, Jay exhibits predictable common sense and practicality in his discussion of the Senate's role in making treaties. In the middle of this essay there is a notable allusion to some well-known verses in Shakespeare's Julius Caesar: "There is a tide in the affairs of men, / which, taken at the flood, leads on to fortune" (Act 4, Scene 3). Jay's reference to the speech by Brutus in Shakespeare's play drives home Jay's main idea that flexibility in the making of treaties counts for a great deal. The president should be free to profit from an expert sense of timeliness and opportunity, even as his negotiations are subject to the checks and balances of senatorial "advice and consent."
Hamilton's lack of confidence in the Supreme Court in Essay 65 is intriguing. He doubts that the apex of the judicial branch possesses the authority to substitute effectively for the Senate in impeachment trials. Throughout The Federalist Papers the authors consistently rate the executive and the judicial branches as inferior to the legislative from a variety of perspectives: familiarity with the people and their interests, popular support, and day-to-day governmental authority.
Historically, the Senate's role as a court of impeachment has not been extensive. Since the First Congress in 1789, fewer than 20 impeachment trials have been held. These have included the impeachment of two presidents (Andrew Johnson in 1868 and Bill Clinton in 1999), one senator, one Supreme Court justice, and a number of federal judges. Both presidents were acquitted.