Master of the Senate (6 page)

Nor was it only the power of the executive of which the Framers were wary. These creators of a government of the people feared not only the people’s rulers but the people themselves, the people in their numbers, the people in their passions, what the Founding Father Edmund Randolph called “the turbulence and follies of democracy.”

The Framers of the Constitution feared the people’s power because they were, many of them, members of what in America constituted an aristocracy, an aristocracy of the educated, the well-born, and the well-to-do, and they mistrusted those who were not educated or well-born or well-to-do. More specifically, they feared the people’s power because, possessing, and esteeming, property, they wanted the rights of property protected against those who did not possess it. In the notes he made for a speech in the Constitutional Convention, James Madison wrote of the “real or supposed difference of interests” between “the rich and poor”—“those who will labor under all the hardships of life, and secretly sigh for a more equal distribution of its blessings”—and of the fact that over the ages to come the latter would come to outnumber the former. “According to the equal laws of suffrage, the power will slide into the hands of the latter,” he noted. “Symptoms, of a leveling spirit, as we have understood, have sufficiently appeared in certain quarters to give notice of the future danger.” But the Framers feared the people’s power also because they hated tyranny, and they knew there could be a tyranny of the people as well as the tyranny of a King, particularly in a system designed so that, in many ways, the majority ruled. “Liberty may be endangered by the abuses of liberty as well as by the abuses of power,” Madison wrote. These abuses were more likely because the emotions of men in the mass ran high and fast, they were “liable to err … from fickleness and passion,” and “the major interest might under sudden impulses be tempted to commit injustice on the minority.”

So the Framers wanted to check and restrain not only the people’s rulers, but the people; they wanted to erect what Madison called “a necessary fence” against the majority will. To create such a fence, they decided that the Congress would have not one house but two, and that while the lower house would be designed to reflect the popular will, that would not be the purpose of the upper house. How, Madison asked, is “the future danger”—the danger of “a leveling spirit”—“to be guarded against on republican principles? How is the danger in all cases of interested coalitions to oppress the minority to be guarded against? Among other means by the establishment of a body in the government sufficiently respectable for its wisdom and virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale.” This body, Madison said, was to be the Senate. Summarizing in the Constitutional Convention the ends that would be served by this proposed upper house of Congress,
Madison said they were “first to protect the people against their rulers; secondly to protect the people against the transient impressions into which they themselves might be led.”

“The use of the Senate,” Madison said, “is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.” It should, he said, be “an anchor against popular fluctuations.” He drew for parallels on classical history, which, he said, “informs us of no long-lived republic which had not a Senate.” In two of the three “long-lived” republics of antiquity, Sparta and Rome, and probably in the third—Carthage (about whose governmental institutions less was known)—senators served for life. “These examples … when compared with the fugitive and turbulent existence of other ancient republics, [are] very instructive proofs of the necessity of some institution that will blend stability with liberty.” Thomas Jefferson had been in Paris during the Convention, serving as minister to France. When he returned, he asked George Washington over breakfast why the President had agreed to a two-house Congress. According to a story that may be apocryphal, Washington replied with his own question: “Why did you pour your tea into that saucer?” And when Jefferson answered, “To cool it,” Washington said, “Just so. We pour House legislation into the senatorial saucer to cool it.” The resolution providing for a two-house Congress was agreed to by the Constitutional Convention with almost no debate or dissent.

And to ensure that the Senate could protect the people against themselves, the Framers armored the Senate against the people.

One layer of armor was bolted on to allay the fears of the states with fewer people, that the more populous states would combine to gain a commercial advantage or to control presidential appointments and national policies; the small states were determined that all states should have an equal voice in the Congress, so, in what became known as the “Great Compromise,” it was agreed that while representation in the House would be by population, in the Senate it would be by states; as a result of that provision, a majority of the people could not pass a law; a majority of the states was required as well. But there were other, even stronger, layers. One was size. “Numerous assemblies,” Madison explained, have a propensity “to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” So the Senate would, in Madison’s phrase, be “less numerous.” Each state, the Framers decided, would be represented by only two senators; the first Senate of the United States consisted of just twenty-six men. Another was the method by which senators would be elected. When one of the Framers, James Wilson of Pennsylvania, suggested that they be elected by the people, not a single member of the Convention rose to support him. “The people should have as little to do as may be about the government,” Roger Sherman declared. “They lack information and are constantly liable to be misled.” After Elbridge Gerry said that “The evils we experience flow from an excess of democracy,”
the Framers took steps to guard against such an excess. There would, they decided, be a “filtration” or “refinement” of the people’s will before it reached the Senate: senators would be elected not by the people but by the legislatures of their respective states—a drastic filtration since in 1787 the franchise was so narrow that the legislatures themselves were elected by only a small percentage of the citizenry.

Senators would also be armored against the popular will by the length of their terms, the Framers decided. Frequent elections mean frequent changes in the membership of a body, and, Madison said, from a “change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success.” What good is the rule of law if “no man … can guess what the [law] will be tomorrow?” Guarding against “mutable policy,” he pointed out, requires “the necessity of some stable institution in the government.” Edmund Randolph, as usual, was more blunt. “The object of this second branch is to control the democratic branch,” he said. “If it not be a firm body, the other branch being more numerous and coming immediately from the people, will overwhelm it.” Senators, he said, should “hold their offices for a term sufficient to insure their independency.” The term sufficient, the Framers decided, would be six years. Senators would hold office three times as long as the members of the “democratic branch.” They would hold office longer than the President held office. And around the Senate as a whole there would be an additional, even stronger, layer of armor. Elections for senators would be held every two years, but only for a third of the senators. The other two-thirds would not be required to submit their record to the voters (or, to be more accurate, to their legislatures) at that time. This last piece of armor made the Senate a “stable institution” indeed. As a chronicler of the Senate was to write almost two centuries after its creation: “It was so arranged that while the House of Representatives would be subject to total overturn every two years, and the Presidency every four, the Senate, as a Senate, could
never
be repudiated. It was fixed, through the staggered-term principle, so that only a third of the total membership would be up for re-election every two years. It is therefore literally not possible for the voters ever to get at anything approaching a majority of the members of the Institution at any one time.” Randolph’s
desiderata
—“firmness” and “independency”—are picked up repeatedly in the convention’s deliberations; over and over again it is emphasized that the Senate must be firm and independent. And the firmness about which the delegates were talking was firmness and independence against public opinion. That, for example, was Alexander Hamilton’s rationale for vesting in the Senate the power to try impeachments:

Additional armor was bolted into place. Some of it was to emphasize the difference between members of the Senate and members of the House; because, as Madison explained, “the senatorial trust… requiring greater extent of information and stability of character, required at the same time that the senator should have reached a period of life most likely to supply those advantages.” A man could become a member of the House of Representatives at the age of twenty-five; he could not become a senator until he was at least thirty—and, “as the Senate is to have the power of making treaties and managing our foreign affairs,” and consequently “there is peculiar danger and impropriety in opening it to those who have foreign attachments,” a senator was required to have been a citizen for longer—nine years instead of seven. The coat of constitutional mail bolted around the Senate was sturdy indeed—by design. Under the new Constitution, the power of the executive and the power of the people would be very strong. So to enable the Senate to stand against these powers—to stand against them for centuries to come—the framers of the Constitution made the Senate very strong. Wanting it to protect not only the people against their rulers but the people against themselves, they bolted around it armor so thick they hoped nothing could ever pierce it.

A
ND FOR MANY YEARS
the Senate made use of its great powers. It created much of the federal Judiciary—the Constitution established only the Supreme Court; it was left to Congress to “constitute tribunals inferior,” and it was a three-man Senate committee that wrote the Judiciary Act of 1789, an Act that has been called “almost an appendage to the Constitution.” The Judiciary Act established the system of federal, circuit and district courts, and the jurisdictional lines between them, that endure to this day, and established as well the principle, not mentioned in the Constitution, that state laws were subject to review by federal courts. And when, sixteen years later, this new creation was threatened by a concatenation of the very forces the Framers had feared—presidential power and public opinion—the Senate saved the Judiciary.

The desks (there were thirty-four of them by 1805) had been removed for this occasion, and the Old Senate Chamber had been arranged as if it were a tribunal. In the center of one wall stood the chair of the presiding officer, Vice President Aaron Burr, as if he were the chief judge, and extending on his right and left were high-backed, crimson-covered benches, on which the senators sat, in a long row, judges in a court from which there was no appeal.

Before them, flanked by his lawyers, sat the accused—a tall, bulky, white-haired
man with a face so ruddy that he was called “Old Bacon Face,” but with a mind and tongue so keen that he was also called “the Demosthenes of Maryland.” He was Samuel Chase, a justice of the Supreme Court of the United States, on trial for his opinions.

A President, maneuvering through his allies in the House of Representatives, had brought him there—a President at the zenith of his popularity. In November, 1804, Thomas Jefferson had won re-election by a landslide, taking 162 of 176 electoral votes and leading his Republican Party to overwhelming majorities in both House and Senate. “Rarely was a Presidential election better calculated to turn the head of a President, and never was a President elected who felt more keenly the pleasure of his personal triumph,” wrote Henry Adams, who was of course no admirer. “Such success might have turned the head of any philosopher that ever sat on a throne.” Whether or not Jefferson’s head was indeed turned, the President now focused his attention on the lone branch of government still dominated by the Federalists, resorting, in Schlesinger’s words, “to impeachment as a way of ridding the federal bench of judges whom he considered dangerous to his views.” The Republicans succeeded in removing an alcoholic federal district judge in New Hampshire, and on the same day the New Hampshire verdict was handed down, the Republicans turned to a bigger target—Chase. And if Jefferson hit this target, it was widely believed, he would move to a bigger target yet: Chief Justice John Marshall, whose decisions had been angering the President.

As a young man, Chase had been a fiery leader of the Sons of Liberty, a signer of the Declaration of Independence, a member of the Continental Congress. He was a fierce and outspoken Federalist, whose handling of some cases since his appointment to the Supreme Court by George Washington has been called “outrageously high-handed,” but, as the historian Dumas Malone has written, “he towered in the Supreme Court, both physically and intellectually.” He had undoubtedly committed judicial excesses, but these were not the real issue, as was clearly revealed by Jefferson’s key senatorial representative, William Giles of Virginia. Impeachment, Giles contended, was “nothing more than enquiry, by the two Houses of Congress, whether the office of any public man might not be better filled by another”; a conviction for impeachment, Giles said, need imply neither criminality nor corruption but only “a declaration by Congress to this effect: you hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation.” Mere error in a judge, he was saying, was sufficient grounds for removal from office. Chase’s conviction would have established a precedent that would have undermined the independence of the courts, and thereby endangered justice itself. Yet few doubted that Chase would indeed be convicted. The move to purge judges possessed of “dangerous opinions” was gathering momentum—in Pennsylvania, for example, the Jeffersonian-dominated lower house of the state legislature had recently impeached three justices of the state’s Supreme Court whose views were too Federalist for the legislature’s taste. And in
Congress, the discipline of the Republican majority appeared ironclad—as was demonstrated in the House vote to send the articles for Chase’s impeachment on eight counts to the Senate; the resolution was presented as a strictly party measure, and, in the 73–32 vote, not a Republican voted against it. Two-thirds—twenty-three votes—of the thirty-four in the Senate were necessary for conviction, and twenty-five of the senators were Republicans; even if no Federalist voted against Chase, there would be enough votes to give Jefferson his conviction. A tide of public opinion, backed by presidential power, was sweeping the country.