Federalist 62 Explained | What Is The Role Of The Senate?

0:00 Hello and welcome back to the Bill of Rights Institute’s Primary Source Close Reads. This week we’re going to be taking a look at Federalist Number 62, which explores Publius’ arguments for the Senate and what its role is in the Constitution. Let’s take a look. So before we look at the specific document, let’s remind ourselves in the historical context.

0:22 So The Federalist Papers were a series of essays written during the ratification debates after the Constitution was written in Philadelphia in 1787. The debates were over whether or not the country would adopt the Constitution as the new governing document for the national government of the United States. They were written by three men Alexander Hamilton, James Madison, and John Jay, who collectively call themselves Publius.

0:46 I have a video that looks at an overview of the entire argument of The Federalist Papers, and if you want to check that out, we’ll link it below. But this week, we’re only going to be looking specifically at Federalist Number 62, where Publius outlines the design, the reasons for the design of the Senate and what they’re trying to accomplish from a constitutional perspective with that body.

1:06 So we have these two big questions today. First, what is the role of the Senate? So what’s going on with this body? And how does Publius argue that the Senate will fulfill this role? So it’s one thing to say, all right, this is what it’s going to do, but now it’s going to prove why it is that this body specifically and what the Constitution has built into it is going to do what he says it’s going to do. So really quickly, let’s remind ourselves of where we are in The Federalist Papers.

1:28 And again, I have a video that explores this whole thing. Today we’re looking at the part of the argument that is number four here. So we’re looking at the conformity of the proposed Constitution to the true principles of Republican government. In other words, we think it’s important. Publius argues that this is a Republican form of government, meaning it’s representative of the people’s will and the people are consenting to the laws. And here he’s arguing for why this upholds why this system upholds to that design.

1:54 And so we’re going to take a look at why it is that he says the Senate is fitting with this Republican construct. So Publius starts here, having examined the Constitution or construction of the House of Representatives and answered such of the objections against it as seen to merit notice, I entered next on the examination of the Senate. So he’s basically saying, look, we’re going to take a look at the Senate and I’m going to tell you how it is that it’s constructed and why it’s constructed in the way that it is.

2:17 And he outlined sort of his roadmap here and we’re going to come back to this later on to make sure that he covers all these different points. But he says we’re going to look at the qualification of the Senators, we’re going to look at why they’re appointed by state legislators. We’re going to look at the equality of representation in the Senate. So why is it that every State gets two Representatives, then we’re going to look at the number of Senators and the term for which they are elected.

2:37 So why is there two and why are they elected for the term that they are elected for? And then finally the power is vested in the sense so what powers does this body have? So he starts here with number one, the qualifications proposed for Senators as distinguished from those Representatives, consistent a more advanced age in a longer period of citizenship.

2:59 So he was referring to in the Constitution it says the Senators must be 35 years of age and have been a citizen for at least nine years. That’s both older and longer than they asked for the House of Representatives and basically saying, well, why is that? And here he says it’s because the propriety of these distinctions is explained by the nature of the Senatorial trust.

3:20 So this body, the Senate, is seen as the one that needs to have more trust placed in it. And I only have experts throughout this. So he goes on to explain some more detail, but essentially what his argument is, look, because this is going to be a body that is dealing with more serious things like for example, foreign policy, we want people to have more experience, be a little bit older,

3:42 be a little bit more stable in the way that they’re going about this. And that is why, because we need that body to have trust. Having those older individuals in this body will promote that trust. And so therefore, this body will be more trusted in making those decisions. We’re going to come back to these qualifications in a little bit. But for right now, he’s saying the biggest thing is trust.

4:03 You got to trust in this body because of what it’s going to be able to do. Having these different restrictions on how these people are qualified for the office allows us to facilitate that trust. So then, number two, it is equally important to dilate on the appointment of Senators by state legislatures. Here dilate just means I’m going to expand upon this and talk about it. So why is it and remember, when the Constitution was originally

4:25 written and ratified, state legislatures would pick who the Senators were. That was changed at the 17th Amendment, where now we directly elect our Senators. So people go out to the polls and vote and we choose who our Senators are in our states. But when the Constitution was originally ratified, it was the state legislatures that chose. So the people were not directly involved.

4:47 They were indirectly involved because they elected the members of their state legislatures. But those state legislatures were the ones that chose to decide. And here’s the thing, why that is because among the various modes which might have been devised for constituting this branch of government, that which has been proposed by the convention is probably the most congenial with the public opinion. In other words, people like this idea of state legislators choosing who their senators are.

5:10 It is recommended by the double advantage. So there’s two reasons why I did of favoring a select appointment and of giving the state government such an agency in the formation of the federal government as much secure the authority of the former and may form a convenient link between the two systems. So unpacking that what he’s essentially saying is that there are two advantages.

5:32 One is that it gives state government’s agency, in other words, the state government now has a direct representative that’s going to represent their interests. So if we’re worried about the federal government becoming consolidated or in other words, the state is getting erased because the federal government is all powerful, you don’t have to worry about that because the state governments have a representative directly in there.

5:53 And if someone is voting to get rid of the state governments for some reason they’re going to be recalled by the legislature. He also says that the advantage that the selective appointment here he’s talking about typically who is going to be the person who is chosen by the state legislature, was going to be somebody that is prominent within the state itself. State legislators not just going to pick some random guy or gal,

6:14 they’re going to pick someone who is going to be representing their interests in a way that is someone that’s respectable, that’s respected amongst the community, or is at least respected widely enough amongst the community to get a majority of the state legislatures to put them into this office. Now, how that played out in history we’ll leave to one side. It’s an interesting thing to think about,

6:35 but the powerful thing to think about here is what does it mean for the state to have a representative directly in the federal government? All right, so now we’re on number three, which is the equality of representation in the Senate. So the equality of representation is another point, which being evidently the result of compromise between the opposite pretensions of the large and small states. So I’m sure you’ve read about and heard

6:57 about and talked about the large states and the small states. So we’re talking about states like New York where these are being written and published, or Virginia. Those are the big states, lots of population, lots of economic power. And then the small states like Delaware for example, which is smaller, lower population. A big concern at this time is how they’re going to balance between these big states and small states when it came to representation, when it came to interests being represented.

7:18 How do you have a big government that’s going to oversee all of this and yet represent those two interests? What he goes on to say here is that basically, no matter what was going to happen, this was going to be contentious and it was going to be tough to get a government that was going to represent the needs of all of this. And he says something interesting. He said the government found the principles more consonant to the wishes of larger states.

7:41 And here he just means any government that’s going to be protecting of the interests of large states over small states isn’t going to work out because the small states are never going to join onto that. The only option then is for the proposed government must be something that’s more objectionable. So in other words, if you’re not going to agree with this plan, it’s going to be worse.

8:01 Small states might have more representation, or you can choose this plan. And here he says, embrace the lesser evil, which I think is pretty interesting way of phrasing that. I’m saying that instead of indulging the fruitless anticipation of the possible mischiefs which may ensue to contemplate rather the advantageous consequences which may qualify to sacrifice,

8:23 it’s a complicated way of saying to his audience, listen, you’re going to be really concerned about how this is going to play out, but honestly, it’s the best deal you’re going to get. And if you just commit yourself to this, we can sit down and talk through why this is actually going to be an advantage to you, even though you’re going to be concerned about how this could play out. And again, he’s writing this in a big state in New York.

8:45 You could imagine New Yorkers are going to be concerned that their interests are going to be represented if they are limiting themselves in how it is that they’re being represented equally with the small states. He’s saying, look, relax, and also let’s talk about how this is going to be advantageous for you. And so he goes on to say, in this spirit may be remarked that the equal vote allowed to each state

9:05 is at once a constitutional recognition of the proportion of sovereignty remaining in the individual states and an instrument of preserving that residuary sovereignty. So in other words, look, the fact that all the states are represented equally shows that they’re all on equal footing. No one state is above any other. Okay? So that’s important. Second is it’s a method for maintaining that equality.

9:26 So because everybody’s got the same amount of votes and the same amount of representation, and again, like we talked about just before, the state interest is represented at the federal level, all of these states are going to be maintaining that equal sovereignty amongst each other. Then it goes on to say, another advantage accruing from this ingredient in the Constitution of the Senate is the additional impediment

9:48 it must provide against improper acts of legislation. No law or resolution can now be passed without the concurrence first of a majority of the people and then a majority of the states. So again, we’re talking about that representation of the states in the national government here. He’s saying that that is the majority than the majority of the states. The states are going to approve of all legislation.

10:08 So are the people. And that is when he was talking about the House of Representatives. House of Representatives are the direct representation of the people’s. will according to Publius’ argument here, and in his argument, he’s saying that the people can vote and have their voices heard in the states. Vote and have their voices heard. And now you have these two bodies that are checking each other, keeping each other in balance and making sure that all of the interests are being represented.

10:30 And he said overall, that’s going to be a good thing. And that comes about precisely because of this compromise that has this equal representation among the states. All right, so now we’re onto our fourth point, which is sort of a mouthful, but it says. Number of Senators and the duration of their appointment. All right? So we’re talking about the number of Senators total. So why this body is made up of the way that it is, with each state receiving two

10:53 representatives and also the duration of their appointment. So why a six year term? Anything says in order to form an accurate judgment of both these points, it will be proper to inquire into the purposes which are to be answered by a set. Okay, Publius is saying, look, for me to tell you why it’s only two per state and we have that number and why it is a six year term. I’m going to tell you why a Senate exists

11:14 in the first place, which is interesting, but I think what he’s setting up here is an argument for why this body is constituted the way that it is. Remember, we’re talking about how this is all conforming to the republican form of government. And now we’re going to talk about why the Senate is constructed to help us obtain that republican form of government. First, it is a misfortune in incident

11:34 to republican government, though in a less agreed than to other governments, that those who administer it may forget their obligations to their constituents and prove unfaithful to their important trust, he says. In this point of view, a Senate as a second branch of the legislative assembly, distinct from them, dividing the power of the first, goes on, says a lot more words. What he’s saying here is, look,

11:56 there are times when legislative bodies will not follow the will of the people. And so if we have two separate legislative bodies, they can check each other. And so if one is not representative of the people’s will or of the common good or whatever it may be, having a second body there to check it is important. So again, we’re talking about why we have a Senate in the first place.

12:17 It can make sure that there’s two bodies that this has to pass through, he says. Secondly, the necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions and to be seduced by a factious leader into intemperate and pernicious resolutions. All that needed to be remarked is that a body which is to correct this

12:40 infirmity ought itself be free from it and consequently ought to be less numerous. It ought, moreover, to possess great firmness and consequently ought to hold its authority by a ten year of considerable duration. All right. So the House of Representatives, if we remember, is two year terms. The Senate is six. And what he’s saying is when you have that constant turnover and that the passions that come

13:00 from the people are more prevalent because they’re getting elected every two years. So they have to be paying attention very closely to what it is that the popular opinions are. What the will of the people is and they need to be very responsive to that. He’s saying that that’s good in a certain sense because it’s representing the people. But we also need to be cautious about it because passions, we can run away with it.

13:23 You have, we call it your faxious leaders in temperate and pernicious resolution. So these are going to be things that are done in the spur of the moment, but may not be things that we’re taking a step back and thinking about. He’s saying that what the Senate is going to do with its longer term and less people involved is give us the space and the time to actually think through whether or not this legislation is going to be good

13:44 and at least hopefully give us a check against some of those passions so that we can develop out of it and we get better long term solutions. Thirdly, and he’s building on these things as he goes along. So he’s saying, look, we want to have this small body. It’s going to be more deliberative, it’s going to bring about more reason there’s. Another defect to be supplied by a Senate

14:05 lies in the want of due acquaintance with objects and principles of legislation. So here third, he’s saying, look, if you have people who are in there for longer, they’re going to understand a little bit better what it means to actually put together legislation. So he qualifies. He says good government implies two things. First, fidelity to the object of government, which is the happiness of the people, and secondly,

14:26 knowledge by the means by which that object can be best attained. So in other words, government should be working towards a solution that is going to benefit the most amount of people within society or is going to benefit the common good of society is another way of saying that that’s great, but how do we obtain it? Well, it’s easy to want to achieve that good thing.

14:47 It’s a lot harder to actually accomplish it. How do we accomplish it with people who have experience in doing this legislation so they know how to create it and craft it and work on it so that it moves the country towards those greater aims and hopefully benefits us and experience is the way to achieve that greater understanding. And he’s saying that the experience of a senator being in office for six years will make that more possible.

15:09 Then finally, he says, fourthly, immutability of public councils arising from a rapid succession of November, however qualified they may be, points out in the strongest band of necessity of stable institutions of government. All right, he’s going to really expand upon this. But what’s important here is that stability in government is an important thing. So thinking back again, we need to have smaller group of people who are thinking through this to make sure that it’s reasonable.

15:32 And we need that both because they have experience and they have more distance from the passions of the people so they can come to these reasons decisions. Why is that all important? What goes back to this idea of trust that we talked about in the first bullet point and here we’re calling it stability. It’s got to be trusted and it’s got to be stable. So why is that stability important? Well, Publius never being short of words, it’s going to tell us in great detail.

15:53 He says first, stability gives us respect and confidence of other nations. So this is the body that’s going to be doing foreign policy and foreign negotiations in consultation with the presidency. And so it’s important that that body is respected. And so for it to be respected, it’s got to be stable. And you can understand this stability just means that you know it’s going to be there, it’s going to follow through on its word,

16:15 it’s going to have integrity and it’s not going to be something that’s changing back and forth between different ideas all the time. It’s something that’s reliable and dependable. Foreign nations will recognize that and so then be more ready to deal with it. So that’s the external effect. He says the internal effects of a mutual policy is still more collaborative.

16:35 So in other words, if you don’t have a stable body, it’s even worse internally. And here he has a really powerful idea will be little available to people that the laws are made by men of their own choice. If the laws be so voluminous that they cannot be read or so incoherent that they cannot be understood, if they be repealed or revised before they are promulgated or undergo such incessant changes that no man who knows what the law

16:59 is today can guess what it will be tomorrow. So in other words, now we’re talking about what it means to actually have legislation and pass things and for that to be understood by the people is important because otherwise it has the ability for it to be manipulated and for it to sort of cause individuals to not know what laws they’re breaking.

17:21 And you can see in a form of government that is constantly changing the laws, you get to a place where you don’t know what the law is, it’s really hard to follow it, but all of a sudden you’re breaking it and all of a sudden you’re in jail. He’s saying here is the Senate offers a safeguard to that because it has this longer process for changing these laws and hopefully by having these more reasoned decisions that it’s coming

17:43 to those laws will stick and be around for a long time. So people can know them and it needs to be representative of their views but it needs to be known by them as being a part of that. Then goes on to say that if you can’t trust the law, it’s also hard for the economy to do well or for people to invest in your nation. So here he says that by saying the want of confidence in public councils dance

18:05 every useful undertaking, the success and profit of which may depend on the continuance of existing arrangements. So in other words, if you’re trying to create a contract, for example, if you can’t trust that the law is going to be around to protect that contract, then you don’t want to invest in have a business here because it’s just too unstable or do any kind of transaction,

18:25 not just economic but any kind of transaction. And then finally he says if it’s unstable people are going to stop trusting in the government and once they stop trusting in the government it becomes basically useless because people aren’t wanting to be a part of it or trust that it’s going to be around in exist. All right. So that was a lot. Let’s recap really quickly. We’re going to talk about qualifications of senators.

18:46 We said qualifications, these qualifications are important because they’re going to help make a body that’s trustworthy. It says all right, so we know we want it to be trusted body so there’s the appointment of them by state legislatures helps them maintain the balance of power between state and federal governments. So here we’re talking about, look there’s representation in the state of the states and the federal government that’s going to maintain the system we call federalism where the power between

19:09 the states and the federal government has its own spheres and that remains stable because the state legislatures are involved in employing them. So the equality of representation in the Senate is good and it was a compromise but it’s a good compromise even though big and small states are both going to come at that from different positions. What he’s saying to this big state in New York, look,

19:29 this is as good of a deal as you’re going to get and it’s beneficial to you because the people and the states are involved in the approval of legislation and that’s going to create a way in which this equal sovereignty is going to be maintained. It’s going to maintain the state system is the number of senators in the term which will be elected, that’s going to stabilize the government and make sure that a stable government is passing reasonable laws and that those

19:52 laws are to be around and known for a long time. And finally he was supposed to talk about the power’s best in the Senate. He never got to it in this paper. So he gets that in the following papers and he goes into it in pretty great detail. But for today that’s all we’re going to cover. So we’ll go back and look at our guiding questions again. What is the role of Senate? Well, as Publius describes it, the role here is to have a more deliberative body that’s taking

20:13 the passions of the people and is trying to come to reasoned decisions based upon that and be a trusted body that is stable, that in a democratic society that is often sort of pulled by the passions of the people. Here you have a stable body that people can trust. And he says that the Senate fulfills that role through all those things.

20:33 We just went over to the qualifications, through its appointment by the state legislatures for its equal representation amongst the states and for the terms that it’s elected to and the number of people that are elected that by. All right, so that was rapid fire. But Federal 62 is really interesting. And again, if you’re going to think about what the Senate’s role is within our constitutional system, it’s really important to nail down.

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