Antifederalist No. 62 ON THE ORGANIZATION AND POWERS OF THE SENATE (PART
1)

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.