Sunday, February 5, 2012

Federalist #66

Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered  (Hamilton)

In Federalist paper #66, Hamilton makes a review of the principal objections against the Senate being the court for the trial of impeachments. The objection is whether the legislative and judiciary functions should be in the same body in violation of the principle of separation of powers. As mentioned before, the true protection of each branch from others is gained by a partial intermixing of authorities. For instance, the power of the President to veto legislation protects the executive branch from encroachment by the legislative from the executive. Also, the impeachment power is divided between the two legislative houses where one initiates and the other conducts the trial with two thirds required for conviction. Hamilton finds it curious that some living in New York criticize the proposed plan because, in New York, a very few will make these decisions whereas in the proposed plan a great many are required.
The second is that giving this power when combined with other powers to make treaties and appointment to offices will result in the body becoming aristocratic and obtaining too much weight. Hamilton raises the question as to what criteria one can determine the proper weight for the senate. Additionally, according to Hamilton, the most popular, the House, is full match if not overmatch for the senate because it has the power to originate money bills, institute impeachments, and umpire in all elections of the President.
The third objection is that, since the senate appoints judges and others, it would hold the appointments in high regard and be reluctant to decide guilt in their impeachment trials. In response, Hamilton believes that this goes against a principle in all governments that those appointed only hold office at the pleasure of those who appointed them and it should be remembered that it is the executive who chooses those for appointment, not the senate so there will be little reason for preferential bias.
The fourth and last objection is about the union with the president in making treaties. Hamilton raises the following question: If the senate conspired with the President in approving a treaty ruinous to the country, what possibility would there be for their punishment? Hamilton’s argument against this objection is based on the fact that two thirds of the senate have to agree to the treaty so that the protection for the public can be in the number and character of those chosen to be senators. Another question raised by Hamilton: How could two thirds of the senate be impeached and found guilty in a trial by two thirds of the senate?

2 comments:

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  2. Hamilton did not perhaps foresee the idea of partisanship that could invade a trial of impeachment in a case where legislative and judiciary function would be in the same body. The Clinton’s impeachment trial is the best case scenario here. One has to agree that politics are very likely to determine how one views the evidence in impeachment case. I think that partisanship in both Senate and House was evident during the impeachment trial of Clinton even though a good economy favored Clinton. Therefore, even when two third of the senate are appropriately advocated by Hamilton, I don’t see the relevance of his argument due the excessive partisanship in an impeachment trial.

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