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?
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ReplyDeleteHamilton 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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