After returning from France in 1789, Thomas Jefferson reputedly asked George Washington, while they were having breakfast one morning, why Washington had agreed to the creation of the United States Senate in the Constitution. Noting the saucer on which Jefferson’s hot coffee, or tea, rested, Washington explained, “we pour our legislation into the senatorial saucer to cool it.” No one knows if this story is really true, but it nonetheless nicely captures what the Framers hoped to achieve in establishing the United States Senate.
Most importantly, as reflected in Article I, Section 3, the Framers designed the Senate, like they had other fixtures within the Constitution, such as the Electoral College and the judiciary, to be counter-majoritarian. The Framers’ distrust of tyrannies extended to popular majorities, and the Senate was originally constructed and empowered to function in ways that frustrated direct democracy and kept the House of Representatives in check. Whereas the Constitution provided that members of the House of Representatives would each be elected by popular majorities in their respective districts, the Constitution originally treated Senators quite differently. In the original design, Senators were chosen by their respective State legislatures; indeed, as a result, they were subject to instruction and recall if they did not do what their legislatures told them to do.
Moreover, the Constitution provides, in one of the most important compromises forged at the Constitutional Convention, that each State has two Senators in the Senate, regardless of the size of its population. This feature ensured each of the small States, such as Delaware, would wield as many votes as each of the larger ones, such as New York. The Constitution thus gave small States the means to protect themselves from having their interests and sovereignty overrun by the large States.
The idea behind the Constitution’s ensuring Senators were not subject to direct pressure or retaliation from popular majorities is facilitated further through the length of the terms and the requisite qualifications for Senators, which are also set forth in Article I, Section 3. Whereas the Constitution provided the minimum age for membership in the House of Representatives to be 25 and for every seat in the House to be up for re-election every two years, it provided for the minimum age for serving in the Senate to be 30 and for Senators’ terms to last for six years. The relatively higher minimal age requirements for Senators and longer lengths of Senate terms were designed to increase the likelihood that Senators would be better educated and more disposed than their House counterparts to take the long view on important issues.
The different powers of the House and Senate further reflect the Framers’ hopes for the Senate’s disposition toward the implementation or protection of classical republican values, such as ennoblement through public service. So, the Constitution did not vest the House of Representatives with the power to complete any legislative action—apart from its powers provided elsewhere within Article I—to issue rules for its internal governance, to judge its members’ elections and returns and qualifications, and to expel members for disorderly conduct, as provided elsewhere. Even with its “sole” power to impeach, the House may only initiate a legislative action but must depend on the Senate to complete the job, whether it entails enacting a law or convicting and removing a high-ranking official, such as the President, for serious misconduct in office.
In Article I, Section 3, the Constitution, quite deliberately, vests the Senate with the authority to undertake four specific actions, none with the formal input or approval of the House, including providing advice and consent to presidential nominations, ratifying treaties, conviction and removal of high-ranking officials for misconduct, and approving constitutional amendments. The requirements that three of these may be done only pursuant to super-majority votes—ratifying treaties, amending the Constitution, and convicting and removing high-ranking officials for misconduct—are designed, as James Madison explained in The Federalist No. 58 as a “shield to some particular interests, and another obstacle generally to hasty and partial measures.”
The ratification of the Seventeenth Amendment in 1913, however, transformed the Senate. By making Senators subject to popular election in their respective States, it effectively democratized the Senate and, in doing so, abandoned one of the critical differences between the House and the Senate—namely, Senators’ dependence on and allegiance directly to their States. This transformation weakened one of the strongest connections between Senators and their States as sovereign entities; it made it easier for Senators to pay less attention to local or state leaders’ concerns about federalism and more prone to follow the popular will, even if it meant sacrificing State sovereignty. It is no coincidence, many scholars believe, that it was after the ratification of this transformative Amendment that the Senate joined the House in expanding to unprecedented degrees the size and scope of the federal government, all at the expense of State sovereignty. With this Amendment firmly in place, these scholars argue further, there is no turning back of the transformation it wrought.
The United States Senate is the lynchpin of the American constitutional system, and it is the most powerful upper chamber of any bicameral legislature in any country in the world. The Constitution confers on the U.S. Senate legislative, executive, and judicial powers. Article I, Section 7 makes the Senate fully co-equal to the House of Representatives when it comes to making laws, which is the essence of the legislative power. No bill can become a law without the Senate’s consent, and presidential vetoes of laws can be overridden only with the consent of two-thirds of the Senate.
Article II, Section 2, however, also confers on the Senate a share in the executive powers of appointment and treaty-making. The Senate must consent before any high executive or judicial branch officer can be appointed to office. Similarly, no treaty can be made by the President without the approval of two-thirds of the Senate.
Finally, Article I, Section 3 also gives the Senate the exclusive judicial power to try all cases of impeachment of the President, the Vice President, or any other civil officer of the United States. By a two-thirds vote, the Senate can remove any of these officers after conducting a trial.
The Senate combines in itself the legislative, the executive, and the judicial powers, and thus drew the censure of those Anti-Federalists who agreed with Montesquieu that any such a combination of powers constitutes the very definition of a tyranny. James Madison devoted four Federalist Papers: The Federalist Nos. 47 through 51, to refuting the Anti-Federalist argument that the Senate was a dangerous institution. Madison argued that the principle of checks and balances is even more important than the separation of powers to the preservation of constitutional government. “Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place.”
Time has proven Madison right. Whereas all other separation of powers presidential democracies in Latin America, Russia, Indonesia, South Korea, and the Philippines have degenerated into presidential dictatorships, the U.S. system of checks and balances has thwarted presidential and Supreme Court abuses of power many times in our history. The Senate is quite simply the single most powerful institution created by the Constitution of the United States.
The Senate, and the federal courts—which the Senate plays a role in picking—are decidedly the most oligarchic entities created by the Constitution. Popular election of the President through the mechanism of the Electoral College makes it possible for a demagogue or a would-be tyrant to be elected to the presidency. Similarly, the House of Representatives, the members of which serve only two-year terms, can easily be swayed by the passions of the moment. The Senate and the federal courts stand as a firm bulkhead against populist Presidents and transient majorities in the House of Representatives. Senators serve a lengthy six-year term and federal judges have life tenure whereas the President serves only a four-year term and the members of the House of Representatives only a two-year term. Only one-third of the members of the Senate come up for re-election every two years while changing a majority on the Supreme Court is a 12 to 16 year project as to which the Senate must consistently concur.
Why did the Framers of the U.S. Constitution who were committed to creating a republican form of government choose to give the Senate so much power—more power even than is possessed by the House of Representatives, which is the people’s house? The answer can be found in the Framers’ admiration for the writings of Aristotle, Polybius, Cicero, St. Thomas Aquinas, and Machiavelli. All of these political philosophers argued in favor of Mixed Regimes over monarchies, aristocracies, and democracies as being the most conducive to human flourishing, safety, and happiness. See Steven G. Calabresi, Mark E. Berghausen, & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Northwestern Univ. L. Rev. 527 (2012).
The advantage of a monarchy was that it offered decisive leadership in foreign policy and in times of war as well as offering a national check on avaricious domestic factions. The disadvantage of a monarchy, as Aristotle and Polybius explained, was that it usually degenerated into tyranny—the unjust rule for the selfish benefit of one person.
The advantage of an aristocracy according to Aristotle and Polybius was that it offered rule by the wisest, most virtuous, and the best people in the country. The disadvantage of any aristocracy was that it usually degenerated into its corrupt form, which is oligarchy—the unjust rule of a few people for their own personal benefit.
This essay is part of a discussion about Article I, Section 3 with Michael J. Gerhardt, Samuel Ashe Distinguished Professor in Constitutional Law & Director, Program in Law and Government, University of North Carolina School of Law. Read the full discussion here.
The advantage of a democracy according to Aristotle and Polybius was that it offered common sense government and a high degree of personal liberty. The disadvantage of a democracy was that it usually degenerated into mob rule—the unjust oppression by 51 percent of the public of the other 49 percent.
The solution to these problems according to Aristotle, Polybius, Cicero, St. Thomas Aquinas, and Machiavelli was to create a Mixed Regime of the One, the Few, and the Many—thus obtaining the benefits of each regime type while minimizing the chance of regime degeneration. The Framers’ Constitution thus creates a Mixed Regime—of the One President, the Few in the Senate and on the Supreme Court, and the Many in the House of Representatives, which is as powerful as a monarchy in foreign affairs, as wise as an aristocracy in preserving fundamental rights, and as free and as full of common sense as a democracy in exercising its powers. Since 1913, it can truly be said that the United States has had a democratized Mixed Regime in which power is divided and balanced among the One, the Few, and the Many with the Many ultimately electing both the One president and the Few in the Senate who in turn select the Few who serve in the federal courts.
What then is left of the separation of powers into legislative, executive, and judicial power? The answer is that the Few and the Many in the Senate and in the House of Representatives can exercise only the legislative power except where the Constitution specifically provides otherwise—as it does in giving the President a qualified veto power. The separation of powers, the Madisonian system of checks and balances, and the division of our republic into a popularly selected Mixed Regime of the One, the Few, and the Many are all reflections of the American dedication to Lord Acton’s dictum that “[p]ower tends to corrupt and absolute power corrupts absolutely.”
The Senate is not only a key balance wheel in the function of the national legislature, executive, and judiciary, but it is also a key balance wheel in the functioning of the American system of federalism. Because each state has two and only two Senators no matter how big is the population disparity between them, the Senate plays a huge role in protecting the less populous states from the most populous ones and in the policing of federalism boundary lines. This is even more true when one factors in, as one must, the Senate’s central role in confirming Supreme Court justices and other federal judges.
James Madison, in The Federalist No. 62, defends bicameralism and the Framers’ decision to create the Senate by arguing that the long term of Senators will ensure consistency and continuity in government policies, which is desirable because it reduces the risk factor in investments, and it produces a stable and reliable foreign policy. The Senate, however, does much more than producing stability and consistency in legislation. It also acts as the most powerful check and balance on the President and the federal courts.
Barbara Sinclair sums up succinctly the key features of the U.S. Senate in Senates: Bicameralism in the Contemporary World 3 (Samuel C. Patterson & Anthony Mughan eds., 1999). Sinclair says that “[t]hree characteristics make the U.S. Senate unusual among upper chambers: it shares legislative power equally with the House of Representatives; it operates under a set of rules that vests enormous power in each senator; and when majorities rule in the Senate it is only by leave of minorities.” The operating rule of the Senate is that debate on legislation can continue indefinitely, unless 60 Senators vote to end by voting for cloture. The Senate is thus the only legislative body in the world that we are aware of that does not operate by majority rule.
These features of the Senate make it even more deliberative, aristocratic, and oligarchic than one would expect merely from reading the text of the U.S. Constitution. It is all of these features of the Senate taken together that render it the lynchpin of the American constitutional system.
The Senate is widely viewed with more disdain and less respect today than it has at any other time in American history. It is common to look back upon the nineteenth century as a golden era in which the Senate was widely viewed as the home of great orators and great statesmen— such as Henry Clay of Kentucky—and monumental debates—such as the great debates over protectionist tariffs in 1830 and the Compromise of 1850, which featured memorable speeches by Clay, Senator Daniel Webster of New Hampshire, and Senator John Calhoun of South Carolina. Today, few if any people think of any sitting Senators as great orators or great statesmen. Today, almost no one expects more from the Senate than the House, which even the Framers had viewed with disdain.
The Senate’s demise in stature is likely attributable to many factors, but the one that is cited the most is the Seventeenth Amendment. Ratified in 1913, the Seventeenth Amendment replaced the Constitution’s original scheme of having state legislatures choose Senators with the establishment of popular election of Senators. Many scholars have argued that this Amendment effectively broke the Senate’s connection to States’ interests and that Senators have ever since increasingly taken State sovereignty or federal overreaching less seriously than they presumably did before the Amendment’s ratification.
The Supreme Court has not embraced that view, at least fully. It has cited, more than once, the changes wrought by the Seventeenth Amendment—along with other developments such as the increase in the size (and authority) of congressional staffs, the growing influence of lobbyists and special interests, and the need to be perpetually raising money to stay in office—as necessitating judicial review in order to protect against flaws within the federal legislative process that could lead to congressional overreaching at the expense of State sovereignty. In another line of cases arising under the Eleventh Amendment, the Court has consistently struck down federal laws forcing States to relinquish their immunity from paying damages in federal court. The Court has also overturned federal laws commandeering any part of state government from doing something contrary to its will. Even if the Seventeenth Amendment weakened the connections between the Senate and State interests, the Court still seems to care a great deal about the latter.
Moreover, there have been great debates since the Seventeenth Amendment’s ratification and great moments, such as the enactment of the landmark 1964 Civil Rights Act, the 1965 Voting Rights Act, and the Clean Air and Water Acts, albeit all at the expense of State sovereignty. Whatever the changes wrought by the Seventeenth Amendment might be, other factors apparently have contributed more to the diminution of the Senate’s stature.
One theory is the rise of corruption. As David Brooks, the New York Times columnist, explained, “There is so much money flowing through Washington that the special interests get what they want and everyone else gets the shaft. Another theory has to do with insularity. The elites spend so much time within the Acela corridor that they don’t have a clue about what is going on.” Brooks might be right, but these explanations, too, have much in common with our past, as there were many Senators in the nineteenth century who were corrupt and who lived as elites.
Brooks argues another, “deeper” problem with the Congress, including the Senate, is the fact that public servants now find themselves “enmeshed in a system that drains them of their sense of vocation.” The problem, on his view, is that public servants have too often become professional politicians rather than people who are answering a calling—the calling of doing something for the common good. His argument extends to all public servants, not just Senators, but there is some reason to believe that today Senators rarely are more than—Senators. Daniel Webster, for example, was one of the greatest lawyers of the nineteenth century—he argued more than 100 cases in the Supreme Court while serving in the House of Representatives at different times as a representative from New Hampshire and Massachusetts, in the Senate, and as Secretary of State under three different presidents. One is hard pressed to find anyone in the Senate coming close to the standard set by Webster.
The idea that Senators might have fallen prey, along with House members and other public servants, to a system that drains or dilutes their passion for the common good is likely to resonate with many people, though it is unclear to what extent the Seventeenth Amendment is the cause. The length of service in the Senate has increased over the years, while the Senate’s productivity has hit new lows. This decline has coincided with increases in voting along party lines and, perhaps as a result of all these factors, the proliferation of procedural obstacles to getting things done. With increased demands for action, the Senate has responded with more obstacles. The number of veto gates has increased, so that it has become harder, not easier, for legislative business, including judicial and other nominations, to get to the Senate floor for final debate.
For example, the filibuster grew increasingly effective over the twentieth century as a way for substantial minorities within the Senate to block floor votes on a wide variety of matters, including civil rights legislation. To be sure, the filibuster was a potent weapon throughout Senate history, famously blocking final Senate votes on major civil rights legislation for more than a century. What might have made the filibuster worse than ever before was the so-called two-track system, which then-Majority Leader Mike Mansfield implemented in 1975. It allowed the mere threat of a filibuster to sidetrack legislative business, including nominations. The way it worked was that, once nothing more than a threat was made, the matter being threatened was set aside, and other legislative business went forward. That scheme undoubtedly provided incentives to filibuster, and judicial filibusters increased throughout the 1990s and the administration of George W. Bush and the first term of President Obama.
This essay is part of a discussion about Article I, Section 3 with Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law, Northwestern Pritzker School of Law. Read the full discussion here.
The decision by the Democratic Senate majority in 2013 to disallow filibusters of judicial and executive branch nominations has removed one obstacle to judicial confirmations, but Senators in the majority retained many other procedural mechanisms for obstructing nominations. The confirmation of lower court judges has reached an all-time low, not because of the filibuster and not because they lack merit, but rather because a majority in the Senate that is controlled by one party has decided, in an election year, to deny the President of the opposite party the opportunity to fill any more judgeships, including the Supreme Court.
Yet that is not all. In order to keep the President from exercising his power to make recess appointments, the Senate began the practice, while George W. Bush was President, of holding pro forma sessions—incredibly brief sessions, rarely more than 30 seconds, allowing the Senate to call itself into a formal session every other day, even though most Senators are away or on break. Though the Supreme Court upheld the constitutionality of this practice in NLRB v. Noel Canning (2014), the practice is controversial. To some, this kind of obstruction is welcome because it preserves the constitutional status quo, at least until the next election. To many others, pro forma sessions seem like nothing more than a parliamentary gimmick, which enables the Senate to block a President’s recess appointments for no better reason than that the Senate has the power to do so.
While the Senate has historically been a place where even important legislative business often got slowed down if not sometimes blocked permanently, it now rarely happens in a way that involves Senate debate or that the public can see. This is true even though there is unprecedented coverage of the Senate through C-SPAN and the Internet. The opportunity for great debates has shrunk, grandstanding has increased, and the motives of the obstructionists do not always seem noble. And the constant coverage of the Senate does not guarantee many people are watching the Senate closely. The 24-hour news cycle and the proliferation of Internet news sites have generally made it easier for people to reinforce their political and constitutional views. Even so, most people are probably unfamiliar with the shenanigans in the Senate or do not care, and most people do not, as far as we can tell, tune into Senate debates or follow them closely.
Whatever one thinks of the Senate, it is almost certainly here to stay—and to stay in its present form. This includes the rather archaic configuration in which every State has two Senators, regardless of its size. As our joint essay suggests, this scheme is undemocratic and purposely frustrates pure majorities, but it has been an enduring feature of the Constitution from the beginning. While this might not prevent the Senate from sometimes endorsing measures that might enhance federal power at the expense of State sovereignty, it continues to frustrate lawmaking generally, which of course was one of the aims of the original design.
If the Senate, however, has not adequately protected State sovereignty, it has not done it by itself. Nothing becomes a federal law, unless the House has agreed, the President signs the bill (or Congress is able to override his veto), and the courts have upheld the measures. Similarly, no one becomes an Article III judge, particularly after the scheme adopted by the Senate to frustrate the recess appointment authority, unless the President has nominated that person in the first place and a majority of the Senate has agreed. Changing the status quo, in other words, cannot happen unless the branches are in agreement. It will be important to keep that in mind in the years ahead, regardless of whether one favors obstruction or not. Controlling one chamber makes obstruction possible, but if there is serious interest in doing anything more than that then there must be coordination, which, even after the ratification of the Seventeenth Amendment, the Constitution rarely makes easy.
As for whether the Senate has degenerated in stature or quality, the causes remain complex and are not simply the result of the Seventeenth Amendment. Among the things that may have been lost and difficult to restore is the civic republicanism—the public spirit or commitment to a common good—so many Founders had hoped to see in the Senate. Along with that loss, a sense of civility or mutual respect seems, all too often, to be absent in public debates. To be sure, we should not over-glamorize our past and over-estimate how much of that spirit ever was a constant or common feature of the Senate; the beating of Massachusetts Senator Charles Sumner on the Senate floor in 1851 is just one example of how that spirit was absent before the Seventeenth Amendment. At least, Senators today fight with words and not with weapons.
It is likely that the fighting in the Senate reflects the divisions within the populace itself. This should not be surprising. It is inevitable that, given popular election of Senators, the electorate will choose someone with similar views. It is further inevitable that the more intense the divisions, the more difficult finding common ground may be. Even so, we should hope it is not asking too much for Senators to be seen at work—that is, to be seen by the public actually engaging with the big issues of the day—and not parliamentary maneuvering reflecting nothing more than petty or partisan bickering.
It is unlikely we have ever had a genuinely golden era in which the Senate—or any other of our institutions—performed ideally. We know that, from the start, the Constitution was not a perfect document, and every era, as well as every institutional arrangement established by the Constitution, has had its flaws. The least we can do is to understand them and see what can be done to solve them. Put differently, the Senate has never been able to take its stature as the upper chamber for granted. Like every other institution established by the Constitution, the Senate has had to earn its respect each and every day, and that remains true regardless of the era, political composition of the Senate, and issues dividing the American people.
Two teams of leading constitutional scholars—team libertarian and team progressive—present their ideal constitutions.
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