By: Adam White – nationalreview.com – December 19, 2019

We have spent the last several weeks intensely debating the Founders’ view of impeachment. Now that the House has actually impeached the president, it’s time to pay attention to the Founders’ view of the Senate.

We know that a Senate’s trial of impeachments is supposed to be more solemn and impartial than the House’s own impeachment proceedings. Alexander Hamilton stresses this in the now-famous Federalist No. 65. Even House Democrats acknowledged this throughout their process; Chairman Schiff, for example, compared the House’s role to that of a prosecutor’s grand jury, whose job is not to decide whether the accused is actually guilty beyond a reasonable doubt, but whether there is the bare minimum of evidence necessary to charge the accused with a crime. In impeachment, the House’s job is to bring accusations; the Senate’s job is to sit in judgment of the House’s accusations and the official being accused. But how should the Senate actually carry out this constitutional responsibility?

It may seem that the solemn business of an impeachment trial requires the Senate to reconstitute itself temporarily as a different kind of institution — not senators, but judges or jurors — and to conduct itself according to the norms of a court trial, with each member maintaining an open mind as to the facts and issues to be tried. But this takes the analogy to a courtroom too far.

A Senate impeachment trial requires solemn judgment of a degree not often seen in modern Senates. But this tells us more about the modern Senate than it does about the Framers’ expectations for senators.

The Framers did not commit impeachment trials to the Senate because they wanted the Senate to temporarily become a different kind of institution. They committed impeachment trials to the Senate because the Senate itself, as they originally envisioned it, was the institution best suited to carry out the extraordinary work of a such a trial. To carry out the job that the Constitution assigns to them, senators shouldn’t reconceive of themselves as courtroom jurors. They should recommit themselves to the Framers’ original vision of their job in general.

The Senate as a Court?

Our tendency to analogize senators to jurors, and the Senate to a court, is not accidental. The Constitution gives the Senate “the sole Power to try all Impeachments,” and the Framers’ most eloquent explanation of the Senate’s impeachment power, Alexander Hamilton’s Federalist Nos. 65 and 66, defended that provision by reference to the Senate’s “judicial character as a court for the trial of impeachments.”

We must be careful, however, not to take the “court” metaphor too far. Senators do have a judicial character, but they remain senators. The Senate becomes the court in which impeachment is tried, and the senators undertake the trial “on Oath or Affirmation,” but this “court” is a political court of impeachment, not a judicial court of law. Most importantly, when Hamilton spoke of the Senate’s “judicial character,” he wasn’t describing what the Senate becomes on certain special occasions — he was describing what the Constitution needs of the Senate whenever the Senate does its work.

And so I agree with The Bulwark’s Bill Kristol and Jeffrey Tulis that impeachment trials are the Senate’s “awesome responsibility,” obligating the senators to look beyond base partisanship and “make this a moment that demonstrates our constitutional order at its best rather than politics at its worst.” But I would not go so far as to say that impeachment transforms the Senate into “a different institution.” Instead, impeachment needs senators to be what the Framers meant them to be. The Constitution doesn’t need senators to become a court; it needs them to become, genuinely, the Senate.

“The True Test of a Good Government”

The most consequential word in American constitutionalism is “administration” — not “the administration,” as in the Trump administration or the Obama administration, but “administration” in the sense that the Framers understood it: namely, the actual functioning of government, the administering of the powers that the Constitution entrusts to the people’s representatives. As Hamilton explained in Federalist No. 72, “the administration of government, in its largest sense, comprehends all the operations of the body politic, whether legislative, executive, or judiciary.”

“Administration” is the most consequential word in American constitutionalism for two reasons.

First, as Hamilton emphasized repeatedly in the Federalist, “the true test of a good government is its aptitude and tendency to produce a good administration.” The Framers, aspiring to create a new Constitution that would replace the ineffectual Articles of Confederation, understood that the resulting document would be judged not by its theoretical elegance but by the fruits — the governance — that it actually produced.

Second, “administration” is consequential because of the way that we eventually reinterpreted the term. At some point, surely long ago, the American people came to identify “administration” exclusively with the executive branch. That change facilitated the misimpression of “administration” as something that the president does, while the other parts of government — representatives, senators, judges — are busy doing other things. This misunderstanding of the other institutions’ own constitutional responsibilities profoundly affected the behavior of the courts, the House, and, especially, the Senate.

To be fair, our changed understanding of “administration” was not accidental. Hamilton recognized from the outset, in Federalist No. 72, that “administration” includes first and foremost those activities that fall “peculiarly within the province of the executive department.” (Just two Federalist papers earlier, Hamilton’s famous defense of executive power argued that energy in the executive would promote “the steady administration of the laws.”) But Hamilton and his co-authors emphasized throughout their Federalist essays that the Constitution relied upon other parts of government to play significant roles in administration — and that the Senate’s contributions to administration would be among the most important of all.

Hamilton stressed this point in his discussion of the appointment of Cabinet officers, in Federalist No. 76, recognizing that even good presidents would be tempted to staff the executive branch’s leadership badly, serving personal loyalty or political advantage rather than the public interest. Hamilton argued that the Senate’s power to grant or withhold its “advice and consent” to a presidential appointment “would have a powerful, though in general, a silent operation,” tending “greatly to prevent the appointment of unfit characters from state prejudice, from family connexion, from personal attachment, or from a view to popularity.” In that way, Hamilton stressed, the Senate “would be an efficacious source of stability in the administration.” Good administration required more than just a government of yes-men, people “personally allied to” the president and “possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.” In domestic policy, good administration was not simply the province of the president; it also required a strong investment of time and effort by a Senate of “independent and public spirited men,” who often would undertake their duty in spite of the president himself.

So too in foreign policy. In Federalist No. 64, John Jay explained that the Senate’s constitutional power to grant or withhold its advice and consent from treaties reflected the Framers’ understanding that our government’s commitments needed to be “cautiously formed and steadily pursued” by “able and honest men” with a real understanding of “our national concerns.” This duty would fall to senators, “who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence.” And, as in domestic policy, it would require those senators to dedicate time and effort to shaping administration even when the president preferred otherwise.

Jay’s and Hamilton’s characterizations of the Senate’s necessary contributions to administration, and their accounts of the personal virtues necessary for senators to make those contributions, echoed James Madison’s own view of what the Senate would be and do. Describing the Senate’s role in Congress’s legislative process, Madison wrote in Federalist No. 63 that legislation needed to be directed by “the cool and deliberate sense of the community,” not by people stirred up by “some irregular passion” or by some artful politician’s “illicit advantage.” This is what would distinguish the Senate from the House: When the House was stirred up by political furies, the Senate would remain the “temperate and respectable body of citizens,” intervening “to suspend the blow mediated by the people against themselves, until reason, justice, and truth, can regain their authority over the public mind.”

More fundamentally, Madison described the Senate’s constitutional role, in Federalist No. 62, with a striking phrase: “the senatorial trust.” Here, too, he was marking a contrast between the Senate and the House, one exemplified not just by senators’ longer terms in office, but also by the higher age and citizenship requirements the Constitution placed on them as opposed to representatives. The Constitution required senators to be at least 30 years old, with at least nine years of citizenship, greater than representatives’ 25- and seven-year thresholds, because of “the nature of the senatorial trust.” The constitutional Senate is an institution “requiring greater extent and stability of character,” and thus its senators “should have reached a period of life most likely to supply these advantages.”

Madison also focused on the well-known difference between a senator’s term and a representative’s. A senator’s six-year term, longer than a representative’s two years or a president’s four, embodied “the necessity of some stable institution in government” to mitigate the risk that congressional elections every two years would bring about a constant flux in legislation and administration — something “inconsistent with every rule of prudence, and every prospect of success.” Here, Madison was focused squarely on the Senate’s contributions to good, steady administration. Constant flux in government personnel would cause flux in legislation and policy — “the mischievous effects of a mutable government,” paralyzing economic growth at home and undermining America’s stature abroad. “No government, any more than an individual, will long be respected, without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability,” Madison wrote. Once again, the Senate’s contribution to good administration, and thus to the Constitution’s vision of good government, was the stability offered by a body of senators — namely, men (and now women) serving longer terms and, the Framers hoped, elected to those terms because of their superior character.

Things Fall Apart

It is easy to read Madison’s centuries-old writings and chuckle at how far today’s Senate seems removed from Madison’s ideal. Today the only salient difference between senators and representatives is not the depth of their virtue but the length of their terms, and we’ve forgotten the whole reason for their longer terms (and greater ages) in the first place.

But if anything, it’s Hamilton’s and Jay’s accounts, focused on the administration of foreign and domestic policy, that seem ever more archaic. Senators are little interested in checking and guiding the administration of foreign policy nowadays, and even less interested in checking and guiding the administration of domestic policy through presidential appointments, unless the president is of the opposite party.

This has been a particular worrisome feature of the last three years, especially with respect to domestic administration. President Trump has staffed his agency leadership with astonishing numbers of “acting” officers lacking the Senate’s advice and consent. It’s no surprise, as Hamilton noted in Federalist No. 76, that a president would prefer to avoid the Senate’s constitutional role. (“I like acting [officials],” Trump told reporters in January 2019. “It gives me more flexibility. Do you understand that? I like acting [officials].”) That natural preference is precisely why constitutional administration relies on the Senate to assert itself against presidential unilateralism. Yet Senate Republicans, understandably keen to continue their laudable success in confirming judges, consciously de-prioritized the Senate’s role in the appointment process, and thus de-prioritized the Senate’s role in ensuring good, stable constitutional administration. “Priority between an assistant secretary of state and a conservative court judge — it’s not a hard choice to make,” Senate majority leader Mitch McConnell told The Weekly Standard in 2017.

As a matter of principle, it ought to be a hard choice, or at least a harder choice, to make. As Justice Thomas observed in a 2017 opinion, the Senate’s constitutional role in the appointment of administration personnel “is not an empty formality,” but rather a crucial protection against “the serious risk for abuse and corruption posed by permitting one person to fill every office in the Government.” Yet senators’ relative lack of interest in executive-branch appointments makes perfect sense if one remembers that they do not see themselves as responsible for the actual administration of government. In an era when the Senate thinks of administration as the president’s job, its near-exclusive focus on judicial appointments is not reasonable, but compelling.

And so we ought to recall Hamilton’s key warning, in Federalist Nos. 68 and 76: “the true test of a good government” is not its aptitude and tendency to produce good judges alone, but “its aptitude and tendency to produce a good administration” altogether. And the other way for the Senate to ensure good administration — after legislation, treaties, and appointments — is impeachment.

But that brings us back to the original question: When the Senate is called upon to try an impeachment, how should it conceive of its work?

“Sufficiently Dignified” and “Sufficiently Independent”

To understand the Senate’s proper constitutional role in impeachment, we turn to Hamilton’s now-famous description of Senate impeachment trials in Federalist Nos. 65 and 66. But as we read his description — like so many congressmen did, aloud, in the House’s closing debates on Trump’s impeachment — the great challenge to overcome if we are to understand the Senate’s proper role in an impeachment trial is our modern misunderstanding of the Senate in general.

If we compare Hamilton’s description of a Senate trial to our modern view of the Senate’s day-to-day business, a Senate impeachment trial seems vastly different; it seems to call upon the senators to become something greater than just senators. But if we compare Hamilton’s description of a Senate trial to the Founders’ original view of the Senate’s day-to-day business, the gulf shrinks significantly. And for good reason: The whole point of committing impeachment trials to the Senate was not that senators would then reconceive themselves as judges or jurors, but rather that senators would already be men of a judicial temperament, with deep investment in the quality and stability of administration. In trying impeachments, genuine senators would already be well-suited to the task at hand.

Indeed, when we focus squarely on the task of impeachment itself, strict analogies to judges and juries quickly prove inapt. After all, if the Framers wanted impeachments to be tried by something equivalent to a court, they would have had an option much better than senators available to them: actual judges, such as the members of the Supreme Court. In fact, the delegates to the Constitutional Convention of 1787 actually considered committing impeachment trials to the Supreme Court. But they declined to do so, for a variety of reasons. For one thing, they were concerned that Supreme Court justices would be too beholden to a president who’d appointed them, or that justices “were too few in number and might be warped or corrupted.”

For another, the substance of impeachment was a matter that called not for a judge’s judgment but a senator’s. As Hamilton observed in Federalist No. 65, the model for impeachment trials was not a court, but Great Britain’s House of Lords.

This institutional choice reflected impeachment’s substance. At the Convention, the delegates deliberately defined impeachment not simply in narrow terms of “treason” and “bribery” because they wanted impeachment to cover (in George Mason’s words) “many great and dangerous offences” that might not qualify strictly as crimes. They rejected impeachment for “maladministration,” because (as Madison put it) it would be a threshold so low that the president would in effect hold his office merely at the “pleasure of the Senate.” They settled instead upon a familiar but still vague term of English practice, “high Crimes and Misdemeanors.”

In Federalist No. 65, Hamilton emphasized that this constitutional provision framed impeachment in terms of offenses best “denominated political, as they relate chiefly to injuries done immediately to the society itself.” An impeachment proceeding would thus be one that could “never be tied down by such strict rules”; in substance, the Constitution’s provision for impeachment was inherently unfit for “the construction of it by the judges.” In a courtroom trial, judges are bound by rules and juries that “limit the discretion of courts”; in an impeachment trial, by contrast, the trier would “necessarily have” an “awful discretion.” An impeachment trial would require not a judge or a jury, but a different kind of decisionmaker — a body of statesmen who would wield such “awful discretion” wisely, with a proper understanding of the public interest. Which is to say, the Founders’ vision of the Senate.

Of course, one real judge does participate in impeachment trials: the chief justice of the Supreme Court, who presides when the president is the one being impeached. The chief justice’s involvement might suggest that a Senate impeachment trial is quasi-judicial, transforming the Senate into an inherently different institution. But this ignores the fact that in most Senate impeachment trials — i.e., all impeachments involving a judge or federal official other than the president — the chief justice is not involved. The nature of impeachment trials is not defined by his involvement, because he is not an inherent part of such trials.

In fact, the chief justice’s participation in presidential impeachment trials is quite possibly a red herring. Madison’s notes from the Constitutional Convention do not explain why the Framers included the chief justice only in presidential impeachments. But there seems a rather simple explanation for it: In presidential impeachments, the man presiding over the Senate — namely, the vice president — would have an obvious conflict of interest. A presidential impeachment would require a different officer, and the chief justice was a reasonable choice. In this view, his presence was a pragmatic accommodation, not a hint of impeachment’s fundamental nature.

Still, Hamilton’s account of impeachment did emphasize the necessary “independence” of senators, and so we must grapple with what that independence entails. Here, too, however, Hamilton’s full explanation points to something far less sweeping than the independence and impartiality of judges and juries, who must be independent from politics, and impartial as to the facts that they will hear in the case. On independence, Hamilton wrote in Federalist No. 65:

Where else, than in the senate, could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers? [Emphasis added.]

Hamilton’s point is clear: An impeachment trial needs to be decided by an institution that does not have an inherent bias for or against either the House or the official being impeached. The Senate served this role, because there is no reason why the Senate would have such an institutional bias.

And even if Hamilton were thinking of impartiality not in terms of the perennial structure of the Senate as an institution, but rather in terms of the partiality that senators might have at a given moment in time toward either the president or the representatives impeaching him, the impartiality necessary for a Senate impeachment trial would fall far short of what we expect of a judge or jury. In a court of law, we expect judges and juries to come to the trial without preconceived views of the facts at issue; we expect them to keep their minds open and to decide the case based on the evidence presented in court. But for impeachment, Hamilton offers no hint that the decisionmaker must approach the case with such a completely open mind as to the facts at issue.

Indeed, it would strain credulity to expect that degree of sweeping independence and impartiality, especially when Hamilton himself describes “the true spirit” of impeachment as “a method of national inquest into the conduct of public men.” Impeachment trials deal with those matters about which senators, deeply invested in the work of government and knowledgeable about affairs of the state, would almost certainly have preconceived notions.

Instead, the impartiality that Hamilton describes in Federalist No. 65 is of a piece with the character that, as described above, the Framers intended for senators to bring to all of their institutional responsibilities. When Hamilton warns that impeachments “will seldom fail to agitate the passions of the whole community,” dividing the public into pro- and anti- contingents mapping easily on to “the pre-existing factions” of a political moment and triggering all the same “animosities, partialities, influence, and interest,” he is telling us that impeachment will look like . . . normal, impassioned politics, only hotter. For Hamilton and his fellow Framers, the passions raised by impeachments were the same passions raised by virtually all aspects of republican government. In impeachment, the passions would be mitigated by the same institution that would help to mitigate them in politics generally: the Senate, for all of the structural and attitudinal reasons described above.

Any lingering ambiguity is dispelled when Hamilton returns to the issue of impeachment one last time, at the end of Federalist No. 77. Concluding his multiple-essay discussion of executive power, Hamilton ends with a reassurance that if the president were to abuse his office, the people would be protected not by a quasi-judicial Senate, but by “the legislative body.”

One genuine distinction between the senators’ work in impeachment and their work on other matters is their oath. Article I, Section 3, Clause 6 of the Constitution specifies a special oath for impeachment trials: “When sitting for that purpose [i.e., trying impeachments], they shall be on Oath or Affirmation.” The Constitution already requires senators (and representatives, and state legislators, and “all executive or judicial Officers”) to “be bound by Oath or Affirmation” in general, though it does not specify the oath’s content. (The first Congress, in the first bill it passed into law, wrote the oath in the broadest possible terms: “I do solemnly swear . . . that I will support the Constitution of the United States.”) What more could the Senate’s impeachment-oath requirement entail?

The best answer might be the simplest one. By specifying that the senators swear an oath without specifying the content of that oath, the Framers intended for the oath to spur senators, with special solemnity, to do what they were always expected to do as senators.

This is what Gouverneur Morris seemed to have in mind when he proposed the oath requirement at the Constitutional Convention. Facing James Madison’s original skepticism of vesting the Senate with the power to try impeachments, Morris replied, according to Madison’s notes, that although the Constitution must avoid the danger of subjecting the presidency to micromanagement by Congress, “there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts” (emphasis added). After the delegates voted to commit impeachment trials to the Senate, Morris offered a specific amendment adding that in a Senate trial “every member shall be on oath,” and the delegates adopted it.

To sum all of this up: The Framers committed impeachment trials to the Senate, not to the Supreme Court, because they were a task appropriate for senators, not justices. In doing so, the Framers expected senators to be “sufficiently independent” from both the official being impeached and the House doing the impeaching, and “sufficiently dignified” to carry out such a momentous task in the midst of inevitably momentous political passion. Yet this is less a description of the Senate’s particular role in impeachment than a description of the Senate’s role in governance generally. By inserting the chief justice into presidential impeachments, the Framers did not suggest that they intended for one judge to turn 100 senators into 100 judges; more likely, they simply needed one judge to temporarily replace the one Senate official (i.e., the vice president) with a particular conflict of interest in such impeachments. And the Framers obligated senators to swear an oath in impeachment not to change them into something other than senators, but to inspire them to be the best version of themselves in an impeachment trial.

As Hamilton put it, in Federalist No. 77’s closing lines on impeachment, “What more can an enlightened and reasonable people desire?”

All Eyes on the Upper Chamber

The Senate now faces the awesome responsibility of trying the impeachment of the United States’ 45th president, and senators are surely wondering what that responsibility entails. If they have read this far, past 3,000 words of Framers’ wisdom and this author’s platitudes, then I hope they have a clearer idea of the answer: They need to be senators, in the truest and best sense of that constitutional institution — selected with the hope that they would exhibit the character and temperament of genuine statesmen; vested with six-year terms intended to bolster their fortitude against the people’s political passions; and empowered to invest themselves deeply in their work to produce the good administration that would demonstrate the goodness of the Constitution itself. To the extent that we find it hard to imagine senators living up to this standard in President Trump’s impeachment trial, it is because we long ago lost sight of what the Senate was supposed to be in the first place. This is our failure, not the Framers’.

The preemptive declarations of Senators McConnell and Graham that they will not be “impartial jurors” is an ominous sign that we are embarking on something far short of what the Constitution intended. Let’s hope that the gravity of the moment, before the judgment of history, spurs all senators to take their oath with the integrity that any oath demands. At the same time, as Ramesh Ponnuru notes, we should all take care not to misconstrue the kind of “impartial justice” that a Senate impeachment trial genuinely entails.

But even if McConnell, Graham, or other Republican or Democratic senators fail to live up to their oath, surely other senators will live up to theirs. If this presidential impeachment trial inspires enough senators to vindicate the Framers’ expectations for their institution, and if that in turn helps Americans to begin to rediscover the Senate’s proper and necessary role in American government, then perhaps the last few years’ political nightmare will someday be worth its immense cost.

To see this article, others by Mr. White, and from National Review, click read more.

Source: President Trump Impeachment Tests Senate’s Ability to Live Up to Founders’ Vision | National Review