Bench Memos

The Perennial Publius, part 65

Alexander Hamilton weighs in with the final two essays on the Senate.  Leaving its role in approving presidential appointments for the later essays on the presidency itself, he turns in Federalist No. 65 to the remaining distinctive power of the Senate: its “judicial character as a court for the trial of impeachments.” 

There have been just sixteen impeachment trials conducted by the Senate in its whole history–two of presidents, one of a Cabinet secretary, and thirteen of judges (one of them a Supreme Court justice)–and it cannot be said that a fixed process and firm precedents have emerged from such a scanty record.  That pattern (or non-pattern) of history shows two things: first, that Federalist Nos. 65 and 66 still serve as touchstones for the Senate’s business whenever it must conduct a trial, no better guideposts having been developed; and second, that Hamilton was right to say, in No. 65, that there is an “awful discretion” entrusted to the Senate in this respect.  Every impeachment case will be different, and the process “can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.”

Although the process is a trial, and the Senate is a court, an impeachment proceeding is emphatically “POLITICAL” (Hamilton’s capitals), “relat[ing] chiefly to injuries done immediately to the society itself.”  Hamilton, in short, is looking high, not low, when he imagines the offenses that principal public officials might commit.  (During the Clinton impeachment of 1998-99, some of the president’s defenders said or came close to saying that mere criminality on his part did not warrant impeachment and removal, since the process was intended for offenses more serious than that.  This erroneously supposed that the Constitution’s attention to the despotic renders it incapable of noticing the contemptible.)

But the focus of the essay is on the fitness of the Senate to be the court of impeachment.  “What other body,” asks Hamilton, “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?”  Interestingly, Hamilton rejects the Supreme Court as appropriate for this process, doubting the justices’ “fortitude,” and even their “credit and authority” for a task that is at bottom more political than legal.  If Hamilton did not have his attention so fixed on the prospect of impeaching presidents, he might have added that the trial of impeachments cannot be confided to a court whose members are themselves subject to the process (but he remedies this omission sixteen essays later).

Last week the monitors of the nation’s political morality–otherwise known as the state senate of Vermont–called for the impeachment of President Bush and Vice President Cheney.  This only proves another point of Hamilton’s (as also did the outcome of the Clinton trial), that the power of impeachment will always be hard to separate from the politics of “pre-existing factions, and will inlist all their animosities, partialities, influence and interest on one side, or the other.”  In the precincts where serious people must make serious decisions, this “movement” will go exactly nowhere.

(For explanation of this recurring feature, see here.)

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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