Jan 6, 2020

January 4, 2020: Hamilton on Impeachments, Federalist No. 65, No Illusions



The Federalist Papers are a collection of essays written by James Madison, John Jay and Alexander Hamilton. (1) They are a collection of works published in several newspapers advocating the ratification by the several states of the then newly created Constitution of the United States by the founding fathers at Philadelphia in the summer of 1787. Alexander Hamilton, writing under the pseudonym of Publius, wrote in Federalist No. 65, the following concerning impeachments:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. The are of a nature which may with peculiar propriety be denominated POLITICAL, (2) as they relate chiefly to injuries done immediately to the society itself. The prosecution for them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs speak for themselves. The difficulty of placing it rightly in a government resting entirely on the basis of periodical elections will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depository of this important trust. Those who can best discern the intrinsic difficulty of the thing will be the least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.” (3)

There are several points to be noted here:

First, the founders were no idealists lost in innocence. They were well acquainted with the passions of men. They knew something of political faction, of the partisan. They were, after all, champions of revolution, emerging triumphant from the cauldron of partisan hostility, of the people against the state; of revolutionary opposing loyalist, of neighbor against neighbor. They had no illusions, as Hamilton here reveals, that the nation would soon enough be organized around faction; and that in this boiling stew of faction, these questions must be resolved. After all, impeachment would necessarily be produced by crisis. Indeed, innocence or guilt, most likely would, in the end, be determined not by the merits of the case but by the relative political strength and cunning of those involved.



Second, as has been pointed out several times in these columns, impeachments, as Hamilton asserts, proceed from the misconduct of public men; from the violation of some public trust. As noted in these columns, “High Crimes” do not refer to capital offense but to violations of public trust, of oaths of office, of abuses of power. These are, Hamilton assures us, POLITICAL offenses. Political offense demands not legal remedy but political remedy. They are therefore, by constitution and definition, not the province of the courts. Other remedy must be created. In order to do this the founders, as Hamilton points out later in his essay, turned to the British example of the House of Lords being the tribunal constituted to hear the arguments and resolve the issue. (4) We would follow the British example of having the people, acting through the lower house, investigate and bring charges and the upper house, representing the several states, serve as the court in which the matter will be decided.

Hamilton is here arguing that the Constitutional Convention hoped to create Institutions in order to dampen the passions of the partisan. For this purpose they had created the Senate, then to be elected not by popular vote but by the several state legislatures, accountable to the people once every six years, so as to grant a measure of stability. They knew something of unrest, having recently dealt with Shay's Rebellion as we have in our time with the Teabaggers.

Here Hamilton asserts that the Senate is best constituted to “discern the intrinsic difficulty...and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.” Translated from the 18th century prose this means that Hamilton is here declaring that the Senate would become what it later claimed to be: The world's greatest deliberative body. Due weight to the arguments; the counterweight, it is hoped, to political strength and cunning. Deliberation.

This is the primary function of the Senate as charged by the Philadelphia Convention. Are you paying attention Leningrad Lindsay? Moscow Mitch?

An Br'er Putin, he jus' laugh and laugh

Convict and Imprison

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  1. Madison would later become President of the United States. John Jay would become the first Chief Justice of the Supreme Court. Hamilton the first Secretary of the Treasury whose career would later be cut short after being shot and killed in a famous duel with then Vice President Aaron Burr.
  2. Emphasis, in bold type, is Hamilton's.
  3. Hamilton, Alexander (Plubius) “Federalist No. 65” The Federalist Papers. Arlington House, New Rochelle, New York. No date. Pages 396-397
  4. Ibid. Page 397




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