Federalist 65 Paraphrased
Federalist No. 65 - The Senate Judges Impeachment Trials paraphrased into modern English
by Alexander Hamilton, March 7, 1788
To: the People of the State of New York:
The rest of the powers that the new Constitution specifically gives to the Senate are helping the President appoint officers, and acting as jury during impeachment trials. In making official appointments, the President has the main role -- we'll be discussing the details of that in the Federalist Paper about the President's powers. So we'll focus here on the Senate's role in trying impeachments.
Gathering a qualified jury for impeachments trials is as necessary as it is difficult when your government is completely elected by the people. The cases the Senate would be trying would be offenses involving the misconduct of public officials -- I mean cases in which they've abused or violated some public trust. The cases will be of a political nature, since they relate mostly to offenses done directly against society itself. Prosecuting these officials will excite the sentiment of the entire community, and divide it into parties that are favorable or hostile to the accused official. In many cases, the case will be connected to factions that already existed, bringing in bitterness, biases, influence, and advantage on one side or the other. This means that there will always be a great risk of the decision being settled based on which party is the strongest instead of on the evidence that proves the official's guilt or innocence.
The fragility and the abundant trust involved in a politician's reputation, and every man working in public service, are evident. Placing that trust securely in a government that's chosen by regular elections is an obvious challenge when you consider that the most visible characters will inevitably be the leaders or tools of the most devious or largest faction -- men who can't be expected to be neutral when they assess those whose conduct is being examined and judged in an impeachment.
The men who wrote the Constitution thought that the Senate would be trustworthy enough to handle this critical responsibility. Those who understand how complex and difficult such a situation would be are the ones who will be the most cautious about jumping to a conclusion, and more careful to consider carefully the arguments on both sides of the impeachment issues.
What, then, is the actual spirit of impeachment itself? Isn't it laid out as a means of national investigation into the behaviors of public officials? If that is its design, who is more properly qualified to investigate on behalf of the nation than the elected representatives themselves? Everyone agrees that the authority to begin the impeachment should be one of the branches of Congress. It makes sense that the other branch should also have a role in the impeachment proceedings. This arrangement wasn't an original idea -- it was borrowed from England's parliament. Their House of Commons is the one to originate the impeachment, and the House of Lords is the one who decides the case. Some of our own State constitutions have followed that example. They, as well as England, seem to think of impeachment as a tool to be used by the legislative branch to restrain the executive branch. Isn't this the right way of looking at it?
Who else but the Senate is dignified and independent enough to form a court of justice in an impeachment? Who else would feel confident enough in their own position to remain unbiased, composed, and beyond influence in order to maintain the appropriate impartiality between the accused official, and the representatives of the people who are accusing him?
Would the Supreme Court be trustworthy in this role? I don't know if they'd have the firmness that such a difficult task would require. It's even more unlikely that they'd have enough credibility or authority to reconcile the people to their decision if they disagreed with the State representatives who accused the president. If the Supreme Court lacked the firmness, it could be fatal for the accused president. If the people refused to accept their verdict, there could be domestic unrest. The only way to avoid both of those scenarios is to have a much larger Supreme Court -- and that would be a burden on the economy. The number of Supreme Court Justices needed would vary depending on the specific impeachment case. An impeachment case couldn't be bound by strict rules, either in defining the offense the prosecutors could bring forward, or how the judges could construct the charges. An impeachment isn't like a common case that can go by the ordinary guidelines. There is no jury between the judges who pronounce the sentence, and the accused man who will receive that sentence. A court trying an impeachment needs to have a daunting amount of wisdom since they'll be either sentencing or acquitting the most distinguished public officials in the community. Such an important responsibility can't be entrusted to a mere handful of individuals.
[The Supreme Court began with six justices; the Senate had 26 members and counting.]
These considerations make it obvious that the Senate would be better than the Supreme Court for deciding something as consequential as an impeachment. But there's even one more thing to think about that will confirm this. It is this: if an official is deemed guilty and impeached, his punishment doesn't stop there. Once the court has sentenced him to losing his office, his respect, the responsibility he was trusted with, the honors and payment from his country, he may still be prosecuted in an ordinary court of law for his crime. It wouldn't be right for the same court that ruined his reputation and his office in an impeachment trial to then be in a position to confine him to jail and fine him in a civil court case, too. What if the court makes an error in the impeachment trial? Wouldn't they make the same error in the second trial? Their certainty of his guilt after the impeachment would bias their perspective in the civil trial even if new information were to be presented. Anyone who knows the first thing about human nature will see how likely this would be, and will realize that putting the same people in the role of judges in both trials would be very unfair to the person who was accused. An impeachment trial that should only have deprived the accused of his current office and disqualified him to run for office again could end up with him imprisoned and losing his property. A jury of his peers should prevent that risk, but juries are often influenced by the opinions of judges [who, in this case, would have already judged the accused guilty of impeachment]. Juries sometimes seek special verdicts that put the question back to the opinion of the judges. What official would want to put his freedom and property in the hands of a jury that had already decided he was guilty?
Would it be a better plan to combine the Supreme Court and the Senate in cases of impeachments? This plan might have some advantages, but the negatives we've just stated about the same judges prosecuting twice would outweigh the potential positives. The main benefit of having the chief justice of the Supreme Court preside as president of impeachment trials is actually written into the proposed Constitution, but without the inconveniences of having all of the Supreme Court involved. I think this is a sensible middle ground. I won't mention the objection of giving the judiciary too much power if they are put in the role of impeachment.
Would it have been better to create a unique court made up of officials from other various government departments just for impeachment trails? There are pros and cons to that plan. It might make the political machine even more complex, and add a new tool to the government whose value is doubtful. Perhaps that sounds like a trivial criticism. But here is a more serious concern: to form this kind of a court will be expensive, or could prove to be inconvenient in practice, if not a total fiasco. There would either have to be a group of officials who would have no duties except to sit around waiting for an impeachment, but would still be receiving salaries, or else other officials from State governments would have to be called away from their duties whenever there was an impeachment trial. It's hard to imagine a third scheme that would be any kind of improvement. Since an impeachment court needs to be made up of a large number of people for the reasons we've already mentioned, tax payers won't appreciate the first plan of paying men to do nothing but wait for an impeachment trial. The second plan to call men away from their duties to serve in an impeachment trial will be a challenge, since it won't be easy to collect men from all over the U.S. By the time they're gathered together, it will be too late to give the accused a fair and speedy trial, and more time will have elapsed for jurors to become more biased about his guilt or innocence, and schemes and corruption will have gotten a foothold. And faithful officials will be exposed to persecution if they're on the opposite side of the majority party in the House of Representatives, when they should be back home doing their jobs for their State governments. That scenario might sound presumptuous and harsh, and it isn't inevitable, but let's not forget the malignant spirit of divisive political faction that will sometimes exert its influence over many groups of men.
Perhaps one of the alternate plans, or even a new plan, seems better. That's still no reason to reject the proposed Constitution completely. If a society refused to accept any kind of government until it was thoroughly perfected in every aspect, they'd fall into total anarchy, and the world would become a useless desert. Has a perfect government ever been found? What man would be daring enough to unite all the conflicting opinions in an entire community, and get everyone to agree? What member of the community would yield to his more persuasive neighbor and admit that his own opinion is wrong? It isn't enough for those who are opposed to the new Constitution to point out that certain aspects could have been better. They need to prove that the whole thing is bad and dangerous.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, June 2020
All Federalist Paper Paraphrases
by Alexander Hamilton, March 7, 1788
To: the People of the State of New York:
The rest of the powers that the new Constitution specifically gives to the Senate are helping the President appoint officers, and acting as jury during impeachment trials. In making official appointments, the President has the main role -- we'll be discussing the details of that in the Federalist Paper about the President's powers. So we'll focus here on the Senate's role in trying impeachments.
Gathering a qualified jury for impeachments trials is as necessary as it is difficult when your government is completely elected by the people. The cases the Senate would be trying would be offenses involving the misconduct of public officials -- I mean cases in which they've abused or violated some public trust. The cases will be of a political nature, since they relate mostly to offenses done directly against society itself. Prosecuting these officials will excite the sentiment of the entire community, and divide it into parties that are favorable or hostile to the accused official. In many cases, the case will be connected to factions that already existed, bringing in bitterness, biases, influence, and advantage on one side or the other. This means that there will always be a great risk of the decision being settled based on which party is the strongest instead of on the evidence that proves the official's guilt or innocence.
The fragility and the abundant trust involved in a politician's reputation, and every man working in public service, are evident. Placing that trust securely in a government that's chosen by regular elections is an obvious challenge when you consider that the most visible characters will inevitably be the leaders or tools of the most devious or largest faction -- men who can't be expected to be neutral when they assess those whose conduct is being examined and judged in an impeachment.
The men who wrote the Constitution thought that the Senate would be trustworthy enough to handle this critical responsibility. Those who understand how complex and difficult such a situation would be are the ones who will be the most cautious about jumping to a conclusion, and more careful to consider carefully the arguments on both sides of the impeachment issues.
What, then, is the actual spirit of impeachment itself? Isn't it laid out as a means of national investigation into the behaviors of public officials? If that is its design, who is more properly qualified to investigate on behalf of the nation than the elected representatives themselves? Everyone agrees that the authority to begin the impeachment should be one of the branches of Congress. It makes sense that the other branch should also have a role in the impeachment proceedings. This arrangement wasn't an original idea -- it was borrowed from England's parliament. Their House of Commons is the one to originate the impeachment, and the House of Lords is the one who decides the case. Some of our own State constitutions have followed that example. They, as well as England, seem to think of impeachment as a tool to be used by the legislative branch to restrain the executive branch. Isn't this the right way of looking at it?
Who else but the Senate is dignified and independent enough to form a court of justice in an impeachment? Who else would feel confident enough in their own position to remain unbiased, composed, and beyond influence in order to maintain the appropriate impartiality between the accused official, and the representatives of the people who are accusing him?
Would the Supreme Court be trustworthy in this role? I don't know if they'd have the firmness that such a difficult task would require. It's even more unlikely that they'd have enough credibility or authority to reconcile the people to their decision if they disagreed with the State representatives who accused the president. If the Supreme Court lacked the firmness, it could be fatal for the accused president. If the people refused to accept their verdict, there could be domestic unrest. The only way to avoid both of those scenarios is to have a much larger Supreme Court -- and that would be a burden on the economy. The number of Supreme Court Justices needed would vary depending on the specific impeachment case. An impeachment case couldn't be bound by strict rules, either in defining the offense the prosecutors could bring forward, or how the judges could construct the charges. An impeachment isn't like a common case that can go by the ordinary guidelines. There is no jury between the judges who pronounce the sentence, and the accused man who will receive that sentence. A court trying an impeachment needs to have a daunting amount of wisdom since they'll be either sentencing or acquitting the most distinguished public officials in the community. Such an important responsibility can't be entrusted to a mere handful of individuals.
[The Supreme Court began with six justices; the Senate had 26 members and counting.]
These considerations make it obvious that the Senate would be better than the Supreme Court for deciding something as consequential as an impeachment. But there's even one more thing to think about that will confirm this. It is this: if an official is deemed guilty and impeached, his punishment doesn't stop there. Once the court has sentenced him to losing his office, his respect, the responsibility he was trusted with, the honors and payment from his country, he may still be prosecuted in an ordinary court of law for his crime. It wouldn't be right for the same court that ruined his reputation and his office in an impeachment trial to then be in a position to confine him to jail and fine him in a civil court case, too. What if the court makes an error in the impeachment trial? Wouldn't they make the same error in the second trial? Their certainty of his guilt after the impeachment would bias their perspective in the civil trial even if new information were to be presented. Anyone who knows the first thing about human nature will see how likely this would be, and will realize that putting the same people in the role of judges in both trials would be very unfair to the person who was accused. An impeachment trial that should only have deprived the accused of his current office and disqualified him to run for office again could end up with him imprisoned and losing his property. A jury of his peers should prevent that risk, but juries are often influenced by the opinions of judges [who, in this case, would have already judged the accused guilty of impeachment]. Juries sometimes seek special verdicts that put the question back to the opinion of the judges. What official would want to put his freedom and property in the hands of a jury that had already decided he was guilty?
Would it be a better plan to combine the Supreme Court and the Senate in cases of impeachments? This plan might have some advantages, but the negatives we've just stated about the same judges prosecuting twice would outweigh the potential positives. The main benefit of having the chief justice of the Supreme Court preside as president of impeachment trials is actually written into the proposed Constitution, but without the inconveniences of having all of the Supreme Court involved. I think this is a sensible middle ground. I won't mention the objection of giving the judiciary too much power if they are put in the role of impeachment.
Would it have been better to create a unique court made up of officials from other various government departments just for impeachment trails? There are pros and cons to that plan. It might make the political machine even more complex, and add a new tool to the government whose value is doubtful. Perhaps that sounds like a trivial criticism. But here is a more serious concern: to form this kind of a court will be expensive, or could prove to be inconvenient in practice, if not a total fiasco. There would either have to be a group of officials who would have no duties except to sit around waiting for an impeachment, but would still be receiving salaries, or else other officials from State governments would have to be called away from their duties whenever there was an impeachment trial. It's hard to imagine a third scheme that would be any kind of improvement. Since an impeachment court needs to be made up of a large number of people for the reasons we've already mentioned, tax payers won't appreciate the first plan of paying men to do nothing but wait for an impeachment trial. The second plan to call men away from their duties to serve in an impeachment trial will be a challenge, since it won't be easy to collect men from all over the U.S. By the time they're gathered together, it will be too late to give the accused a fair and speedy trial, and more time will have elapsed for jurors to become more biased about his guilt or innocence, and schemes and corruption will have gotten a foothold. And faithful officials will be exposed to persecution if they're on the opposite side of the majority party in the House of Representatives, when they should be back home doing their jobs for their State governments. That scenario might sound presumptuous and harsh, and it isn't inevitable, but let's not forget the malignant spirit of divisive political faction that will sometimes exert its influence over many groups of men.
Perhaps one of the alternate plans, or even a new plan, seems better. That's still no reason to reject the proposed Constitution completely. If a society refused to accept any kind of government until it was thoroughly perfected in every aspect, they'd fall into total anarchy, and the world would become a useless desert. Has a perfect government ever been found? What man would be daring enough to unite all the conflicting opinions in an entire community, and get everyone to agree? What member of the community would yield to his more persuasive neighbor and admit that his own opinion is wrong? It isn't enough for those who are opposed to the new Constitution to point out that certain aspects could have been better. They need to prove that the whole thing is bad and dangerous.
Signed, "Publius Valerius Publicola."
Paraphrased by Leslie Noelani Laurio, June 2020
All Federalist Paper Paraphrases
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