The Powers of the Senate
By: John Jay
(Read full text here: Federalist #64)
Federalist 64 was written by John Jay, who served as an ambassador to Spain and France. Jay was instrumental in negotiating the peace treaty with Great Britain which secured our independence as a nation as well as negotiations for another treaty with Great Britain – “Treaty of Amity, Commerce and Navigation, also known as the Jay Treaty. John Jay served as the first Chief Justice of the United States.
This biography makes Jay the ideal choice to explain the Senate’s role in providing “advice and consent” to the Executive’s constitutional authority to make treaties, “provided two thirds of the Senators present concur.” Also Jay’s experiences as an ambassador and peace treaty negotiator also gives added weight to his explanation and description of the character necessary in public servants because the trust of the public good can only exist if under the influence and protection of persons who respect “honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity.”
“The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.” Federalist 64.
Treaties relate to:
- Commerce. (Free Market Principles)
Those individuals involved – Senators/President/Cabinet Members must:
- Appreciate the necessity of security.
- Be the best qualified for that purpose.
- Understand the principles of the public good as well as appreciate those results of actions that are harmful or conducive to the public good and why.
What determines “the public good?” We use the Webster’s 1828 dictionary to get an accurate definition of the words used by our founders.
- Public – Pertaining to a nation, state or community; extending to a whole people; as a public law, which binds the people of a nation or state, as opposed to a private statute or resolve, which respects an individual or a corporation only. Thus we say, public welfare, public good, public calamity, public service, public property.
- Good – Conformable to the moral law; virtuous; applied to actions.
Therefore, the public good conforms with moral law or Natural Law and is not according to personal opinion. The ability to recognize the difference between what is moral/natural law and what is opinion is a difficult but not impossible task.
When other members of the community are treated as objects, the opinion of human nature is at work.
In appreciating Jay’s use of the term “public good” and comparing that to our current understanding, we can get a glimpse of the foundational element necessary to constitutional government – God. While our Founders understood only those things identified by God or by Natural Law as good, could be stated or expected to be good and therefore bring about good results, our current pop culture mistakenly believes not only can good exist without God, but that good actually contradicts natural law.
Those things that result in injustice, social chaos, and loss of liberties cannot be defined or related to good – be it personal or public.
It is vital that we hold our leaders accountable for the results of their deeds because we join together in a community to form government for the very purpose of ensuring justice, social peace, and our endowed rights. Leaders constantly caught unawares by “unintended” consequences of their actions meant for public good reveal an ignorance of human nature and natural law that should according to Jay’s instruction in Federalist 64 that those serving in government are:
“exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. “ Federalist 64.
Jay continues in Federalist 64 to explain:
1. How are men not associated with the public good elected/appointed to a position of power?
- “… where the activity of party zeal,” (voting for the political party rather than principles or character)
- “taking the advantage of the supineness,” (the intellectual laziness of the people)
- “the ignorance,” (a constitutionally protected press that misreports issues and events in an effort to replace natural law with new understanding of “good” has shaped elections.)
- “and the hopes and fears of the unwary and interested, …” (in denying the reality of human nature, we have ceased to recognize the predatory instincts of the interested toward the unwary.) Federalist 64 [ bullet points added for list clarification. Notes in parenthesis my own.]
In appreciating the function of Senators to be advocates for the public good – distinguished because they revere and honor those actions and characteristics identified by the source of all things good* – Jay explains why Senators serve a 6 year term and why that length of term should not expect a “tyrannical aristocracy.”
2. Requirements for Senators reflect the necessity of character as determined by appreciation of the principle of “public good.”
“As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle. If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests, whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged.” Federalist 64
[Note: This passage lists certain character qualifications Jay identifies as necessary for those in elected or appointed service to the nation. The links provided go to Webster’s 1828 Dictionary so that we can understand Jay’s choice of words according to the accepted definition of the time period. The definitions are also listed in the endnotes at the end of this article.]
Each of the passage’s linked words are devoid of meaning if separated from God and His determination of what is good and what is NOT good. Contrary to pop culture thought, personal opinion does not, nor can it determine or define “good”. It is only by agreeing with, and then acting in accordance with the true nature of good can a man be described as good. This self-evident principle is defined as natural law. Therefore, although a man may pledge love and worship of God, unless his deeds are in keeping with God’s determination of good, that man deceives himself and his religion is worthless. Likewise an agnostic or atheist who acts according to natural law may be described as a good man.
The vital truth to be understood is that personal opinion has no bearing on what is true or what is good.
Therefore in order to elect men possessing the necessity of character in order to pursue our national and community good, we must also understand and appreciate what is both true and good. As Jay mentioned earlier, affinity to a political party is not a valid indication of appreciation of what is good. Reliance upon party affiliation can become the individual’s abdication of seeking to better understand the concept of public good according to natural law.
3. Jay Provides Reason for 6 Year Term for Senators – continuity.
“ It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country.” Federalist 64.
“Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information will be preserved.” Federalist 64.
4. Jay Identifies Necessary Qualifications for Senators: Intelligence, Security, and Dispatch in making treaties.
Criterion One: Intelligence – which requires an understanding of human nature in order to best appreciate propitious moments in current events to advance our national interests which explained in the Declaration of Independence.
“They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them.” Federalist 64.
Criterion Two: Secrecy and Dispatch – each requires the character trait of trustworthiness in receiving information as well as the trait of efficiency which is an appreciation of knowing when to act as much as completing a task in a timely manner.
“As in the field [community], so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects. Those matters which in negotiations usually require the most secrecy and the most dispatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and dispatch on the other.” Federalist 64.
Again it is of vital importance to our national self-interest that elected officials first have an appreciation of what is good and true according to God and natural law so that are they are able to administer duties according to integrity and competence. The results of actions taken by individuals in opposition or misapplication of the foundational principles that address the public good can be judged according to the perpetuation of justice and pursuit of happiness. Those in appointments of power who through their work in court judgements, legislation, and treaties whose deeds create social turmoil and chaos, limit liberty, place restrictions upon the pursuit of happiness, and promote injustice are inadequate of the character and intelligence requirements to possess power.
The ability of the Executive to make treaties was questioned by those asserting that the Constitution allowed only Congress to make law.
Jay answered this assertion:
“All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them the power to do every other act of sovereignty by which the citizens are to be bound and affected.” Federalist 64.
5. Jay Explains Why Treaties should not be repealable.
Criterion One: We must rely on the Integrity of the Executive and Senators making the treaty to negotiate for the public/national good using the tools of dispatch and security.
“As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance.” Federalist 64.
It is therefore vital to the public good to properly vet candidates in regards to their appreciation of good as well as the character to adhere to those principles. Those elected officials whose deeds – and results of those deeds – fall short of that understanding must be severely reprimanded, impeached, or removed from office.
Criterion Two: A Treaty must represent the national form and character and promote the national good.
“In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole.” Federalist 64.
National good should be identified as those things that are:
- non excludable to benefits – every citizens enjoys the benefit, without exclusion.
- non rival – a citizen’s enjoyment of this good in no way affects, nor does it effect, the enjoyment of this national good by another citizen.
Criterion Three: A Treaty is a bargain -“n. An agreement between parties concerning the sale of property; or a contract by which one party binds himself to transfer the right to some property, for a consideration, and the other party binds himself to receive the property and pay the consideration. A bargain is not synonymous with law.”
As Jay explains:
“a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them.”
While the purpose of Federalist 64 is to lay out the character and function of a Senator in particular to participate and review the Executive’s ability to make treaties, Jay provides much to consider about understanding the clause “the public good.” In straying from the actual rules and requirements of our Constitution, it is also important to consider how certain clauses have been subverted by all three branches of government to persuade the public that these clauses mean our government can do whatever they want in pursuit of a clause such as “the public good.”
It is our responsibility to appreciate the founder’s intent and then judge the results of deeds (legislation, treaty, judgments) done in the advancement of “the public good” for adherence to the founder’s intent. The results of deeds that fail to meet the true intent of “the public good” are in direct opposition to the very purpose we join together to form a government. Such results are a direct measure of our elected officials’ lack of the necessary qualifications: intelligence, integrity, and the appreciation of security as identified by Jay in this Federalist article.
James 1:17 Every good thing given and every perfect gift is from above, coming down from the Father of lights, with whom there is no variation or shifting shadow. NASB
Definitions are from Webster’s 1828 Dictionary:
enlightened – To give light to; to give clearer views; to illuminate; to instruct; to enable to see or comprehend truth; as, to enlighten the mind or understanding.
To illuminate with divine knowledge, or a knowledge of the truth.
virtue – Moral goodness; the practice of moral duties and the abstaining from vice, or a conformity of life and conversation to the moral law. In this sense, virtue may be, and in many instances must be, distinguished from religion. The practice of moral duties merely from motives of convenience, or from compulsion, or from regard to reputation, is virtue, as distinct from religion. The practice of moral duties from sincere love to God and his laws, is virtue and religion. In this sense it is true,
That virtue only makes our bliss below.
Virtue is nothing but voluntary obedience to truth.
discretion – Prudence, or knowledge and prudence; that discernment which enables a person to judge critically of what is correct and proper, united with caution; nice discernment and judgment, directed by circumspection, and primarily regarding ones own conduct.
discernment – n. The act of discerning; also, the power or faculty of the mind, by which it distinguishes one thing from another, as truth from falsehood, virtue from vice; acuteness of judgment; power of perceiving differences of things or ideas, and their relations and tendencies. The errors of youth often proceed from the want of discernment.
interest – n. Concern; advantage; good; as private interest; public interest.
Divisions hinder the common interest and public good.
integrity – The entire, unimpaired state of any thing, particularly of the mind; moral soundness or purity; incorruptness; uprightness; honesty. Integrity comprehends the whole moral character, but has a special reference to uprightness in mutual dealings, transfers of property, and agencies for others.