In the Center Stands the Senate

With John G. Roberts and Harriet Miers taking turns in its spotlight, the U.S. Senate is in headlines and leading the evening news. But more than 200 years ago, it had a totally different kind of centrality.

After Vice President Aaron Burr was dumped from the 1804 ticket by President Thomas Jefferson, he made an eloquent farewell address to the U.S. Senate, which he called “a sanctuary and a citadel of law, of order, of liberty” against “the storms of popular frenzy and the silent arts of corruption.” Burr predicted that, should the Constitution ever be overthrown, “its expiring agonies will be witnessed on this floor.”

In the early Republic, even demagogues like Burr recognized that the Senate was the linchpin of constitutional government. The French Catholic political thinker Montesquieu was the first modern advocate for a government based on a strong senate.

John Adams, Charles Carroll (the Catholic signer of the Declaration of Independence), and other Founding Fathers implemented Montesquieu's vision of a Senate which would serve as the guardian of the Constitution. Its small size, secret deliberations and six-year terms of office would increase the power of senators relative to that of representatives. The Senate would be elected by the state legislatures, rather than directly by the people, thus providing the government with stability in the face of public opinion and thwarting the tyranny of the majority.

Unfortunately, by the time of Burr's swan song, the Senate's prestige had already begun to wither. Jeffersonian senators failed to maintain the crucial role of the Senate as a check against the president and the people. It is no accident that the first affirmation of the principle of judicial review came three years after Jefferson's election, in the 1803 Marbury v. Madison case.

With the Senate having backed away from its role as watchdog of the Constitution, the Supreme Court, under Chief Justice John Marshall, stepped into the breach, claiming the power to strike down acts of Congress by declaring them unconstitutional.

While this move had some precedent in English law, it was not what the Founders had intended. Montesquieu called the judiciary “next to nothing” in his system. Hamilton, in The Federalist (No. 78), wrote that “the judiciary is beyond comparison the weakest of the three departments of power. … Though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter.”

Even Hamilton's genius could not foresee the time when the Supreme Court would assume the Senate's pre-eminence, making itself the protector of the common good.

Nor did he anticipate the Senate's gradual drift into irrelevance, greatly hastened by the 1913 ratification of the 17h Amendment, which allows the citizens of each State to elect Senators directly. The 17th Amendment threatened to make the Senate into a mere carbon copy of the House of Representatives, not at all adequate to put a straitjacket on “popular frenzy.”

The problem started, however, with the original Constitution, which did not quite do justice to the historic role of a Senate. The 1787 Constitutional Convention placed the Senate squarely within the legislative branch of government, a departure from both the American and the classical political traditions.

Technically, the Senate in the Roman Republic did not legislate.

It served as an advisory body to the consuls and other elected magistrates. The power to make laws was reserved to the Popular Assembly. In civic emergencies, the Senate would sometimes override popular legislation. Its function was thus to check both the executive and legislative elements in the Roman constitution, armed only with its tremendous prestige.

The institutions that most closely resembled senates during the American colonial period were the councils which advised colonial governors. Like the Roman Senate, these councils belonged neither in the legislative nor the executive branch of government. They served an intermediary function between the executive and the popularly-elected legislatures, advising both branches.

The framers of the Constitution, apparently uncomfortable with the hybrid nature of the Roman Senate and the colonial councils, chose to make the Senate a legislative body.

This guaranteed the development of a separate executive apparatus, what Article II, Section 2 refers to as “other Officers of the United States, whose Appointments are not herein otherwise provided for.” But the Founders did retain for the Senate an important power relative to the executive branch: the prerogative of “advice and consent” to treaties and to the president's appointments of government officials, including Cabinet officers and federal judges.

A great deal depends on this one fragile link in our constitutional chain, the Senate's power to give “advice and consent.” The judiciary now controls the legislative branch, but without a strong Senate, no effective check on executive power will exist.

The continuance of the Senate in some semblance of its original role depends upon good behavior by both the Senate and the executive.

Although “recess appointments,” such as the nomination of John Bolton to the United Nations, circumvent the “advice and consent” function, they are foreseen in the Constitution. The “nuclear option,” cutting off a Senate filibuster on judicial nominees by majority vote, is of more concern — and with more Supreme Court seats in play, the recent compromise on judicial nominees may be meaningless.

The Senate is a shadow of its former reality. Anything that helps restore its traditional position within our governmental framework is currently desirable. The filibuster, although it is merely a matter of Senate custom, provides an important safeguard against majority tyranny. It gives the less populated states, which are overrepresented in the Senate, a way to check a misguided majority will as expressed through the House of Representatives.

But the Senate's prerogative of “advice and consent” must also be exercised with respect for the common good of the entire nation, which the national executive is best positioned to gauge. In relations between the Senate and the president, much can be accomplished by the judicious use of threats, which can at times be more potent than actions. The Senate may threaten to reject a judicial nominee; through his party leaders, the president may threaten the “nuclear option.”

But let us hope, for the sake of the common good, that these threats are carried out only in the most extreme cases.

The Senate must check the executive, but if it becomes too hostile to executive power, disaster may strike: the disaster predicted by Burr, the disaster that befell Rome when Cicero goaded the Senate into supporting Octavian against the consul Mark Antony.

The Roman Senate's folly was the first step toward the Principate of Octavian — Augustus — and the end of the Roman Republic.

Scott McDermott's biography,

Charles Carroll of Carrollton: Faithful Revolutionary, is available at ScepterPublishers.org.