Federalist No.64

The Powers Of The Senate

Wednesday, March 5, 1788

John Jay


Many of the Federalist Papers so far have been a reassurance that the proposed constitution is well-balanced enough that corruption and vice may not frustrate the workings of government or disadvantage the people. John Jay’s final contribution to the Federalist Papers also follows this theme but with a slightly more optimistic bent. It mostly concerns the subject of treaties as made by the President and ratified by the Senate. To describe it broadly, Jay believes the Constitution is structured in such a way, with its checks and balances, in concert with the many ways in which representatives, including the president, may be trusted in their fidelity by honor, oaths, reputations, conscience, the love of country, and family affections, along with the concurrent negative motivators such as fear of punishment and disgrace can operate, that the system will be assured of representation by honourable men.


The events of Trump's presidency, especially those that brought about his first impeachment, call this ideal into question, of course. Testimonies showed that Trump withheld a meeting for President Zelensky of the Ukraine in the Oval Office, as well as funds to help Ukraine resist the Russians, for his own private political gain. This level of corruption now seems unquestionable, yet the attitude displayed by Republican Senators during the impeachment, was a clear signal that Republicans intended to use their majority in the Senate to acquit Trump.

He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained.
- John Jay


In beginning his discussion, Jay argues that the American system is designed to choose the very best men for office. He alludes to the college electoral system (the President to be chosen by a select body of electors) along with the choice of Senate members through the State legislatures, as a means of choosing the most enlightened and respectable citizens … who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. Jay also alludes to an argument previously made by Madison, that the composition of the Senate – a six year tenure with a one third turn-over every two years – allows Senators to become acquainted with national concerns and retain knowledge within the Senate by not replacing it entirely.


Given the integrity of both President and Senate that Jay assumes from the system, he argues that the power of the President not only to negotiate treaties, but to negotiate them in secret is not only acceptable, but of paramount importance: that perfect secrecy and immediate despatch are sometimes requisite. Jay justifies this in cases where discretion is needed to obtain information, or in circumstances where someone might talk to the President, while reluctant to speak to the Senate.


Jay acknowledges that circumstances may also require the President to act quickly: losses in battles; the death of foreign leaders; the removal of a minister. Jay uses the metaphor tides in national affairs to suggest the inevitable and natural movements of events to which a government must respond. In summary, he argues that the Constitution provides America with suitable leaders, discretion and the ability to quickly respond to events.


Jay refutes the assertion that all laws should be made by the legislative arm of government. Jay does not mount a detailed argument to say why laws are equally valid from the legislative, executive and judicial branches of government, but merely asserts that it does not follow that just because the people voted for House representatives, that the House should make all laws.


He does, however, refute the notion that treaties made by the President should be repealable at pleasure. He draws a distinction between laws that Congress passes and treaties made with foreign nations. In the case of the former, Congress is the only party involved in making the law, while in the case of the latter, a treaty is only repealable with the consent of both parties that made it. Otherwise, America’s reputation and trust with other nations would be ruined.


Finally, Jay addresses the fear that the President and Senate might act in the interest of only a portion of the American people. Jay points out that all States are represented equally in the Senate. Apart from this, his rationale rests once again on the good of human nature: that the President and Senators also exist under the laws they enact and that they would be short-sighted, indeed, if they did not understand that the good of the whole can only be promoted by advancing the good of each of the parts of members which compose the whole. This last argument is an idealistic interpretation of Hobbes’ theory of the body politic, since Jay makes reference to it and uses the metaphor of eyes (that are deceived by delusive appearances) to suggest that fear of an unjust President and Senate is a malady caused by the bile of jealousy. The metaphor of the body politic is an accepted consensual view of the workings of society, which undercuts, in my mind, the assumed poorer tendencies of human nature that Madison and Hamilton discuss in other Papers, which the balances and checks of the Constitution are meant to curb.


This is an optimism that underpins this Paper, but the Trump presidency and its aftermath have shown that optimism can be called into question.

25 November 2019

Revised and updated 28 June 2022