From: [s--rb--k] at [galaxy.ucr.edu] (aaron greewnood)
Newsgroups: talk.politics.guns,alt.rush-limbaugh,alt.politics.perot,alt.politics.clinton,alt.politics.usa.republican,talk.politics.misc,soc.culture.usa
Subject: FEDERALIST NO 67
Date: 24 Aug 1994 20:09:17 -0700

FEDERALIST No. 67

The Executive Department
From the New York Packet.
Tuesday, March 11, 1788.

HAMILTON

To the People of the State of New York:
THE constitution of the executive department of the proposed
 government, claims next our attention.
There is hardly any part of the system which could have been
 atten ed with greater difficulty in the arrangement of it than this;
 and there is, perhaps, none which has been inveighed against with
 less candor or criticised with less judgment.
Here the writers against the Constitution seem to have taken
 pains to signalize their talent of misrepresentation. Calculating
 upon the aversion of the people to monarchy, they have endeavored to
 enlist all their jealousies and apprehensions in opposition to the
 intended President of the United States; not merely as the embryo,
 but as the full-grown progeny, of that detested parent. To
 establish the pretended affinity, they have not scrupled to draw
 resources even from the regions of fiction. The authorities of a
 magistrate, in few instances greater, in some instances less, than
 those of a governor of New York, have been magnified into more than
 royal prerogatives. He has been decorated with attributes superior
 in dignity and splendor to those of a king of Great Britain. He has
 been shown to us with the diadem sparkling on his brow and the
 imperial purple flowing in his train. He has been seated on a
 throne surrounded with minions and mistresses, giving audience to
 the envoys of foreign potentates, in all the supercilious pomp of
 majesty. The images of Asiatic despotism and voluptuousness have
 scarcely been wanting to crown the exaggerated scene. We have been
 taught to tremble at the terrific visages of murdering janizaries,
 and to blush at the unveiled mysteries of a future seraglio.
Attempts so extravagant as these to disfigure or, it might
 rather be said, to metamorphose the object, render it necessary to
 take an accurate view of its real nature and form: in order as well
 to ascertain its true aspect and genuine appearance, as to unmask
 the disingenuity and expose the fallacy of the counterfeit
 resemblances which have been so insidiously, as well as
 industriously, propagated.
In the execution of this task, there is no man who would not
 find it an arduous effort either to behold with moderation, or to
 treat with seriousness, the devices, not less weak than wicked,
 which have been contrived to pervert the public opinion in relation
 to the subject. They so far exceed the usual though unjustifiable
 licenses of party artifice, that even in a disposition the most
 candid and tolerant, they must force the sentiments which favor an
 indulgent construction of the conduct of political adversaries to
 give place to a voluntary and unreserved indignation. It is
 impossible not to bestow the imputation of deliberate imposture and
 deception upon the gross pretense of a similitude between a king of
 Great Britain and a magistrate of the character marked out for that
 of the President of the United States. It is still more impossible
 to withhold that imputation from the rash and barefaced expedients
 which have been employed to give success to the attempted imposition.
In one instance, which I cite as a sample of the general spirit,
 the temerity has proceeded so far as to ascribe to the President of
 the United States a power which by the instrument reported is
 EXPRESSLY allotted to the Executives of the individual States. I
 mean the power of filling casual vacancies in the Senate.
This bold experiment upon the discernment of his countrymen has
 been hazarded by a writer who (whatever may be his real merit) has
 had no inconsiderable share in the applauses of his party1; and
 who, upon this false and unfounded suggestion, has built a series of
 observations equally false and unfounded. Let him now be confronted
 with the evidence of the fact, and let him, if he be able, justify
 or extenuate the shameful outrage he has offered to the dictates of
 truth and to the rules of fair dealing.
The second clause of the second section of the second article
 empowers the President of the United States ``to nominate, and by
 and with the advice and consent of the Senate, to appoint
 ambassadors, other public ministers and consuls, judges of the
 Supreme Court, and all other OFFICERS of United States whose
 appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and
 WHICH SHALL BE ESTABLISHED BY LAW.'' Immediately after this clause
 follows another in these words: ``The President shall have power to
 fill up ?? VACANCIES that may happen DURING THE RECESS OF THE
 SENATE, by granting commissions which shall EXPIRE AT THE END OF
 THEIR NEXT SESSION.'' It is from this last provision that the
 pretended power of the President to fill vacancies in the Senate has
 been deduced. A slight attention to the connection of the clauses,
 and to the obvious meaning of the terms, will satisfy us that the
 deduction is not even colorable.
The first of these two clauses, it is clear, only provides a
 mode for appointing such officers, ``whose appointments are NOT
 OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE
 ESTABLISHED BY LAW''; of course it cannot extend to the
 appointments of senators, whose appointments are OTHERWISE PROVIDED
 FOR in the Constitution2, and who are ESTABLISHED BY THE
 CONSTITUTION, and will not require a future establishment by law.
 This position will hardly be contested.
The last of these two clauses, it is equally clear, cannot be
 understood to comprehend the power of filling vacancies in the
 Senate, for the following reasons: gFirst. The relation in
 which that clause stands to the other, which declares the general
 mode of appointing officers of the United States, denotes it to be
 nothing more than a supplement to the other, for the purpose of
 establishing an auxiliary method of appointment, in cases to which
 the general method was inadequate. The ordinary power of
 appointment is confined to the President and Senate JOINTLY, and can
 therefore only be exercised during the session of the Senate; but
 as it would have been improper to oblige this body to be continually
 in session for the appointment of officers and as vacancies might
 happen IN THEIR RECESS, which it might be necessary for the public
 service to fill without delay, the succeeding clause is evidently
 intended to authorize the President, SINGLY, to make temporary
 appointments ``during the recess of the Senate, by granting
 commissions which shall expire at the end of their next session.''
 Secondly. If this clause is to be considered as supplementary
 to the one which precedes, the VACANCIES of which it speaks must be
 construed to relate to the ``officers'' described in the preceding
 one; and this, we have seen, excludes from its description the
 members of the Senate. Thirdly. The time within which the
 power is to operate, ``during the recess of the Senate,'' and the
 duration of the appointments, ``to the end of the next session'' of
 that body, conspire to elucidate the sense of the provision, which,
 if it had been intended to comprehend senators, would naturally have
 referred the temporary power of filling vacancies to the recess of
 the State legislatures, who are to make the permanent appointments,
 and not to the recess of the national Senate, who are to have no
 concern in those appointments; and would have extended the duration
 in office of the temporary senators to the next session of the
 legislature of the State, in whose representation the vacancies had
 happened, instead of making it to expire at the end of the ensuing
 session of the national Senate. The circumstances of the body
 authorized to make the permanent appointments would, of course, have
 governed the modification of a power which related to the temporary
 appointments; and as the national Senate is the body, whose
 situation is alone contemplated in the clause upon which the
 suggestion under examination has been founded, the vacancies to
 which it alludes can only be deemed to respect those officers in
 whose appointment that body has a concurrent agency with the
 President. But lastly, the first and second clauses of the
 third section of the first article, not only obviate all possibility
 of doubt, but destroy the pretext of misconception. The former
 provides, that ``the Senate of the United States shall be composed
 of two Senators from each State, chosen BY THE LEGISLATURE THEREOF
 for six years''; and the latter directs, that, ``if vacancies in
 that body should happen by resignation or otherwise, DURING THE
 RECESS OF THE LEGISLATURE OF ANY STATE, the Executive THEREOF may
 make temporary appointments until the NEXT MEETING OF THE
 LEGISLATURE, which shall then fill such vacancies.'' Here is an
 express power given, in clear and unambiguous terms, to the State
 Executives, to fill casual vacancies in the Senate, by temporary
 appointments; which not only invalidates the supposition, that the
 clause before considered could have been intended to confer that
 power upon the President of the United States, but proves that this
 supposition, destitute as it is even of the merit of plausibility,
 must have originated in an intention to deceive the people, too
 palpable to be obscured by sophistry, too atrocious to be palliated
 by hypocrisy.
I have taken the pains to select this instance of
 misrepresentation, and to place it in a clear and strong light, as
 an unequivocal proof of the unwarrantable arts which are practiced
 to prevent a fair and impartial judgment of the real merits of the
 Constitution submitted to the consideration of the people. Nor have
 I scrupled, in so flagrant a case, to allow myself a severity of
 animadversion little congenial with the general spirit of these
 papers. I hesitate not to submit it to the decision of any candid
 and honest adversary of the proposed government, whether language
 can furnish epithets of too much asperity, for so shameless and so
 prostitute an attempt to impose on the citizens of America.
PUBLIUS.
1 See CATO, No. V.
2 Article I, section 3, clause I.