 | 202209 17Constitution Day 2022: Treatymaking Power and George Washington's Visit to the Senate
September 17, 2022
The Constitution states that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." This defines how consent is given but does not explain how the Senate offers its advice. Many framers envisioned the Senate as an executive council that would discuss a treaty with the president as it was being negotiated. When President George Washington visited the Senate for that purpose in 1789, however, it became clear that the framers’ view might not prevail.
Constitutional Foundations of Treatymaking
When the framers of the Constitution considered the question of treatymaking at the Federal Convention held in Philadelphia in 1787, they originally proposed giving the Senate the sole power to make treaties. As the debate ensued, however, objections arose to depositing the full scope of this complex diplomatic power within the legislative branch. Ultimately, the framers decided that treatymaking would be a concurrent power, shared by the executive and the legislative branches. Article II, section 2 of the Constitution states that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."
In this shared responsibility, the Senate would check presidential power, give the president the benefit of its advice and counsel, and safeguard the sovereignty of the states by providing each state with an equal vote in the treatymaking process. The president would represent the national interest in treatymaking and allow for unity and efficiency. As Alexander Hamilton explained in Federalist, No. 75, the treatymaking power “seems…to form a distinct department, and to belong properly neither to the legislative nor to the executive. The qualities elsewhere detailed, as indispensable in the management of foreign negotiations, point out the executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a part of the legislative body in the office of making them.”1
While the Constitution defines the manner in which consent is given by stipulating that two-thirds of senators present must agree to a treaty, it does not explain how the Senate should offer its advice. “This bare grant tells us…merely that they were the joint possessors of this great power,” one scholar noted. The Constitution’s “elasticity in details…left to successive Senates and to successive presidents the problem and the privilege of determining under the stress of actual government the precise manner in which they were to make the treaties of the nation.”2
The Senate as Executive Council
Many of the framers of the Constitution expected that the Senate would meet with the president in the manner of an executive council to confer about the details of a treaty as it was being negotiated. When the Senate began to consider treaties in 1789, however, it soon became clear that the framers’ view might not prevail. A formative event took place on Saturday, August 22, 1789, at New York City’s Federal Hall when President George Washington and Secretary of War Henry Knox visited senators in their Chamber “to advise with them on the terms of the Treaty to be negotiated with the Southern Indians.”3
Senators of the First Congress and President Washington were well aware that every action they took established precedents, and they often showed great thoughtfulness and foresight in their proceedings. Such was the case with the question of handling communications between senators and the president regarding the Senate’s advice and consent powers. Specifically, should that communication be in writing or in person? It was actually the first Senate rejection of a presidential nomination (also requiring the Senate's advice and consent) that precipitated a careful discussion about the form of communication with the president. On August 5, 1789, the day the nominee was rejected, a motion had been made that the Senate’s “advice and consent to the appointment of officers should be given in the presence of the President.” The Senate then appointed a committee of three to confer with President Washington “on the mode of communication proper to be pursued between him and the Senate, in the formation of treaties, and making appointments to offices.”4
The committee met with the president twice, on August 8 and August 10. “In all matters respecting Treaties,” Washington asserted in the first meeting, “oral communications seem indispensably necessary—because in these a variety of matters are contained, all of which not only require consideration, but some of them may undergo much discussion—to do which by written communications would be tedious without being satisfactory.” Given the necessity of an in-person meeting, Washington then posed several questions as to where such meetings should take place and what protocol should be followed. “If in the Senate Chamber,” for example, “how are the President and Vice President to be arranged?”5
Washington made additional assertions in the second meeting on August 10. In exercising its powers of advice and consent, Washington noted, the Senate “is evidently a Council only to the President”; therefore, “not only the time but the place and manner of consultation should be with the President.” He made an important distinction between the consideration of nominations and treaties, however, stating that treaties were “perhaps as much of a legislative nature” as executive, and so there would be occasions when the president should visit the Senate Chamber in person to make his propositions regarding the terms of a treaty. “The inclination or ideas of different Presidents may be different,” Washington predicted, suggesting the Senate needed to be flexible in the process by which it provides its advice and consent.6
In its report, the Senate committee agreed with the president. Like Washington, the committee also predicted “that the opinions both of the President and the Senate as to the proper manner may be changed by experience.” The committee’s resolution, adopted by the Senate on August 21, 1789, provided for the president to meet with the Senate in its Chamber. On the same day this resolution was adopted, Tobias Lear, President Washington’s secretary, delivered a message stating the president would meet with senators the following day “to advise with them on the terms of the Treaty to be negotiated with the Southern Indians.”7
President Washington Visits the Senate
When President Washington and Secretary Knox arrived in the Senate Chamber on Saturday, August 22, they presented the Senate with a series of questions related to upcoming treaty negotiations. The official record of this proceeding, included in the Senate Executive Journal, offers little insight into what happened in the Chamber that day, merely summarizing the issues and listing seven questions regarding instructions to the commissioners who would negotiate the treaty. According to the Executive Journal, the first question was postponed and the second was answered in the negative. Secretary of the Senate Samuel Otis recorded in his journal that a motion was made to refer the remaining questions to a committee, but Washington thought it improper, and the motion was rejected. The Executive Journal indicated that the Senate ultimately postponed consideration of the remaining questions until the following Monday.8
The only other contemporary account of Washington’s visit to the Chamber that day comes from the diary of William Maclay, a Pennsylvania senator who was a frequent critic of the president. Maclay stated that the meeting was awkward and tense. He noted that the reading of the president’s treaty propositions was drowned out by the noise of Manhattan traffic, making it difficult for senators to grasp the details. “Carriages were driving past and such a Noise, I could tell it was something about Indians, but was not master of one Sentence of it,” he complained.
When the president’s first question, regarding relations with the Cherokees, was put before the Senate, “There was a dead pause,” Maclay noted. “Mr. Morris whispered (to) me, we will see who will venture to break silence first.” Maclay continued, “I rose reluctantly indeed…, it appeared to me, that if I did not, no other one would. And we should have these advices and consents ravish’d in a degree from Us.” Maclay called for the reading of related treaties and other documents, arguing that the Senate had a duty to be fully informed on the subject. Casting his eye on Washington, the Pennsylvania senator noted the president “wore an aspect of Stern displeasure.” As the discussion continued, Maclay concluded that “there appeared an evident reluctance to proceed.” He suggested to Pennsylvania’s Robert Morris that the issues be referred to a committee. “My reasons,” he wrote, “were that I saw no chance of a fair investigation of subjects while the President of the U.S. sat there with his Secretary of War, to support his Opinions and over awe the timid and neutral part of the Senate.”
When Morris moved to have the matter referred to a committee of five, some senators “grumbled some objections,” with South Carolina’s Pierce Butler arguing that the Senate was sitting as a council and that “no council ever committed anything.” Maclay then gave a speech in support of a committee. (“I thought I did the subject justice,” he added in his diary.) As he sat down, Maclay recorded, Washington “started up in a violent fret,” exclaiming, “‘This defeats every purpose of my coming here!’” According to Maclay, Washington “soon cooled, however, by degrees,” and while he objected to the referral to committee, he indicated that he would accept a postponement until Monday. After the motion for a committee was withdrawn and the Senate agreed to postpone, Maclay wrote, the president withdrew “with a discontented Air” and a “sullen dignity.”
Maclay, a vocal opponent of the growth of centralized government power, interpreted the encounter as a contest over the Senate’s equal power in treatymaking. “I cannot now be mistaken,” he wrote in his diary, “the President wishes to tread on the Necks of the Senate…he wishes Us to see with the Eyes and hear with the ears of his Secretary only…And to bear down our deliberations with his personal Authority and Presence.” If the Senate did not take its own counsel and study before offering its advice, Maclay worried, it would contribute little to the treatymaking process and surrender its vital constitutional role. “Form only will be left for Us,” he lamented. “This will not do with Americans.” Maclay was disappointed that a committee was not appointed to consider the issues at hand, but the agreement to postpone offered the Senate the opportunity to study and debate the issues before providing its decision.
Washington returned to the Senate Chamber on Monday and, according to Maclay, “wore a different aspect from what he did Saturday. He was placid and Serene and manifested a Spirit of Accommodation.” The president watched as the Senate proceeded with its “tedious debate” of the remaining questions.9
Washington never again returned to the Senate in person to ask its advice and consent. From then on, he would communicate with the Senate only in writing. Despite the concerns that Maclay confided to his diary, there is little evidence to suggest that Washington intended to intimidate the Senate with his presence or to pressure senators into adopting a particular set of negotiating goals or instructions. Nevertheless, the unwieldy process of Senate deliberation, and perhaps senators’ insistence on studying the issues independently, seems to have discouraged the president from returning to the Chamber. He chose afterwards not to meet with the Senate as an “executive council” as had been envisioned. In the years that followed, Washington’s administration kept the Senate abreast of information related to the formation of treaties, but the president did not consult the full Senate in detail on treaty negotiations, although he did at times consult key groups of senators. When Washington pursued the most contested treaty of his administration, the Jay Treaty with Britain, he worked with a select group of supportive senators to determine the goals of the agreement and secure its approval in the Senate.10
It would be up to future presidents and senators to continue to shape the practice by which the Senate fulfills its constitutional duty of advice and consent. Some presidents have sought advice from the Senate on particular treaties, and a number of presidents have named individual senators to negotiating teams to help build support among their colleagues for the administration’s proposals. For the most part, however, senators have been left to assert their influence in the treatymaking process after a president submits a treaty for their approval. Presidents continue to conduct treaty business with the Senate in writing, although Woodrow Wilson broke with precedent in 1919. He presented the Treaty of Versailles—the peace agreement following World War I that he had personally helped to negotiate—to senators in the Chamber and urged its approval. While the Senate has approved the vast majority of treaties submitted, it has also required amendments and reservations to win that approval and has rejected or failed to act on treaties that did not garner enough support.
The Constitution established the framework of a new federal government, but it was not long before elected officials were confronted with difficult choices about how to exercise the powers it designated, especially when, as in treatymaking, those powers were shared between branches. The August 22 encounter between President George Washington and the Senate during the First Congress became an early milestone in the evolution of those shared powers. As the Senate’s committee report noted, the manner in which the Senate and the executive would put the Constitution’s treatymaking powers into operation would inevitably "be changed by experience."11
Notes
1. Senate Committee on Foreign Relations, Treaties and Other International Agreements: The Role of the United States Senate; A Study Prepared for the Committee on Foreign Relations, United States Senate, by the Congressional Research Service, Library of Congress, 106th Cong., 2nd sess., January 2001, S. Prt. 106-71, 2, 28; Alexander Hamilton, “The Federalist No. 75, [26 March 1788],” Founders Online, accessed August 31, 2022, https://founders.archives.gov/documents/Hamilton/01-04-02-0227. [Original source: The Papers of Alexander Hamilton, vol. 4, January 1787–May 1788, ed. Harold C. Syrett (New York: Columbia University Press, 1962), 628–33.]
2. Ralston Hayden, The Senate and Treaties, 1789–1817: The Development of the Treaty-Making Functions of the United States Senate During Their Formative Period (New York: Macmillan, 1920), 2.
3. Senate Committee on Foreign Relations, Treaties and Other International Agreements, 2, 27; Message of President George Washington Requesting that the Senate Meet to Advise Him on the Terms of the Treaty to Be Negotiated with the Southern Indians, August 21, 1789, Anson McCook Collection of Presidential Signatures, 1789–1975, Record Group 46, Records of the U.S. Senate, National Archives and Records Administration, Washington, D.C.
4. Senate Executive Journal, 1st Cong., 1st sess., August 5–6, 1789, 16.
5. George Washington to Senate, August 8, 1789, George Washington Papers, Series 2, Letterbooks 1754–1799: Letterbook 25, April 6, 1789–March 4, 1791, Manuscript Division, Library of Congress, accessed August 31, 2022, https://www.loc.gov/resource/mgw2.025/?sp=73&st=text.
6. George Washington to Senate, August 10, 1789, George Washington Papers, Series 2, Letterbooks 1754–1799: Letterbook 25, April 6, 1789–March 4, 1791, Manuscript Division, Library of Congress, accessed August 31, 2022, https://www.loc.gov/resource/mgw2.025/?sp=75&st=text.
7. Report of the Committee Appointed to Confer with the President on the Mode of Communication Proper to be Pursued Between Him and the Senate in the Formation of Treaties and Making Appointments to Offices, August 20, 1789, (SEN 1A-D1) Record Group 46, Records of the U.S. Senate, National Archives and Records Administration, Washington, D.C.; Senate Executive Journal, 1st Cong., 1st sess., August 21, 1789, 19; Message of President George Washington Requesting that the Senate Meet to Advise Him on the Terms of the Treaty to Be Negotiated with the Southern Indians, August 21, 1789.
8. Senate Executive Journal, 1st Cong., 1st sess., August 22, 1789, 19–23; Secretary of the Senate Journal on President George Washington's Visit to the Senate Regarding the Treaty with the Southern Indians, August 22, 1789, Record Group 46, Records of the U.S. Senate, National Archives and Records Administration, Washington, D.C.
9. Edgar S. Maclay, ed., Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791 (New York: D.A. Appleton and Company, 1890), 128–33, accessed August 31, 2022, http://memory.loc.gov/ammem/amlaw/lwmj.html.
10. Hayden, The Senate and Treaties, 103–6.
11. Report of the Committee Appointed to Confer with the President, August 20, 1789.
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 | 202112 3Beer by Christmas
December 3, 2021
The Christmas season often brings a sense of joyous anticipation as people celebrate the holiday, enjoy family gatherings, and eagerly await the opening of gifts. Would that special “something” be under the tree? In 1932 that “something” on many people’s wish list was beer.
The Christmas season often brings a sense of joyous anticipation as people celebrate the holiday, enjoy family gatherings, and eagerly await the opening of gifts. Would that special “something” be under the tree? In 1932 that “something” on many people’s wish list was beer.
The Eighteenth Amendment to the Constitution, passed by Congress in December 1917 and ratified by the states in January 1919, banned the “manufacture, sale, or transportation of intoxicating liquors.” To enforce the amendment, Congress passed the National Prohibition Act, also known as the Volstead Act (named for its sponsor, Representative Andrew Volstead of Minnesota), in October 1919. Passed over a veto by President Woodrow Wilson, the Volstead Act defined an “intoxicating beverage” as anything that contained more than .5 percent alcohol. While much of the campaign against alcohol in the late 19th and early 20th centuries had focused on hard liquor, the act’s strict definition also outlawed beer and wine.1
After a decade of Prohibition and the challenges of enforcement—even in the halls of Congress—American politicians in the 1920s split between the “drys,” who wanted to maintain Prohibition, and the “wets,” who wanted it repealed. Both political parties were internally divided over the issue and for more than a decade refrained from adopting a national stance on the question of alcohol. In 1932, however, with the nation suffering through the Great Depression, the Democrats adopted a party platform that supported repeal of the Eighteenth Amendment and modification of the Volstead Act to allow for the manufacture of beer. The Republicans stopped short of endorsing repeal that year—their party platform stated the issue “was not a partisan political question”—but did support altering the amendment to allow states to decide the issue for themselves.2
With Franklin Roosevelt’s victory in the 1932 presidential election and Democratic majorities elected to the House and Senate, many believed that the end of the Prohibition Era was imminent. The election had been largely a referendum on economic issues, but popular majorities throughout the country had expressed support for legalizing alcohol again. In the November election, nine states voted to repeal their Prohibition statutes, and two others approved referenda supporting national repeal. Elected officials, including Louisiana senator Huey Long, began to state optimistically that Congress might deliver “beer by Christmas.” Throughout the country, beer producers, pubs, and taverns quietly made preparations in anticipation of serving beer by December 25.3
As Congress returned for a lame-duck session in December, which would last until March 4, 1933, the “wets” arrived in Washington ready to act. Speaker of the House John Nance Garner, soon to be Vice President Garner, made repeal of the Prohibition amendment the first order of business, but on December 5 Garner’s resolution fell six votes short of the necessary two-thirds majority. The “drys” had won that round, but the “wets” did not concede defeat. “Congress will legalize some sort of beer before Christmas,” Garner announced.4
House Democrats had already held meetings in November before the opening of the session, including with President-elect Roosevelt, and scheduled committee hearings for December 7 to consider a beer bill. Representative James Collier, chair of the House Ways and Means Committee, drafted a bill to legalize beer containing less than 2.75 percent alcohol, which he deemed “non-intoxicating.” Collier’s bill also provided for taxation of beer sales, which allowed supporters to emphasize that legalization would provide badly needed revenue to the federal government in the face of growing budget deficits. Beer producers urged the House to increase the allowable alcohol content to 3.2 percent and promised that they could employ 300,000 people and provide the government with $400 million in revenue over the next year.5
Despite a sense of urgency, the House committee did not report the bill until December 15, and another week passed before the House passed the bill on the 22nd. The prospect of “beer by Christmas” was now in the hands of the Senate. Could the Senate act quickly enough to make the Christmas deadline?6
On December 23, the Senate referred the Collier bill to the Judiciary Committee. Since it included a beer tax, the bill also went to the Finance Committee. With time running out, Republican senator Hiram Bingham of Connecticut—who had just lost his re-election campaign and was now a lame-duck senator—attempted to bypass the committees and get quick action. Bingham had introduced his own beer bill at the start of the previous session of Congress. The Committee on Manufactures had considered his bill but reported it to the full Senate with the recommendation that it not pass. Despite the adverse report, the bill was still available on the Senate calendar. Believing that the political situation had changed, Bingham moved to call up his bill. He intended to amend it by substituting the bulk of the Collier bill for his, predicting the amended bill would promptly pass the Senate.7
When Bingham made his motion to proceed to his bill, however, Democratic Leader Joseph Robinson of Arkansas—soon to be majority leader—applied the brakes. Would any beer, even 3.2 percent beer, be constitutional under the Eighteenth Amendment, Robinson pondered? He insisted that the decision required more careful attention and should not be made with “undue haste.” As the popularity of repeal grew nationwide and Democrats prepared to take the majority on March 4, partisan gamesmanship was also at play. Robinson charged the Republican Bingham of attempting to “embarrass” and upstage the Democrats. As one reporter wrote, “The Democrats let it be known that they had no intention of letting a Republican lame duck steal both the show and the beer bill.” Consequently, Bingham watched his motion fail by a vote of 23–48. Frustrated, he complained that America wouldn’t see beer even by Valentine’s Day.8
Beer would not flow by Christmas or even by the end of the 72nd Congress, but in February of 1933 both houses of Congress approved a constitutional amendment to repeal Prohibition. While the country awaited ratification of the Twenty-first Amendment (which came in December 1933), the House and Senate convened the 73rd Congress on March 4 ready to act. On March 22, 1933, Congress passed the bill to legalize beer with an alcohol content of 3.2 percent or less. Within an hour, the bill was on President Roosevelt’s desk. Always in tune with public opinion, Roosevelt signed it into law and then reportedly remarked: “I think this would be a good time for a beer.”9
Notes
1. Daniel Okrent, Last Call: The Rise and Fall of Prohibition (New York: Scribner, 2010), 96–114.
2. Lisa McGirr, The War on Alcohol: Prohibition and the Rise of the American State (New York: W. W. Norton, 2015), 157–88, 238–39.
3. “Beer by Christmas Seen by Huey Long,” Washington Evening Star, October 29, 1932, 3; “Nine States Voted Repeal of Dry Laws,” Wall Street Journal, November 15, 1932, 4.
4. “Beer Up Next,” Chicago Tribune, December 6, 1932, 1.
5. “Hearing on Beer to Start Dec 7,” Boston Globe, November 24, 1932, 15; “Beer for Revenue,” New York Times, November 25, 1932, 14; “Drys Forming Lines for Repeal Battle,” New York Times, November 28, 1932, 1; “Beer Hearing Begun, 3.2 percent Urged,” New York Times, December 8, 1932, 1.
6. “Beer Approved by Committee,” New York Times, December 16, 1932, 1.
7. A bill to amend the National Prohibition Act, as amended and supplemented, in respect to the definition of intoxicating liquor, S. 436, 72nd Cong., 1st sess., December 9, 1931; Senate Committee on Manufactures, Amendment of the Prohibition Act, S. Rpt. 72-635, 72nd Cong., 1st sess., May 3, 1932; “Bingham to Ask Vote in Senate on Beer Today,” Washington Post, December 23, 1932, 1.
8. Congressional Record, 72nd Cong., 2nd sess., December 23, 1932, 956–58; “Beer by Christmas Defeated as Senate Demands More Time,” New York Times, December 24, 1932, 1; “Beer Loses,” Chicago Tribune, December 24, 1932, 1.
9. “Beer Back After 13 Years,” Chicago Tribune, March 23, 1933, 1; “Roosevelt Signs Beer Bill,” Hartford Courant, March 23, 1933, 1; “Bill Signed; Capital Gets Beer Tonight,” Washington Post, April 6, 1933, 1.
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 | 202109 17Constitution Day 2021: Mixed Government, Bicameralism, and the Creation of the U.S. Senate
September 17, 2021
Drawing on ideas from ancient philosophers and Enlightenment thinkers, as well as recent experiences in crafting new state governments, the framers of the Constitution believed a bicameral legislature was crucial to creating and maintaining a stable republic. In particular, many of the framers argued that the key to a government that served the public good and protected the liberty of free citizens lay in the creation of a senate, which James Madison characterized as “the great anchor of the government.”
When the framers of the Constitution gathered in Philadelphia in the summer of 1787, they debated for months about how the new national legislature would be organized and function. How would its members be chosen and what qualifications would they have to fulfill? How large would the legislature be, and what would be the basis of its representation? What powers would it exercise?
While these questions remained unsettled for weeks, the delegates in Philadelphia did enjoy a broad consensus on one aspect of the new Congress: it would be composed of two distinct bodies, a house and a senate. Drawing on ideas from ancient philosophers and Enlightenment thinkers, as well as recent experiences in crafting new state governments, the framers of the Constitution believed a bicameral legislature was crucial to creating and maintaining a stable republic. In particular, many of the framers argued that the key to a government that served the public good and protected the liberty of free citizens lay in the creation of a senate, which James Madison characterized as “the great anchor of the government.”1
In creating a senate, the framers were heavily influenced by the idea of mixed government, a concept rooted in ancient Greece and Rome. In the 4th century BCE, the philosopher Plato characterized three rival forms of government: monarchy (rule by the one), aristocracy (rule by the few), and democracy (rule by the many). Each system, in Plato’s view, could result in power wielded unjustly. Monarchy could turn into tyranny, aristocracy into oligarchy, and democracy into mob rule and anarchy. Although each order had its strengths—the monarchy energy, the aristocracy wisdom, and the people honesty—Plato posited that the best government was a mixed one that would balance the three social orders, with each exercising equal power in the process of making laws.2
American political thinkers of the revolutionary era frequently referenced classical history and philosophy and expressed the belief that a stable republic rested on the principles of mixed government. In 1772 John Adams, the most influential proponent of this idea, wrote, “The best Governments of the World have been mixed. The Republics of Greece, Rome, and Carthage were all mixed governments.” Adams and others did not have to look back to antiquity, however, to find a model of mixed government. For many, Britain provided the ideal system, with a monarch, the aristocratic House of Lords, and the democratic House of Commons. Americans understood their own colonial governments in a similar way, with power shared among a royal governor, a small advisory council, and an assembly elected by the colonists. If the British system had failed, many argued, it was because the balance among these orders had been destroyed—the king had corrupted Parliament and the colonial governments. As Americans created new state governments in the 1770s, their mission became “to correct the errors and defects” that plagued the British system.3
Proponents of mixed government argued that the stability of a republic required two separate legislative bodies. “I think a people cannot be long free, nor ever happy,” John Adams wrote, “whose government is in one Assembly.” The upper house had traditionally represented the aristocracy, but the United States lacked a titled nobility based on heredity and wealth. Many of the framers of state constitutions believed this role could be filled by a “natural aristocracy,” individuals who, in their view, possessed superior talents that brought them property and prominence. William Hooper of North Carolina, debating the constitution of his state in 1776, argued that in a single assembly, “A Warmth of Zeal may lead [representatives] into errors which a more cool, dispassionate enquiry may discover and rectify.” That dispassionate enquiry would come from those “selected for their Wisdom, remarkable Integrity, or that weight which arises from property and gives Independence and Impartiality to the human mind.” Benjamin Rush of Pennsylvania conceded in 1777 that the United States had “no artificial distinctions of men into noblemen and commoners,” but surely the states had individuals of “superior degrees of industry and capacity” that have “introduced natural distinctions of rank.”4
Ten of the original 13 states established bicameral legislatures with an upper house, identified either as a council or a senate. To establish these upper houses as distinct from the general assemblies, most states adopted higher property qualifications for those elected to the senate. Some states limited voting for senators to those with greater property. Maryland provided for indirect election of senators by a group of electors rather than by the people.5
In the decade leading up to the federal constitutional convention, states that had not sufficiently balanced their democratic assemblies became a target of criticism. In his 1784 Notes on the State of Virginia, Thomas Jefferson complained that the Virginia senate was not designed to attract a different class of people from the assembly. “The senate is, by its constitution, too homogenous with the house of delegates. Being chosen by the same electors, at the same time, and out of the same subjects, the choice falls of course to men of the same description.” Jefferson argued that the two houses ought to “introduce the influence of different interests or different principles,” just as the British relied on the Commons for “honesty” and the Lords for “wisdom.” James Madison, in his Vices of the Political System of the United States, written in 1787 in anticipation of the constitutional convention, criticized the caliber of the individuals serving in state legislatures and accused them of passing “vicious legislation” that “prove[d] a want of wisdom” and threatened property rights. Pennsylvania’s powerful unicameral legislature received the most criticism. Rush called the Pennsylvania government “absurd” and an invitation to “mob government.”6
When the delegates to the federal convention arrived in Philadelphia, therefore, many of them were already convinced that the national government required a bicameral legislature to bring balance to what Virginia’s Edmund Randolph called the “turbulence and follies of democracy.” At the convention, some of the delegates went further, hoping to create a Senate that empowered America’s elite. John Dickinson of Delaware wanted the Senate “to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the House of Lords as possible.” Alexander Hamilton argued that society was naturally divided into the few and the many, and that each should have control over a portion of the government to prevent one from tyrannizing the other. He called for a Senate with members appointed to lifelong terms to allow the few to check the democratic passions of the many. Others argued that senators should earn no salary so as to attract only the wealthiest Americans.7
Although the completed Constitution submitted to the states for ratification stopped well short of creating an American House of Lords, it did set the Senate apart from the House in important ways. State legislatures would elect senators, thus producing the filter that framers believed necessary to select individuals with wisdom and independence. Longer terms of service for senators than for members of the House of Representatives as well as staggered elections would contribute to greater stability in the Senate, balancing the more democratic and ever-changing House. While the Constitution did not include property requirements for serving as a senator, jettisoning one of the ways in which states had identified the natural aristocracy, it did require senators to be older and have been naturalized citizens for longer than the members of the House.
Despite these stricter qualifications for senators, those who opposed the Constitution during ratification debates charged that the new government lacked the balance required of a proper mixed government. They argued that the proposed bicameral Congress placed power too distant from the people and laid the foundation for oligarchy. Richard Henry Lee of Virginia, writing as the Federal Farmer, believed that members of both the House and Senate would represent “an ever artful aristocracy.” The individuals in both houses would be too similar and too far removed from the “middling classes.” “The partitions between the two branches,” Lee held, “will be merely those of the building in which they sit.”8
Supporters of the Constitution applauded the separation of powers as defined in the new Constitution and embodied in the Senate. James Madison contended that the nation was not made up of rival social orders, nor did parts of the government represent distinct social orders. Each department of the government—legislative, executive, and judicial—derived its power from the people. That power was separated to prevent “those encroachments which lead to a tyrannical concentration of all powers of government in the same hands.” The legislative power was divided between “different bodies of men, who might watch and check each other” and thus “doubles the security of the people.” Madison acknowledged that the new Congress, especially the Senate, would be removed from the people, but he argued that this was the genius of the system. “In all civilized Countries,” he wrote,” the people fall into [many] different classes having a real or supposed difference of interests.” Congress’s purpose, Madison suggested, was to provide a forum wherein deliberation would allow representatives of the people to transcend narrow interests and arrive at laws that would serve the public good. The Senate, made up of “enlightened citizens,” was “necessary as a defense to the people against their own temporary errors and delusions” and would produce “the cool and deliberate sense of the community.” A sound government, he argued, required an “anchor against popular fluctuations.”9
The U.S. Senate is the product of political concepts both ancient and modern, reflecting established ideas about mixed government while pointing to new ways of thinking about the relationship between the people and their government. The Senate as established by the Constitution was created in an era of social and political transformation, and the beliefs about its role in the American system of government would continue to evolve. Over the next 233 years, the Senate moved farther away from its mixed government roots as the nation expanded, democratic sentiment grew among the people, and more groups demanded full participation in their government. The U.S. Senate continued, however, as a forum for deliberation and has remained a source of stability in an ever-changing nation.
Notes
1. "James Madison to Thomas Jefferson," October 24, 1787, in Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution (Chicago: University of Chicago Press, 1987), Volume 1, Chapter 17, Document 22, accessed September 9, 2021, https://press-pubs.uchicago.edu/founders/documents/v1ch17s22.html.
2. Carl J. Richard, “The Classical Roots of the U.S. Congress,” in Kenneth R. Bowling and Donald R. Kennon, Inventing Congress: Origins and Establishment of the First Federal Congress (Athens: Ohio University Press, 1994), 3–7; David J. Bederman, The Classical Foundations of the American Constitution: Prevailing Wisdom (Cambridge: Cambridge University Press, 2008), 15–16.
3. John Adams, “Notes for an Oration at Braintree, Spring 1772,” Founders Online, National Archives, accessed September 9, 2021, https://founders.archives.gov/documents/Adams/01-02-02-0002-0002-0001; Gordon Wood, The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 197–214; Daniel Wirls and Stephen Wirls, The Invention of the United States Senate (Baltimore: Johns Hopkins University Press, 2004), 11–38; Elaine K. Swift, The Making of an American Senate: Reconstitutive Change in Congress, 1787–1841 (Ann Arbor: University of Michigan Press, 1996), 23–26.
4. "John Adams, Thoughts on Government," April 1776, in Kurland and Lerner, eds., Founders’ Constitution, Volume 1, Chapter 4, Document 5, accessed September 9, 2021, https://press-pubs.uchicago.edu/founders/documents/v1ch4s5.html, quoted in Richard, “Classical Roots,” 12; "Benjamin Rush, Observations upon the Present Government of Pennsylvania," 1777, in Kurland and Lerner, eds., Founders’ Constitution, Volume 1, Chapter 12, Document 8, accessed September 9, 2021, https://press-pubs.uchicago.edu/founders/documents/v1ch12s8.html, quoted in Wood, Creation of the American Republic, 246.
5. Wood, Creation of the American Republic, 213–14.
6. "Thomas Jefferson, Notes on the State of Virginia," 1784, in Kurland and Lerner, eds., Founders’ Constitution, Volume 1, Chapter 12, Document 11, accessed September 9, 2021, https://press-pubs.uchicago.edu/founders/documents/v1ch12s11.html; James Madison, “Vices of the Political System of the United States, April 1787,” Founders Online, accessed September 9, 2021, https://founders.archives.gov/documents/Madison/01-09-02-0187; Benjamin Rush to Anthony Wayne, May 19, 1777, in L. H. Butterfield, ed., Letters of Benjamin Rush (Princeton: Princeton University Press, 1951), 1:114–15, quoted in Wood, Creation of the American Republic, 233.
7. "Notes on the Debates in the Federal Convention, Thursday, June 7, 1787," Avalon Project, Yale Law School Goldman Law Library, accessed on September 9, 2021, https://avalon.law.yale.edu/18th_century/debates_607.asp; Alexander Hamilton, “Constitutional Convention, Speech on a Plan of Government, James Madison’s Version, [18 June 1787],” Founders Online, accessed September 9, 2021, https://founders.archives.gov/documents/Hamilton/01-04-02-0098-0003; Richard, “Classical Roots,” 20–21.
8. "Federal Farmer, no. 11, January 10, 1788," in Kurland and Lerner, eds., Founders’ Constitution, Volume 1, Chapter 11, Document 12, accessed September 9, 2021, https://press-pubs.uchicago.edu/founders/documents/v1ch11s12.html; "Federal Farmer, no. 4," October 12, 1787, in Kurland and Lerner, eds., Founders’ Constitution, Volume 4, Article 5, Document 5, accessed September 9, 2021, https://press-pubs.uchicago.edu/founders/documents/a5s5.html; Wood, Creation of the American Republic, 483–99.
9. Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), 228–39; “Term of the Senate, [26 June] 1787,” Founders Online, accessed September 9, 2021, https://founders.archives.gov/documents/Madison/01-10-02-0044; James Madison, “The Federalist Number 48, [1 February] 1788,” Founders Online, accessed September 9, 2021, https://founders.archives.gov/documents/Madison/01-10-02-0269; Madison, “The Federalist Number 10, [22 November] 1787,” Founders Online, accessed September 9, 2021, https://founders.archives.gov/documents/Madison/01-10-02-0178; Wood, Creation of the American Republic, 430–67; James Madison, “The Federalist No. 62, [27 February 1788],” Founders Online, accessed September 9, 2021, https://founders.archives.gov/documents/Hamilton/01-04-02-0212; Madison, “The Federalist Number 63, [1 March] 1788,” Founders Online, accessed September 9, 2021, https://founders.archives.gov/documents/Madison/01-10-02-0312.
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 | 202012 30When a New Congress Begins
December 30, 2020
On January 3, 2021, the U.S. Senate will convene to open the 117th Congress. The Senate typically operates according to long-standing rules, traditions, and precedents, and the first day of a new Congress is no exception. On this day, the Senate follows a well-established routine—parts of which date back to the first Congress in 1789. The Constitution mandates that Congress convene once each year at noon on January 3, unless the preceding Congress designates a different day. In odd-numbered years, following congressional elections, a “new” Congress begins.
On January 3, 2021, the U.S. Senate will convene to open the 117th Congress. The Senate typically operates according to long-standing rules, traditions, and precedents, and the first day of a new Congress is no exception. The Constitution mandates that Congress convene once each year at noon on January 3, unless the preceding Congress designates a different day.1 In odd-numbered years, following congressional elections, a “new” Congress begins. From 1789 until 1934, a new Congress began on March 4. The Twentieth Amendment, adopted in 1933, changed the opening date to January.
Regardless of the change in date, the first day of a new Congress for the Senate follows a well-established routine—parts of which date back to the first Congress in 1789.
The day begins with the opening prayer and recitation of the Pledge of Allegiance, followed by the swearing-in of senators-elect (and sometimes appointed senators), the establishment of a quorum, notifications to the House of Representatives and the president, and often the election of a president pro tempore and other officers. Unlike the House of Representatives, the Senate, as a continuing body, does not have to adopt or readopt its rules with each new Congress. Article 1, section 3 of the U.S. Constitution provides for staggered six-year terms for senators. The Senate is divided into three classes for election purposes, and every two years only one-third of the senators are elected or reelected, allowing two-thirds to continue serving without interruption.
Before senators-elect can begin exercising their legislative responsibilities, each must present his or her certificate of election and then take the prescribed oath of office in an open session of the Senate. The certificate of election, issued by the governor from the incoming member’s state, confirms that the person was duly elected. Affixed with the state’s official seal, it is delivered to the secretary of the Senate for official recording. After the opening prayer and recitation of the pledge, the vice president of the United States, who serves as the president of the Senate, announces the receipt of certificates. Following established tradition, senators-elect are then escorted down the center aisle of the Senate Chamber to the presiding officer’s desk. Typically, the other senator from the member-elect’s state serves as an escort. Occasionally, the senator-elect chooses an alternative or additional escort, such as a former senator or a family member who also served in the Senate.
The vice president, or, in the vice president’s absence the president pro tempore, administers the oath of office. Senators-elect take the oath to defend the Constitution by raising their right hand and agreeing to the words spoken by the presiding officer:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Some hold in their left hand a personal Bible or other text of personal significance. The final act in the oath-taking ceremony occurs as the secretary of the Senate invites each newly sworn senator to sign his or her name on a dedicated page in the Senate Oath Book.
Following the official oath-taking ceremony in the Senate Chamber, newly sworn senators join the vice president in the Old Senate Chamber, where they reenact the swearing-in ceremony. Prior to 1987, when the opening day of the Senate was first broadcast on live television, the official swearing-in ceremony was normally off-limits to cameras of any sort. The long-standing ban on photography in the Chamber led newly sworn members to devise an alternative way of capturing this moment for their families, constituents, and posterity. In earlier years, the vice president invited newly sworn senators and their families into his Capitol office for a reenactment for home-state photographers. In 1983 the reenactment ceremony moved to the restored Old Senate Chamber and has been held in that historic setting ever since.
Once the senators-elect have been sworn in, the vice president directs the Senate clerk to call the roll to establish a quorum, which the Constitution requires in order for the Senate to conduct business. The majority leader then moves to adopt resolutions to notify the House and the president that the Senate has a quorum and is ready to proceed. The language of those resolutions has changed very little over the last 230 years. In 1791 the Second Congress convened in Philadelphia. After senators-elect presented their credentials and the vice president administered the oath of office, the Senate passed the following motion:
Ordered, That Messrs. Butler, Morris, and Dickinson, be a committee to wait on the President of the United States, and inform him that a quorum of the Senate is assembled agreeably to the Constitution, and ready to receive any communications he may be pleased to make to the Senate.2
On January 3, 2019, the Senate adopted this resolution:
Resolved, That a committee consisting of two Senators be appointed to join such committee as may be appointed by the House of Representatives to wait upon the President of the United States and inform him that a quorum of each House is assembled and that the Congress is ready to receive any communication he may be pleased to make.3
While the committee members appointed to “wait upon the President of the United States” did so in person in the 18th and 19th centuries, today the committee informs the president by telephone.4
The Senate next proceeds to other administrative business, which often includes the election of the president pro tempore, the secretary of the Senate, the sergeant at arms, and the chaplain. The Senate typically adopts a resolution early in the new Congress to set procedures for operating the Senate during the next two years. The resolution may include committee ratios, committee membership, and other agreements made between the majority and minority parties on the operation of the Senate. This is usually a routine matter approved by unanimous consent agreement, but there have been occasions when the Senate faced unique challenges, making organization difficult. With much of the “housekeeping” out of the way, the Senate is ready to take up legislative and executive business. With each new Congress, all pending legislation and nominations of the previous Congress expire, requiring many bills and resolutions to be reintroduced.
Guests seated in the Senate galleries and those watching from home will note that members often stand behind their Senate desks to deliver their remarks. At the start of each Congress, the desks are reapportioned between the two sides of the Chamber based on the number of senators from the two political parties. For many years, the desks were assigned on a first-come, first-served basis. When a seat became available, the first senator to speak for it won the right to it. Today, at the beginning of each Congress, senators are given the option to change their seats, based on seniority. Three desks that are not assigned in this manner are the Daniel Webster Desk, the Jefferson Davis Desk, and the Henry Clay Desk. Senate resolutions govern the assignment of these desks.
To learn more about the opening day of a new Congress or other Senate traditions, visit Frequently Asked Questions about a New Congress, Guide to Senate Traditions, or Learn about the Senate.
Notes
1. U.S. Const., amend. XX, § 2.
2. Senate Journal, 2nd Cong., 1st sess., October 24, 1791, 323.
3. “Informing the President of the United States That a Quorum of Each House Is Assembled,” Congressional Record, 116th Cong., 1st sess., January 3, 2019, S5 (daily edition).
4. Valerie Heitshusen, "The First Day of a New Congress: A Guide to Proceedings on the Senate Floor." Congressional Research Service, RS20722, updated December 22, 2020, 4.
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 | 202009 17Celebrating Constitution Day
September 17, 2020
In 2004 Senator Robert C. Byrd of West Virginia introduced legislation designating September 17 of each year as Constitution Day and requiring public schools and government offices to provide educational programs to promote a better understanding of the Constitution. The Senate’s annual Constitution Day event, sponsored by the Office of the Secretary of the Senate and presented by the Senate Historical Office, has become a favorite Capitol Hill tradition.
More than two centuries after its ratification, the United States Constitution remains a fundamental document. Strengthened by amendments, it continues to guide our public officials and the people they serve. It has endured through civil war, economic depressions, assassinations, and even terrorist attacks, and remains a source of wisdom and inspiration. To encourage Americans to learn more about the Constitution, Congress established Constitution Week in 1956, to begin each year on September 17—the date in 1787 when delegates to the federal convention signed the Constitution. In 2004 Senator Robert C. Byrd of West Virginia took it a step further, sponsoring legislation designating September 17 of each year as Constitution Day and requiring public schools and government offices to provide educational programs to promote a better understanding of the Constitution.
Appropriately, Senator Byrd kicked off the Senate's first Constitution Day celebration in 2005 with a speech in the historic Caucus Room in the Russell Senate Office Building. He shared his personal devotion to the Constitution (a copy of which he always kept in his pocket) and stressed the importance of educating Americans about their founding document. "Just as the birth of our nation depended on the quality, knowledge, and experience of the men who gave it life, its continued vitality depends on the efforts of our generation, and of future generations, to keep the vision of its Framers alive," Byrd stated. "It depends on the personal commitment of each and every one of us to learn, to understand, and to preserve the governing principles that are set forth so clearly and powerfully in the text of our remarkable Constitution."
For the Senate Historical Office, Constitution Day has been an opportunity to explore the ways in which the Constitution has shaped the Senate, the role of the Senate in amending the Constitution, and how the Senate has exercised its constitutional prerogatives and fulfilled its constitutional duties. The annual event has examined the debates of the federal convention in 1787 that led to the creation of the Constitution, the heated arguments of the state ratification process, as well as the nature of federal elections under the Constitution and how Congress has changed the electoral process over time.
These events also have examined how the Constitution has been amended, from the adoption of the Bill of Rights in 1791 to the passage of the Seventeenth Amendment providing for the direct election of U.S. senators in 1913 and the Nineteenth Amendment providing for female suffrage in 1920. Other topics have included the Senate's constitutional role in the treaty-making process and the various constitutional crises confronted by the Civil War Senate, including defining a quorum in the wake of secession, Civil War amendments to the Constitution, and the readmission of states to representation after the war.
In recent years, Constitution Day programs have expanded to include guided exhibits featuring facsimiles of historic documents, maps, and images. In 2016, to commemorate the 200th anniversary of the creation of the Senate’s first permanent standing committees in 1816, Senate historians and archivists created four archival exhibits that demonstrated how committees aid the Senate in exercising its powers under the Constitution. Highlighting the work of four committees established in 1816 (Foreign Relations, Finance, Judiciary, and Commerce), these exhibits illustrated how Senate committees provide a forum for constitutional government in action.
Using case studies from different eras, the documents revealed how Senate committee work has changed since 1816 and highlighted the growing role of committee staff. In the 20th century, as the nation grew to superpower status, the Senate reformed and modernized its committee structure, allowing for increased professional staff who brought their expertise to the legislative and oversight process. For the many staff members attending the event, this served as a reminder of the vital role they play in Senate history and the continuing importance of archiving committee records.
In 2017 the Senate’s Constitution Day event focused on the contentious debate during the Constitutional Convention of 1787 over representation that culminated in the Great Compromise of 1787, the agreement that established state equality rather than population-based representation as a defining characteristic of the Senate. Following a brief historical presentation, those attending the event explored archival exhibits illustrating the debate that produced this compromise, how the compromise was received during the ratification process, and its enduring legacy.
Constitution Day 2018 examined how the constitutional provision for equal state representation in the Senate led to fierce battles over the admission of new states. Article IV of the Constitution specifies that "New States may be admitted by the Congress into this Union." The Constitution also gave Congress the power "to dispose of and make all needful Rules and Regulations respecting the Territory . . . belonging to the United States." The Constitution, the 1787 Northwest Ordinance, and later treaties under which the U.S. acquired new territories—such as the Louisiana Purchase Treaty of 1803—governed Congress's practices for organizing territories and setting conditions for statehood.
Only after territories had served a period of tutelage and built up the requisite population and economic resources could they apply to Congress for equal status as a state. As Assistant Historian Daniel Holt explained in his Constitution Day 2018 presentation, the Senate frequently “took center stage in the often-contentious battles over admission of new states. Each additional state has held the potential to upset the existing balance of power in the Senate." To accompany this event, the Historical Office created an online feature entitled "On Equal Footing: The Constitution, the Senate, and the Expanding United States," which included historical information and the archival exhibits from this presentation.
The Constitution of 1787 established the framework for the United States government, but it has fallen to succeeding generations to interpret and implement its principles. Every year, Constitution Day provides the opportunity for citizens to revisit the nation’s founding document and examine how it shapes this nation more than two centuries after its ratification. The Senate Historical Office welcomes this annual opportunity to continue its explorations into the origins of the Constitution and its role in the history of the United States Senate.
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