The United States Constitution Explained: Article I - The Legislature: Part 3 - Senate 101
Whew… We survived Section 2. Now that we have discussed the Lower house with all of its population counting controversies, this section should feel as easy as pie. As we briefly discussed in Article 1 Part One, the Senate was based on the British Parliament's upper house. Like the house of lords representing the sovereignty of their rule over the land they owned, the Senate was designed to represent the individual State governments at the federal level.
Section 3 – Clause One
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
The Senate was something that most states were familiar with because its structure is similar to the Congress that existed under the Articles of Confederation. However, while each state has equal representation, they each have two votes instead of one. This is the largest change from the Articles' Congress to the Senate. Having two votes for each state instead of one breaks down the monolithic nature of voting. It allows each Senator to vote for what he or she believes is the best for her State without necessarily having to agree with their counterpart. It also allows Senators to cast their own vote instead of submitting to a vote that doesn't match his or her beliefs because the other delegates had a majority.
Government turnover is an essential part of representative democracy. However, running elections for Senators every two years or every four years or even half of them every eight years leaves too much room for rapid change of membership to meet the goals of the Senate. The Framers chose every six years because that allowed them (as described below) to elect one-third of the Senate every two years. This will enable it to be the slowest body to shift to the country's political whims and to be a useful deliberative check against rapid change that may not have a broad consensus regardless of other branches' political ambitions.
As to the choosing of senators, I know many of you are thinking, "Hey, wait I, am like 95% sure I voted for a Senator in the last election, and there is a runoff election for a Senate seat happening in Georgia." In our first post, I talked briefly about the 17th amendment's change to the direct election of Senators and how that changed the individual's relationship to the national government. I want to go deeper, but for the sake of keeping the same pattern of interpreting the text as it was initially written, I will wait until we reach the 17th amendment.
Section 3 – Clause Two
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies 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.
As we discussed above, senators will swap out every six years instead of the every two that Representatives swap out or the every four that Presidents swap out. Once you have a rotation figured out, it is no issue. Just elect/appoint a new senator into the seat that is up for grabs every 6 years, and you are good to go. When everyone is starting their first term at the same time, however, it defeats the purpose of the 6-year terms to have the whole senate change out at once. As unfair as it was for the first group of senators to draw straws to figure out how long their first term would be, it was just part of the price to be paid to capture the goals for all future Senators' terms.
As we talked about with Representatives, it is essential to define what should happen when vacancies occur. For anyone who casually studies politics today, you know it is not uncommon for Senators, especially to be older in age, so a vacancy by death becomes a genuine possibility. Also, committing 6 years to serve your state may become impossible for people because of issues in their personal lives. For example, they have children, and a spouse passes, so they need to be more involved at home, or they get expelled by congress (which will explain more about in our post on section five), or any other myriad of reasons someone may need to resign. In this case, they give the state executive the power to appoint a new Senator until the legislature meets. This ensures there is no reason that a state remains underrepresented for a significant period of time. It is important to note that Senators who are appointed rather than elected are still Senators and bear all of the same rights and responsibilities.
Section 3 – Clause Three
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
As we talked about with the Representatives, it makes no sense for someone to represent a state that they do not currently reside in because they could be easily swayed to support their home state over the one they were chosen to represent. They add a higher age limit to this house because the goal is to get people involved in politics or have hard-earned wisdom through their years of working. The average life expectancy in 1787 for white males in The United States was only around forty years. So at thirty, on average, you would be somewhere between 50 and 75 percent of the way through your life. They expect that those people would have the necessary wisdom and influence to make wise decisions in the Senate. Lastly, they increase the amount of time as an American Citizen from 7 years to 9 years. This correlates to the age change in that they want most of the years where you gained this hard-won wisdom to have happened in America so that you are concerned only with America's interests.
Section 3 – Clause Four
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
Per the Senate.gov website,
"The Constitution is quite unspecific in its definition of the vice president's role as presiding officer, beyond casting tie-breaking votes. John Adams, the first vice president, attempted to influence the Senate's decisions on legislation during his first term, but eventually came to see the presiding officer as a neutral figure. That role has remained constant since that time. Adams cast more tie-breaking votes (29) than has any vice president who succeeded him. By contrast, during his eight years of service as vice president, George H.W. Bush cast only eight tie-breaking votes, Al Gore broke four ties, and Vice President Dick Cheney voted eight times to break ties. The vice president is not at liberty to address the Senate, except by unanimous consent. Nor should any senator speak while presiding, other than to make necessary rulings and announcements or to maintain order."
Using this to help frame our understanding, we can better break down the President of the Senate's role and why it was given to the Vice President.
Whenever you have a body dealing with issues that can have heated and consistent debate, you need someone to make sure that the rules and procedures that the body has agreed to are followed. Also, as with any voting body with an even number of members when fully assembled and votes by a simple majority, ties will happen from time to time. Rather than wait for the first tie and assume that the likelihood of it would be small, the Framers went ahead and provided for this case. This is the role of the President of the Senate.
Without the President of the Senate, deciding ties within an evenly membered body would be an impossible task to complete fairly. While there were not defined political parties with as much power as they do today, they still needed to worry about allegiances to home states or future political ambitions. Giving any member the ability to vote twice to resolve a tie would potentially give one state 50% more representation on that particular matter.
Back then, the Vice President had little defined responsibility on the executive side other than working with the President and cabinet, so they thought managing the upper house of the legislature would be a suitable place to put him. Given the close relationship the Vice President would have to the President, it makes sense to make him or her the President of the Senate because he or she would most likely cast their tie-breaking vote in the direction that the President would lean. This would essentially mean that in a tie, you could handle the presidential veto process in house rather than going through the whole process. Basically, it would be similar to the Senate asking the President, "Hey man, can't decide what to do with this bill. If we pass it, are you going to sign it, or should we just go back to the drawing board now?"
Fun Fact: It was a good idea to handle the really complex issue of ties early because the first tie happened about four and a half months after the Constitution was ratified!
Section 3 – Clause Five
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
As we talked about regarding Representatives and Senators, the Framers wanted to have plans on if, when, and how to replace key government pieces. In this case, they wanted to make sure there was someone to preside over the Senate and ensure that rules and regulations are followed no matter whether the Vice President was available to preside. It is important to note that, unlike when the Vice President presides, the President pro tempore is a duly elected Senate member and can speak on any issue. Also, they do not get to break a tie. If a tie happens when no Vice President presides as the President of the Senate, the motion fails and must be put through the process again.
Section 3 – Clause Six
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
As we talked about earlier, rather than a criminal indictment, impeachment is the way to bring formal charges against someone in public office. Once these charges are levied by the House of Representatives, it is the Senate's job to try them. Because impeachments are separate and unique job responsibilities of senators alone, the Constitution states that they must have a different oath or affirmation to participate. The Senate rules require each Senator to swear (or affirm) that he or she will "do impartial justice according to the Constitution and laws." The oath was initially adopted before proceedings in the first impeachment (Senator Blount in 1798) and has remained mostly unchanged since.
To eliminate any potential political or ambition related conflicts of interest, they purposely choose the Chief Justice to preside when the President is tried in an impeachment instead of the Vice President. While it has never happened, it can be assumed that in the case that Vice President is impeached, the President pro tempore would preside. This is because, in any absence of the Vice President, that is who would preside over all other senate matters. As a check on the potential for strong political affiliations (wow, they nailed that one on the head, didn't they), they wanted a supermajority to convict in impeachment trials rather than the simple majority that the House of Representatives needs to levy the charges.
Section 3 – Clause Seven
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Just because you are in public office does not mean that you are above the law, nor do you lose your rights as an American Citizen to a trial by a jury of your peers. As such, impeachment trials have no ability to sentence a person to jail, a fine, or any other typical punishment because they are held in the Senate, not a court of law. Impeachment convictions carry a different set of penalties: removal from office and the inability to hold a government position again.
Next, it explicitly states that a person who is impeached and convicted can still be prosecuted in the normal legal system. Later on, in Article II Section 4, the Constitution states that impeachment convictions can only be for treason, bribery, and other high crimes and misdemeanors. All of these carry stiff legal penalties, and the individuals involved must be thoroughly investigated, tried, and, if convicted, punished. For my Bill of Rights experts in the crowd, this is not akin to double-jeopardy, the idea that you cannot be tried twice for the same crime, because the first trial is in the Senate and is, therefore, a political process rather than a criminal one.
In our next post, we will continue on with Article I, Section 4, and I promise it will be a much shorter one. Please remember to follow us on Instagram and Facebook @marchforthfortheconstitution for other Constitution content and share us with your friends. When we reach 100 followers on our Instagram or Facebook page, we will pick one lucky follower to give away a $25 Amazon gift card! BIG NEWS ALERT: March Forth will be producing a podcast! Beginning this month, our founder, editor, and lead writer Matt Loft will be hosting The Publius Podcast. The podcast's goal is to go more in-depth than we can in these posts in a way that will hopefully be more engaging and easier for our audience to learn from. Stay tuned to our Instagram and Facebook pages for updates on when and where you can find the podcast!