Harmful or Unconstitutional Law
What happens if the House or Senate passes a harmful or unconstitutional law?
10
A fourth objection [to the Senate as impeachment court] comes from the Senate’s union with the Executive in making treaties. The objectors say that when a corrupt or perfidious treaty is made, the Senators would have to judge themselves. If they conspired with the Executive to betray the interests of the nation in a ruinous treaty, would they get the punishment they deserved if they were the impeachment court? Would they find themselves guilty of the accusation brought against them for the treachery?
11
This is the most earnest and reasonable objection against this part of the Constitution. But it rests on an erroneous foundation.12 The Constitution provides security against corruption and treachery when forming treaties. This security comes from the numbers and characters of the people who are to make them. Both the President and two-thirds of the Senate, a body carefully selected by each State legislature, must approve treaties. This assures fidelity in forming treaties.
When writing the Constitution, the convention might have included a punishment for the President if he doesn’t follow the Senate’s instructions or doesn’t act with integrity during treaty negotiations. They might also have suggested how a few of the leading individuals in the Senate might be punished, if they used their influence in the Senate for foreign corruption. But the convention could not suggest impeaching and punishing two-thirds of the Senate, if the Senate agreed to an improper treaty.
The Constitution does not include a method for punishing a majority of the Senate or the House for passing a very harmful or unconstitutional law. I don’t believe any government has ever done this.
How could a majority in the House of Representatives impeach themselves? This idea is no better than two thirds of the Senate putting themselves on trial. If the House of Representatives can pass an unjust and tyrannical law and not be punished, why should more than two thirds of the Senate be punished for approving an injurious treaty with a foreign power?
The Senate and House of Representatives need to feel free and independent to discuss issues. The members must be exempt from punishment for acts done in a collective capacity. Society’s security depends on the care taken to put the trust in proper hands, people who want to execute it with fidelity. It should be as difficult as possible for them to conspire in any interest opposite to that of the public good.
13 If the Executive misbehaves by perverting the instructions or contravening the views of the Senate, the Senate will want to punish the abuser and defend their authority. For this, we can count on their pride, if not their virtue.
We Will Never Forget, 9/12/2001
Mary E Webster
The Federalist Papers: Modern English Edition Two is available on my website.