[Congressional Record (Bound Edition), Volume 147 (2001), Part 12]
[Senate]
[Pages 17243-17248]
[From the U.S. Government Publishing Office, www.gpo.gov]



                    THE SENATE AND THE CONSTITUTION

  Mr. BYRD. Mr. President, this is Constitution Week. Of course, I am 
talking about the U.S. Constitution. A point that all Governors and 
Senators might well remember: No State constitution in this country is 
like the Federal Constitution. No State's constitution so clearly and 
so strictly delineates the separation of powers as precisely as does 
the U.S. Constitution. So it is here in the Senate that the 
Constitution is defended--the U.S. Constitution--and it is here that we 
support the separation of powers, the checks and balances; and the one 
Constitution that we are bound by in this institution is the U.S. 
Constitution, a copy of which I hold in my hand. I want to take a 
little while today to talk about this Federal Constitution.
  On Monday of this week we marked the 214th anniversary of the U.S. 
Constitution. Of course, the Senate was not in on Monday, and 
consequently I have been forced to wait until today to speak about the 
Constitution. Again, this is Constitution Week. In tragic and sad 
times, we instinctively reach for what matters most in our lives: Our 
faith, our families, and our fundamental rights as Americans.
  As we struggle with the horrific events of September 11, we should 
take a measure of strength from the events of another September day, an 
18th century September day.
  On September 17, 1787, an extraordinary convention of American 
statesmen, meeting at Independence Hall in Philadelphia, adopted the 
Constitution of the United States of America. My memory may prove me 
wrong, but I believe that, too, was a Monday--as was September 17, in 
2001, this year of our Lord. So today I wish to commemorate that 
singular event by discussing several of the constitutional provisions 
that shape the structure and guide the operations of the U.S. Senate. I 
think there will never be a better time, or a more propitious time, or 
a time when we more need to think and to speak of the Constitution of 
the United States, than this time, and amidst the circumstances that 
have attracted the attention and galvanized the attention of Americans, 
wherever they may live--in this country or elsewhere--as well as the 
people of other countries. So it is timely to think about the 
Constitution of the United States.
  Imagine a U.S. Senate in which the State of West Virginia was 
assigned three Members while California was entitled to 30.

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  Or, consider a Senate in which Members served for life--or for just a 
single year.
  How about a system in which the House of Representatives elected the 
Senate?
  Or a Senate in which Members voted as a State block rather than as 
individuals?
  To our modern ear, these options sound preposterous, perhaps, but to 
the Framers of the Constitution, these proposals deserved serious 
consideration.
  There was nothing inevitable about the Constitution as we now know 
it. Every word required delicate construction, balancing, and 
refinement. In cases where the Framers could not fully agree on a 
particular point, they chose ambiguity--or even silence.
  Among that charter's 55 draftsmen--only 39 actually signed the 
document--there existed a vast fund, a vast reservoir of knowledge 
about the operation of legislative bodies. That knowledge served the 
Framers well as they struggled to fashion the institutional structure 
of the United States Senate.
  Let us examine some of the Senate-related options that the 
Convention's delegates confronted from the Convention's convening on 
May 25 until its adjournment on September 17.
  First the issue of representation. Delegates representing large 
States at the Constitutional Convention advocated a strong national 
government. In Edmund Randolph's Virginia Plan, the number of Senators 
in each State would be determined by that State's population of free 
citizens and slaves. Large States, then, stood to gain the most seats 
in the Senate. As justification for this advantage, these delegates 
noted that their States contributed more of the Nation's financial and 
defense resources than did small States, and therefore, deserved a 
greater say in Government.
  Small-State delegates countered with a plan designed to protect 
States' rights within a confederated system of government. Fearing the 
effects of majority rule, they, the small States, demanded equal 
representation in Congress. This was the system, they noted, that was 
then in effect under the Articles of Confederation. When the Convention 
agreed to divide the national legislature into two chambers, various 
Framers argued that every State should enjoy equal representation in 
both Chambers. In fact, some delegates threatened to withdraw from the 
Convention if it adopted any population-based representation plan.
  Other delegates sought a compromise between large State and small 
State interests. As early as 1776, Connecticut's Roger Sherman--he is 
one of the signers of the Constitution of the United States--Roger 
Sherman, as early as 1776 had suggested that the Continental Congress, 
in which each State had one vote, should be organized to represent 
people as well as States, and during the 1787 Convention, Sherman 
proposed the so-called ``Connecticut Compromise'' which provided 
population-based representation in the House of Representatives and 
equal State representation in the Senate.
  Benjamin Franklin agreed that each State should have an equal vote in 
the Senate except in matters concerning money. The Convention's grant 
committee reported Franklin's motion with some modifications to the 
delegates early in July. Madison led the debates against that measure 
believing it to be an injustice to the majority of Americans. Some 
small State delegates were reluctant even to support proportional 
representation in the House.
  On July 16, delegates narrowly adopted the mixed representation plan, 
the Great Compromise, giving States equal votes in the Senate. That is 
why we are here. The Presiding Officer would not be sitting where he is 
sitting today if there had not been a July 16 Great Compromise. The 
Official Reporter would not be here listening to me and taking down 
what I am saying. I would not be here. These young people who are our 
pages and who help us in so many ways to do our work for our 
constituencies would not be here. That was the Great Compromise, giving 
States equal votes in the Senate.
  The compromise resolved the Convention's most divisive issue and 
created a Federal system of Government.
  Senators already know what I am saying. Many people on the outside 
who are watching through that electronic eye up there know it. These 
things were taught long ago in the early years of a child's schooling, 
but this is Constitution Week. We need to be reminded, and now in the 
circumstances that confront this country and have confronted it 
especially since Tuesday, September 11, we must be reminded that we are 
to be guided by a constitution, the United States Constitution.
  We must zealously guard the powers of the legislative branch in times 
like these when there is a war, when there is a military conflict. 
Powers have a way of gravitating toward the Chief Executive, and it is 
in times like those, in times like these, that we must be very zealous 
and jealous of the constitutional prerogatives and powers that are 
vested in this body, the legislative branch.
  We must be on our guard more than ever because the Constitution lives 
and it will live when these circumstances are behind us, if and when 
they indeed are ever put behind us, and I assume that they will be put 
behind us at some point in time.
  It might be a good thing to point out here, just to remind Senators 
that the Continental Congress met behind closed doors. The Congress, 
under the Articles of Confederation, met behind closed doors. The 
Constitutional Convention, where the Framers gave us this Constitution, 
met behind closed doors, with sentries at the doors and the windows 
drawn. So, there we have food for another speech, another day.
  Be conscious of the Constitution and this institution (the Senate) 
and its prerogatives and its precedents, its rules. We need 
particularly now to be reminded of these things.
  A second major issue related to the number of Senators allotted to 
each State. Once the convention's delegates established the principle 
of equal State representation in the Senate, they needed to determine 
how many Senators a State would be allotted. Few, if any, delegates 
considered that one Senator per State would be sufficient 
representation. Lone Senators might leave their State unrepresented in 
times of illness or other absences, and they would have no colleague to 
consult with on State-related issues. Additional Senators would make 
the Senate a more knowledgeable body and, perhaps, better able to 
counter the influence of the House of Representatives. But, some 
believed a very large Senate would soon lose its distinctive character, 
would lack the agility needed to effectively counterbalance the House, 
and would make it easier for Senators to escape personal responsibility 
for their actions.
  Given these considerations, delegates had only a narrow choice 
regarding the number of Senators. During the Convention, they briefly 
discussed the advantages of two seats versus three. Gouverneur Morris 
of Pennsylvania, the man with the peg leg, stated that three Senators 
per State were necessary to form an acceptable quorum, while other 
delegates thought a third Senator would be too costly. On July 23, one 
week after the Great Compromise, only Pennsylvania voted in favor of 
three Senators. When the question turned to two Senators, Maryland 
alone voted against the measure, not because of the number, but because 
Luther Martin disagreed with the concept of per capita voting, which 
gave each Senator, rather than each State, one vote.
  Both the Congress under the Articles of Confederation and the 
Constitutional Convention used a voting method that gave each State one 
vote. This system of block voting was meant to reinforce State 
solidarity, but it often frustrated those State delegations divided by 
controversial issues. The alternative, of course, was for Members to 
vote as individuals. Those Framers who had served in State legislatures 
had ample experience with the per capita system. At the Convention, 
they spent little time debating the two proposed voting methods. On 
July 14, Elbridge Gerry of Massachusetts stated that per capita voting 
in the Senate would ``prevent the delays and inconvenience that had 
been experienced in

[[Page 17245]]

[the Continental] Congress and would give a national aspect and spirit 
to the management of business.'' One week later, Gouverneur Morris and 
Rufus King of Massachusetts added a per capita voting clause to their 
motion designating the number of Senators for each State. As I have 
already noted, Maryland's Luther Martin objected to the motion. A 
States' rights advocate, he regarded per capita voting as a departure 
``from the idea of the States being represented in the second branch.'' 
Consequently, Martin convinced his fellow Maryland delegates to vote 
against the two-Senator, per capita measure. Supported by every State 
except Maryland, both the measure's clauses passed on July 23, allowing 
each State's two Senators to vote as individuals, though still subject 
to the influence of States, constituents, and party policies.
  Because they did not have parties in those days, but I am speaking 
within the context of the current moment, the Constitution's Framers 
understood that no matter which method they chose for electing 
Senators, it would have a significant impact on the Senate's future 
relationships with the House, the people, and the States.
  From the beginning, most delegates dismissed any notion of 
implementing the British House of Lords' peerage system based on 
heredity and title. This system contradicted the egalitarian notions 
outlined in the Declaration of Independence. The system set forth in 
the Virginia Plan received little support, as well. Had this measure 
passed, the House would have selected Members of the Senate from 
nominations offered by the State legislators. The Senate could not be 
expected to serve as an effective check on the very institution 
responsible for its Members' election.
  Senators will recall that the Virginia plan was introduced by Gov. 
Edmund Randolph, a delegate from the State of Virginia, on May 29, 
1787. It is easy for me to remember the date of May 29 because it was 
on that date, 64 years ago, that I married my wife Erma; 64 years ago 
on May 29.
  The convention then considered a revised version of the Virginia 
Plan, which contained the clause, ``the Members of the Second Branch of 
the national Legislature ought to be chosen by the individual 
Legislatures.'' Most delegates easily accepted this election method, 
regarding it as the most ``congenial'' plan available. Only 
Pennsylvania's James Wilson criticized the idea. He believed that the 
State legislative method would ``introduce and cherish local interests 
and local prejudices.'' The alternative method, elections through 
popular vote, never gained the adherents it needed to become a viable 
option.
  In Federalist 63, Madison defended the plan of election by State 
legislatures against those who feared indirect elections would 
transform the Senate into a ``tyrannical aristocracy.'' For such an 
unlikely event to happen, the Senate, the State legislatures, the House 
of Representatives, and the people would all have to fall prey to 
corruption. Madison cited Maryland's successful experiment with 
indirect election. Elected by a unique electoral college system, the 
senate in Maryland showed no symptoms of tyranny, and in fact, had 
built a reputation unrivaled by any other state in the Union.
  Despite Madison's assurances, the system of indirect elections 
ultimately proved vulnerable to corruption. Following the Civil War, 
newspaper reporters accused State legislatures of accepting bribes or 
remaining willfully ``deadlocked,'' and therefore, unable to elect a 
Senator into office. Reformers reacted to these allegations by 
advocating a constitutional amendment that would provide for the 
election of Senators by popular vote. This one substantive correction 
to the Framers' handiwork for the Senate went into effect in 1913 as 
the Constitution's 17th amendment.
  And, next, to the issue of term length. The 6-year Senate term 
represented a compromise between those Framers who wanted a strong, 
independent Senate and those who feared the possible tyranny of a 
Senate insulated from popular opinion. While few delegates to the 1787 
Convention wanted to emulate the House of Lords' lifelong terms, or the 
Congress under the Articles Confederation's single-year terms, the 
Framers' reaction against these extremes helped shape their arguments 
for and against long terms in the Senate.
  Delegates examined the experience of the various State legislatures. 
Although the majority of States set 1-year terms for both legislative 
bodies, five State constitutions established longer terms for upper 
house members. South Carolina's senators received 2-year terms. In 
Delaware, the senate had 3-year terms with one-third of the senate's 
nine members up for reelection each year. New York and Virginia 
implemented a similar class system but with 4-year terms instead of 3. 
Only Maryland's Senate featured 5-year terms, making that legislative 
body the focus of the convention's Senate term debates.
  The delegates either praised Maryland's long terms for checking the 
excesses of lower-house democracy or feared them for the same reason. 
Some members of the Convention believed that even 5-year terms were too 
short to counteract the dangerous notions likely to emerge from the 
House of Representatives. In June, Madison, Edmund Randolph, and other 
convention delegates cited Maryland's experiences when they argued for 
long Senate terms. According to Madison, the senate of Maryland had 
never ``created just suspicions of danger.'' Far from being the more 
powerful branch, the senate had actually yielded too much, at times, to 
Maryland's House of Delegates. Unless the U.S. Senate obtained 
sufficient stability, Madison expected a similar situation under the 
new Constitution. He suggested terms of 7 years, or more, to counter 
the influence of the popularly chosen House of Representatives. Edmond 
Randolph believed that the primary object of an upper house was to 
control the larger lower house. He noted that Maryland's senate had 
followed this principle but had been ``scarcely able to stem the 
popular torrent.'' Seven-year terms, then, had a greater chance of 
checking the House than terms of 5 years or fewer.
  On June 13, the convention took up a provision for 7-year Senate 
terms. This encountered heated criticism from several Framers. For 
Alexander Hamilton, only lifelong terms could check the ``amazing 
violence and turbulence of the democratic spirit.'' Other delegates 
preferred 4-year terms. Madison devised a 9-year-term proposal with 
one-third of the seats subject to election every 3 years. He received 
little support for this plan, but he argued in its favor until the 
final votes on June 26. On that date, and following the failure of his 
own measure, Madison joined the majority of his colleagues in voting 
for a 6-year term. In the Federalist papers, Madison argued that 
Maryland's experiment with 5-year terms proved that slightly longer 
terms posed no danger to bicameral legislatures. In fact, he expected 
the agreed-upon 6-year terms to have a stabilizing effect on the new 
national government. Long terms would control turnover in the 
legislature. Long terms would allow Senators to take responsibility for 
measures over time. Long terms would make Senators largely independent 
of public opinion.
  The Articles of Confederation set no qualifications for delegates to 
the Continental Congress. It left these decisions up to the individual 
States. By contrast, convention delegates supported establishing 
membership limitations for House and Senate Members. Influenced by 
British and State precedents, they established age, citizenship, and 
residence qualifications for Senators, but voted against proposed 
religion and property requirements. There was a lot of sentiment 
especially on property requirements as to age. I might pay particular 
attention to that aspect.
  The Framers debated the minimum age for Members of the House of 
Representatives before they considered the same qualification for 
Senators. Although James Wilson of Pennsylvania State stated that 
``there was no more reason for incapacitating youth than

[[Page 17246]]

age, where the requisite qualifications were found,'' other delegates 
were in favor of age restrictions. I'm glad they did not have their 
way. They were familiar with England's law requiring members of 
Parliament to be 21 or older. Some lived in States that barred 
individuals from serving in their upper chambers who had not attained 
the age of 21 or 25.
  On June 25, 3 days after designating 25 as the minimum age for 
Representatives, delegates unanimously set a 30-year-minimum for 
Senators. In Federalist 62, Madison justified the higher age 
requirement for Senators. By its deliberative nature, the ``senatorial 
trust,'' called for a ``greater extent of information and stability of 
character,'' than would be needed in the more democratic House of 
Representatives. The Framers, not all of them by any means, trusted 
democracy.
  As to citizenship, under English law, no person ``born out[side] of 
the kingdoms of England, Scotland, or Ireland'' could be a member of 
either house of Parliament. While some delegates may have admired the 
``strictness'' of this policy, no Framers advocated a blanket ban on 
foreign-born legislators. Instead, they debated the length of time 
Members of Congress should be citizens before taking office. The 
States' residency qualifications offered moderate guidelines in this 
regard. New Hampshire's State senators needed to be residents for at 
least 7 years prior to election. In other States, upper house members 
fulfilled a 5-, 3-, or 1-year requirement.
  The Virginia Plan introduced by Edmund Randolph, on May 29, made no 
mention of citizenship when it was introduced to the Convention. Two 
months later, the Committee of Detail reported a draft of the 
Constitution that included a 4-year citizenship requirement for all 
Senators. On August 9, Gouverneur Morris moved to substitute a 14-year 
minimum. Later that day, delegates voted against Senate citizenship 
requirements of 14, 13, and 10 years before settling on 9 years as a 
residency requirement. The issue of foreign birth was particularly 
important in the Senate, whose responsibilities would extend to the 
review of international treaties. While the Framers were concerned that 
the Senate, especially, might be subject to foreign influence, they did 
not wish to offend foreign allies or close the institution to 
meritorious naturalized citizens. The 9-year provision made the Senate 
requirement 2 years longer than that for the House of Representatives. 
On August 13, the Convention confirmed the 9-year requirement by a vote 
of 8 States to 3.
  Inhabitancy: Although the Parliament of Great Britain repealed its 
residency law in 1774, no Convention delegates spoke against a 
residency requirement for Members of Congress. The qualification first 
came under consideration on August 6 when the Committee of Detail 
reported its draft of the Constitution. Article V, section 3 stated, 
``Every member of the Senate shall be * * * at the time of his 
election, a resident of the state from which he shall be chosen.''
  Two days later, Roger Sherman moved to strike the word ``resident'' 
from the portion of the clause that related to the House, and insert in 
its place ``inhabitant,'' a term he considered to be ``less liable to 
misconstruction.'' Madison seconded the motion, noting that 
``resident'' might exclude people occasionally absent on public or 
private business. Delegates agreed to the term, ``inhabitant,'' and 
voted against adding a time period to the requirement. The following 
day, they amended the Senate qualification to include the word, 
``inhabitant'' and passed the clause by unanimous agreement.
  We now turn to the issue of who gets to make executive and judicial 
nominations. Argued over the course of several weeks, the 
Constitution's nomination clause split the delegates into two factions. 
The first faction wanted the executive to have the sole power of 
appointment. The second wanted the Senate to have that responsibility. 
The second faction followed precedents that the Articles of 
Confederation and most of the State constitutions had established 
favoring legislative appointment. The Massachusetts constitution 
offered yet another approach. This third way particularly interested 
the convention delegates. For over 100 years, Massachusetts had divided 
the appointment responsibilities between its Governor, who made the 
nominations, and its legislative council, which confirmed the 
appointments.
  Rather than adopt the Massachusetts model immediately, the delegates 
initially agreed to language that split the responsibility in a 
different way. The President would appoint executive branch officers, 
who would serve during his term, and the Senate would appoint members 
of the judiciary because they would hold their positions for life--a 
period most likely to exceed the tenure and authority of one President. 
However, the Framers in favor of a strong executive argued that Senate 
appointments would lead to government by a ``cabal'' swayed by the 
interests of constituents. Other delegates, fearful of monarchies, 
wanted to remove the President entirely from the appointment process. 
On September 4, the Committee of Eleven reported an amended appointment 
clause. Unanimously adopted on September 7, the clause, based on the 
Massachusetts model, provided that the President ``shall nominate, and 
by and with the advice and consent of the Senate, shall appoint'' the 
officers of the United States--certain officers.
  As they debated the controversial treaty-making clause, the 
Constitutional Convention's delegates considered, but did not follow in 
whole, those precedents with which they were most familiar. In Great 
Britain, treaties were made by the king and, in certain cases, had to 
be approved by a majority vote in Parliament. The Continental Congress, 
which had no executive branch, dispatched agents to negotiate treaties. 
The treaties only went into effect after two-thirds, 9 out of 13, of 
the States approved the documents. This inefficient process was further 
complicated by the States' ability to enter into their own treaties. 
While the delegates agreed that the States could not continue to make 
treaties with foreign powers, they disagreed over the manner in which 
the United States should negotiate, draft, and ratify international 
agreements.
  On August 6, the Committee of Detail reported a preliminary 
Constitution to the full Convention. Article IX, section 1 stated, 
``The Senate of the United States shall have power to make treaties, 
and to appoint Ambassadors, and Judges of the Supreme Court.'' 
Throughout August and into the month of September, the delegates 
debated treaty-making as a separate issue from the rest of the clause. 
Several delegates opposed granting the Senate the sole control over 
treaty-making. It is a good thing that they did. While some wanted the 
executive to have that responsibility, others advocated involving both 
houses of Congress in the process. Small-State delegates, however, were 
inclined to keep the Committee of Detail's treaty clause because it 
gave each State an equal say in the adoption or rejection of treaties.
  On September 4, the Committee of Eleven reported a treaty clause that 
appeased many of the delegates. This is what it said: ``The President 
by and with the advice and Consent of the Senate, shall have power to 
make Treaties.'' After further debate, the delegates unanimously 
approved the clause on September 7. However, the clause was taken up 
again, this time to add to it the words, ``But no treaty shall be made 
without the consent of two-thirds of the members present.'' Shortly 
thereafter, the Convention passed James Madison's addition, ``except in 
treaties of peace,'' which would be ratified by a simple majority vote. 
The next day, the delegates struck out the peace treaty exception and 
considered dropping the Senate supermajority requirement as well. 
However, after two delegates cited the Continental Congress' ``two-
thirds of the States'' example, they voted to keep the two-thirds of 
the Senate provision.
  Although adopted by the Convention, the treaty clause continued to 
stir debate in the period before the Constitution's ratification. As 
one of the clause's strongest proponents, Alexander Hamilton defended 
the provision

[[Page 17247]]

in The Federalist 75. Remarkably, given the delegates' extreme 
dissension over treaty-making, he wrote, the clause ``is one of the 
best digested and unexceptionable parts of the plan.''
  Let me pause here to say that we can witness the Convention as it 
worked. And we know that time after time after time the Convention 
would vote one way one day, and a few days later vote on the same 
matter again and vote a different way, and then perhaps vote again 
before the close of the Convention and arrive at an entirely different 
conclusion.
  If the Convention had been open to the public, the Framers would have 
been severely restricted and constrained, and would have paused and 
thought once, twice, and three times, and more, before they would have 
changed their votes. They might, on a later date, have come to believe 
that in the earlier vote they had voted the wrong way.
  By having the closed Convention, by meeting secretly, they were able 
to have full discussions of a matter, have a tentative vote, vote one 
way, perhaps a few days later vote a different way, and in the final 
analysis, in order to do the right thing, after considerable reflection 
and after hearing the arguments of others, vote again finally and, 
perhaps, differently.
  That would have been very difficult to do had there been galleries, 
had there been the media, newspapers, had there been television--which, 
of course, there could not have been. It would have been difficult.
  I say that to say that in some situations voting in executive 
session, in secret session, may, in the last analysis, be in the best 
interests of the country.
  Early in the Convention, most delegates agreed that the inclusion of 
an impeachment provision would help to hold national officers 
accountable for their actions. Throughout the summer of 1787, committee 
members reported impeachment plans to the full Convention. The Virginia 
Plan proposed a supreme tribunal to hear and determine cases including, 
among other concerns, the ``impeachments of any National officers.'' On 
June 13, the Committee of the Whole amended the plan to provide that 
the President could be ``removable on impeachment of malpractices or 
neglect of duty.'' The revised measure did not specify the procedures 
for trying the President. In June and July, the Framers debated whether 
Congress should have a role in the impeachment process. Roger Sherman--
there that Connecticut delegate is again--Roger Sherman asserted that 
the ``National Legislature should have the power to remove the 
Executive at pleasure.'' Virginia's George Mason objected to Sherman's 
plan, claiming that the President would become merely a ``creature of 
the Legislature.'' John Dickinson of Delaware countered with an 
unsuccessful motion to make the executive ``removable by National 
Legislature at request of majority of State Legislatures.''
  You see, they were all over the place.
  On August 6, the Committee of Detail reported that the House of 
Representatives ``shall have the sole power of impeachment'' and the 
executive ``shall be removed from his office by ``conviction in the 
Supreme Court, of treason, bribery, or corruption.'' Two weeks later, 
the committee added that ``the judges of the supreme court be triable 
by the senate, on impeachment by the house of representatives.''
  Can you imagine what it would be like in this day and time to have a 
Constitutional Convention with all the doors open, the windows open, 
the galleries open, the media there? After every vote, Members would 
rush out the door to get before a camera and explain their votes. 
Members would not later be able to easily change their minds and their 
votes upon more careful thought, upon more considered reflection.
  So there are those today who would hem and haw and holler: Oh, we 
must not do this. We cannot do this. The people are entitled to hear 
everything we say.
  Well, those Framers were very wise men. It was they who wrote this 
Constitution which I hold in my hand. Of course, there have been some 
amendments added later, but those men were wise men. And, remember, 
they were placing their lives, their fortunes, and their sacred honor 
on the barrelhead.
  Of course, we had fought a war, but many of them were among those who 
voted on the Declaration of Independence in 1776.
  The constitutional plan then went for review to a committee 
consisting of one member from every State represented at the 
Convention. The committee removed the full Supreme Court from the 
process. The report, influenced by the Massachusetts Constitution of 
1780, stated, ``The Senate of the U.S. shall have power to try all 
impeachments [by the House of Representatives]''--naturally--``but no 
person shall be convicted without the concurrence of two thirds of the 
members present.'' Ah, there you have it now. Alexander Hamilton later 
explained this decision noting that no other institution would be 
sufficiently dignified--no other institution would be sufficiently 
dignified--or independent to handle the proceedings. The Framers 
debated the clause on September 8 and despite Madison's objection that 
the executive would become dependent on the legislature, the 
Convention, thank God, passed the final measure by a vote of eight 
States to two.
  Mr. President, there are, of course, other provisions in the 
Constitution that guide the operations of the Senate. But, those that I 
have just discussed serve to stoke our appreciation for this 
extraordinary charter of government that we are talking about. In 
closing, let us consider the words of James Wilson, one of 
Pennsylvania's eight delegates to the Convention. Here is what James 
Wilson told a meeting of Philadelphia citizens several weeks after 
September 17, 1787:

       Perhaps there never was a charge made with less reason, 
     than that which predicts the institution of a baneful 
     aristocracy in the federal Senate. This body branches into 
     two characters, the one legislative, and the other executive. 
     In its legislative character, it can effect no purpose 
     without the co-operation of the house of representatives: and 
     in its executive character, it can accomplish no object, 
     without the concurrence of the president. Thus fettered, I do 
     not know any act which the Senate can of itself perform: and 
     such dependence necessarily precludes every idea of influence 
     and superiority. But I will confess, that in the organization 
     of this body, a comprise between contending interests is 
     discernible: and when we reflect how various are the laws, 
     commerce, habits, population, and extent of the confederated 
     States, this evidence of mutual concession and accommodation 
     ought rather to command a generous applause, than to excite 
     jealousy and reproach. For my part, my admiration can only be 
     equaled by my astonishment, in beholding so perfect a system 
     formed from such heterogeneous materials.
  What a Constitution!
  I have often thought that the Creator of heaven and earth also had 
his hand in the creation of the Constitution of the United States. 
Whenever, wherever did such another illustrious gathering of men ever 
occur? And why at this particular time? Had it been 5 years earlier, 
the Framers may have lacked the experience that they ultimately had 
gained under the Articles of Confederation which enabled them to add 
provisions that would avoid some of the problems with which they had 
been confronted under the Articles.
  The country, such as it was at that time, the citizenry might not 
have yet had enough time--I say this particularly with reference to the 
leaders of the Convention and the other members--to so convincingly 
move them to the idea that mere amendments to the Articles of 
Confederation would not really be enough. There had to be a new start, 
a new beginning. They went outside the parameters of their authority to 
initiate that new beginning.
  Had it been 5 years later, it might have been impossible, because by 
then we were seeing the excesses of the French Revolution, with men and 
women being hauled to the guillotine. And so perhaps that is where God 
had His hand. It happened at the right time. It brought together the 
right men, learned men, wise men, experienced men.
  I thank Providence for this Constitution and for the men who had the 
foresight and the vision, the courage, the ability to listen to others 
and to change their minds. We can be thankful. But we should also be 
fully aware

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of our responsibilities to preserve that great document and to amend it 
only with great care and after great deliberation.
  At this perplexing time in this year of our Lord 2001, we must be 
ever more on guard that we, as the elected Representatives of a great 
people, as we go forth, hold in our hands, as it were, the Constitution 
of the United States; that we resist any temptation because of the 
demands of the moment, the exigencies of the day, we resist the 
temptation to put that Constitution aside in order to avoid debate and 
expedite the business before the Senate. Let's not hesitate to ask 
questions. Let's look before we leap.
  I yield the floor.

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