§ 67. “The Senate.”

The Senate is one of the most conspicuous, and unquestionably the most important, of all the federal features of the Constitution, using the word federal in the sense of linking together and uniting a number of co-equal political communities, under a common system of government. The Senate is not merely a branch of a bicameral Parliament; it is not merely a second chamber of revision and review representing the sober second thought of the nation, such as the House of Lords is supposed to be; it is that, but something more than that. It is the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented. They are so represented for the purpose of enabling them to maintain and protect their constitutional rights against attempted invasions, and to give them every facility for the advocacy of their peculiar and special interests, as well as for the ventilation and consideration of their grievances. It is not sufficient that they should have a Federal High Court to appeal to for the review of federal legislation which they may consider to be in excess of the jurisdiction of the Federal Parliament. In addition to the legal remedy it was deemed advisable that Original States at least should be endowed with a parity of representation in one chamber of the Parliament for the purpose of enabling them effectively to resist, in the legislative stage, proposals threatening to invade and violate the domain of rights reserved to the States.

That the Senate is the Council of States in the Federal Parliament is proved by the words of this section. There are to be six senators for each Original State. That the States, and not the people, are actually represented in the Senate is shown by the requirement that the “equal representation of the several Original States shall be maintained.” Equality of representation, it is argued, is a natural corollary of State representation, because the colonies were, prior to federation, politically equal; equal in constitutional power and status, although not necessarily equal in territory or population. Territory and population afford no absolute test of political status. The true test is the power to govern. Crown colonies would not have been admitted members of the Federal Partnership, on terms of equality with the responsible-government colonies. Further, it was one of the terms of the federal bargain that, in consideration of the transfer of general powers to the Commonwealth, each colony represented in the Convention should, on becoming a State, maintain its original relative equality and individuality unimpaired. That could only be done by equality of representation in the Council of States. Without the adoption of that principle the federation of the Australian colonies would not have been accomplished.

After prolonged and exhaustive debates the Federal Convention, by decisive majorities, accepted the principle of equal representation of Original States in the Senate, as a positive and indispensable condition of the Federal scheme. The question had to be considered, not so much from its logical and symmetrical aspect—not so much as a principle capable of satisfactory dialectical analysis and vindication—but rather as one of the terms of the Federal compact, which is based on compromise. The problem to be solved in the case of the Australian colonies desiring to federate was similar to that which had to be solved by the framers of the American Constitution; it was—how to reconcile the creation of a strong national government with the claims and susceptibilities of separate, and, in their own eyes, quasi-sovereign States. The solution of the problem was found in a Parliament partly national and partly Federal. The national part of the Parliament is the House of Representatives—the organ of the nation. The Federal part of the Parliament is the Senate—the organ of the States, the visible representative of the continuity, independence, and reserved autonomy of the States, linking them together as integral parts of the Federal union. As quasi-sovereign entities, it was contended that they were entitled to equal representation, because they were constitutionally and politically equal; inequality in the number of people within their jurisdiction did not constitute inequality in their quasi-sovereignty; in sovereignty there were no degrees. This was the only logical ground suggested. Whether it was

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sound or unsound is not so material as the fact that a majority of the Australian communities affirmed that they would not agree to transfer a part of their political rights and powers to a central Legislature except on the condition that, as States, they should be equally represented in one of the Chambers of that Legislature.

The functions and basis of the Senate are fully explained and vindicated in the annexed quotations from standard authorities and extracts from speeches delivered in the Federal Convention. The fact that equal State representation cannot be taken away, even (as may be contended) by an amendment of the Constitution, fully warrants the presentation of the case for the Senate in the language of some of its strongest advocates.

“Whatever may now be thought of the reasoning of the contending parties, no person who possesses a sincere love of country and wishes for the permanent union of the States can doubt that the compromise actually made was well founded in policy, and may now be fully vindicated upon the highest principles of political wisdom and the true nature of the government which was intended to be established. It may not be unprofitable to review a few of the grounds upon which this opinion is hazarded. In the first place, the very structure of the general government contemplated one partly federal and partly national. It not only recognized the existence of State governments, but perpetuated them, leaving them in the enjoyment of a large portion of the rights of sovereignty, and giving to the general government a few powers, and those only which were necessary for national purposes. The general government was, therefore, upon the acknowledged basis, one of limited and circumscribed powers; the States were to possess the residuary powers. Admitting, then, that it is right, among a people thoroughly incorporated into one nation, that every district of territory ought to have a proportional share of the government; and that among independent States, bound together by a simple league, there ought, on the other hand, to be an equal share in the common councils, whatever might be their relative size or strength (both of which propositions are not easily controverted); it would follow that a compound republic, partaking of the character of each, ought to be founded on a mixture of proportional and equal representation. The legislative power, being that which is predominant in all governments, ought to be above all of this character; because there can be no security for the general government or the State governments without an adequate representation, and an adequate check of each in the functions of legislation. Whatever basis, therefore, is assumed for one branch of the legislature, the antagonist basis should be assumed for the other. If the House is to be proportional to the relative size, and wealth, and population of the States, the Senate should be fixed upon an absolute equality, as the representative of State sovereignty. There is so much reason and justice and security in such a course than it can with difficulty be overlooked by those who sincerely consult the public good, without being biassed by the interests or prejudices of their peculiar local position. The equal vote allowed in the Senate is, in this view, at once a constitutional recognition of the sovereignty remaining in the States, and an instrument for the preservation of it. It guards them against (what they meant to resist as improper) a consolidation of the States into one simple republic; and, on the other hand, the weight of the other branch counterbalances an undue preponderance of State interests tending to disunion. Another and most important advantage arising from this ingredient is the great difference which it creates in the elements of the two branches of the legislature.” (Story, Comm. on the Const. §§ 697–9.)

“The state legislatures ought to have some means of defending themselves against encroachments of the national government. And what better means can we provide than to make them a constituent part of the national establishment? No doubt there is danger on both sides; but we have only seen the evils arising on the side of the state governments. Those on the other side remain to be displayed; for congress had not power to carry their acts into execution, as the national government will now have.” (Geo. Mason, in the Philadelphia Convention, 7th June, 1787.)

“The Senate of the United States is the only upper legislative chamber in the world that has the strength to resist the will of the electorate for a considerable period of time. It represents the Federal principle in the government, and, besides its legislative, has important executive functions.” (Foster, Comm. I. p. 457.)

“The name of Senate is taken from a body which ruled ancient Rome; and its prototype was the body of senior warriors with whom the king or chieftain held his councils of war; but in its legislative functions it resembles the Roman tribunate more closely than its name-father, and its immediate model was the House of Lords.” (Id. p 459.)

“We may imagine very easily in a moment's reflection what would have been the condition of this country at this moment had the Senate of the United States been constituted on a different principle. If the size and populations of the several States had

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been the test of representation in the Senate of the United States, I think it is not too much to say, in sober minded truth, that this Republic would not have endured until now. Many and many have been the times when, if the right of the Senators of each State to resist and defeat the current of popular passion and prejudice which arises sometimes in the action of the popular body, the House of Representatives, had failed to exert itself, as it would have failed if the Senate had been constituted as the national House of Representatives, discord and revolution would almost certainly have caused the dismemberment of the Union.” (Senator George F. Edmunds, cited in Foster, Comm. vol. I. p. 467.)

“Although there has been no need of its interposition to protect the small from any encroachment by the larger States, until the Civil War the Senate was more conspicuously the guardian of State rights in general. Their advocates maintained the position that the body was an assembly of ambassadors from sovereign States. During Washington's administration, North Carolina directed her senators to execute a deed ceding land to the United States: Senator Tazewell, of Virginia, declined Jackson's offer of a place in the cabinet, and said:—‘Having been elected a senator, I would as soon think of taking a place under George IV. if I was sent as minister to his court, as I would to take a place in the cabinet.’ Insistence has frequently been made upon the right of State legislatures to instruct their senators in Congress. In 1808, John Quincy Adams resigned after voting for the embargo in opposition to the wishes of his constituents. A senator, in 1828, after arguing against the Tariff of Abominations, said, ‘as the organ of the State of Kentucky he felt himself bound to surrender his individual opinion, and express the opinion of his State.’ John Tyler, in 1836, before he was President, resigned his place in the Senate because the Virginia legislature had instructed him to vote in favour of the expunging resolution, which he could not conscientiously approve. These doctrines are now abandoned The Senators consider themselves as members of an ordinary legislative body. They pay no more attention to the instructions of State legislatures than do members of the House; and in fact, since their terms are longer, they are more inclined to disobey them.” (Foster, Comm. I. pp. 494–6.)

“A survey of its position throughout the history of the United States shows that the Senate has maintained, almost without interruption, the respect of the American people, and that it has vindicated the wisdom of its creation; while State senates are usually more despised than State houses of assembly. It has been shorn of but a single power, that to originate general appropriation bills, which the House has, by their continuous rejection when sent there, refused to permit it to exercise successfully, although the Senate has more than once recorded a protest asserting its prerogative; but in practice, through its power of amendment, the loss is rather nominal than real.” (Id. 496.

“What I mean is an upper chamber, call it what you may, which shall have within itself the only conservation possible in a democracy—the conservatism of maturity of judgment, of distinction of service, of length of experience, and weight of character—which are the only qualities we can expect to collect and bring into one body in a community young and inexperienced as Australia.” (Sir Henry Parkes, in the Federal Convention, 1891; Convention Debates, p. 26.)

“If the Australian people desired unity, it would, perhaps, be a question open to discussion whether the Senate should or should not be an elected body, but when they desire Union only, it is essential that there should be in the Federal Government some body representing the Provinces as such; some body sufficiently strong, from the nature of its constitution, to uphold the rights of the Provinces whom it represents. What other body than an elected Senate can be suggested? It is no answer to point out objections to an elected Senate, unless you are prepared to suggest some other mode of appointment which is open to less objections. If there is to be some outward and visible sign of recognition of State rights, if the ‘natural’ desire of the small States is to be given effect to, how can it be better effected than by equal representation in the Senate? Their ‘desires’ will have to be ascertained, and consent obtained before any Union can be formed, and we must never forget the saying of Solon, who, when asked if he had given the Athenians the best possible laws, replied, ‘I have given them the best they can bear.’ As Mr. Bagehot himself remarks, a Federal Senate, a second House which represents State unity, has this advantage: it embodies a feeling at the root of society—a feeling which is older than complicated politics, which is stronger a thousand times over than common political feeling; the local feeling, ‘my shirt,’ says the Swiss State patriot, ‘is nearer to me than my coat.’ An elected Senate in which each State is equally represented is a guarantee that no law will be passed, not only without the consent of the majority of the people, but also without the consent of a majority of the States. By the election of Senators by each State for each State you insure the respect and attachment of the State as a whole, not only for the particular Senators they have elected, but also for the whole federal constitution of which they form a part.” (Sir R. C. Baker; Manual for use of Convention of 1891, p. 61.)

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“All Federal Governments have their Senates or Councils of the States, and in all of them the Senate is based upon the principle that in a Federation the States must be represented as well as the people. The principle, if not as old as the hills, goes as far back as the Achæan League, where each city, independent of its size, had one vote. And the reason why the principle is universal is not far to see. It is probable that no small States would care to link their fortunes with large States if they were liable to be out-voted and ignored by virtue of the superior population of their greater brethren. Certainly the American States would never have set aside their loose confederation, unworkable as it was, if it had not been for this method of alleviating their fears, and of extinguishing their jealousies. In their Senate each State, the great and the pigmy, is equal. We shall undoubtedly to a large extent have to recognize this principle here.” (Mr. Howard Willoughby, Australian Federation [1891] p 58.)

“The individualism of the States after Federation is of as much interest to each colony as the free exercise of national powers is essential to that aggregation of colonies which we express in the term Federation. If the one trenches upon the other, then, so far as the provinces assert their individuality overmuch, the fear is an approach to a mere loose confederation, not a true Federation. The fear on the other hand is, if we give the power to encroach—that is if we represent the federated people only, and not the States in their entities, in our Federation—then day by day you will find the power to make this encroachment will be so gladly availed of that, day by day and year by year, the body called the Federation will more nearly approach the unified or ‘unitarian’ system of government. We cannot adopt any form of government the tendency of which will be, as time goes on, to turn the constitution towards unification on the one hand, and towards a loose confederacy on the other. We must observe that principle, or else we do not observe the charge laid upon us by the enabling Act, which lays on us the duty to frame a ‘Federal’ Constitution under the Crown. So, therefore, I take it there must be two Houses of Parliament, and in one of these Houses the principle of nationhood, and the power and scope of the nation, as constituted and welded together into one by the act of Federation, will be expressed in the National Assembly, or House of Representatives, and in the other Chamber, whether it is called the Council of the States, the States Assembly, or the Senate, must be found not the ordinary checks of the Upper House, because such a Chamber will not be constituted for the purposes of an Upper House; but you must take all pains, not only to have a Parliament consisting of two Chambers, but to have it constituted in those two Chambers in such a way as to have the basic principle of Federation conserved in that Chamber which is representative of the rights of the States; that is that each law of the Federation should have the assent of the States as well as of the federated people. If you must have two Chambers in your Federation, it is one consequence of the Federation that the Chamber that has in its charge the defence of State interests will also have in its hands powers in most matters coordinate with the other House.” (Mr. Edmund Barton, Conv. Deb., Adel., pp. 21–23.)

“In all four legislatures [England, Germany, France and the United States] the distribution of the representation in the upper houses is made with but little regard to the census of the population. In England and in the United States, no regard at all is paid to the principle of proportionality; in Germany, not much; in France, considerable. If there is any one controlling principle applicable to all these cases, it is the representation of local governmental organizations. In the Senate of the United States, this is the exclusive principle. In the German Federal Council, it is the dominant principle. In the French Senate, considerable regard is paid to the census of the population in determining the number of senatorial seats to be assigned to each dèpartement; but within the dèpartement the effect of this concession to proportionality is modified by a very great discrimination in favour of the less populous communes as regards the number of representatives accorded them in the electoral colleges. In England alone no regard seems at present to be paid to local governmental or administrative organizations in the distribution of the seats in the upper house. If we look, however, to history, we find that the representation of England in the House of Lords was originally very closely connected with the local organizations; while the number of seats in that house now occupied by representative peers from Scotland and Ireland is fixed by statute, and is thus defended against the power of the Crown on the one side, and the accidents of extinction on the other. These statutes are based far more upon territorial considerations than upon the idea of proportionality. We may say then, I think, that the principle controlling the distribution of seats in the upper houses of the legislatures of these typical systems is the representation of the local governmental or administrative organizations. This is a most valuable principle. It tends to preserve the real fruits of the historic development of the State. It gives opportunity for the exertion of a larger influence by the cultured minority; and it gives more security to the rights of that minority. Many of the greatest statesmen have been brought forward through the influence of this principle. The organizations which have not the

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strength of numbers have been compelled to search diligently for their best talent in order to maintain, in fact, their legal equality. The principle, however, is frequently assailed as mediæval and contradictory to the doctrine of popular sovereignty. From the view which we take of the province of legislation, viz., the interpretation of the reason of the State rather than the registration of the popular will, this objection appears irrelevant. Something more conclusive than the demand for proportionality must be adduced before we can be called upon to admit that this system of distributing representation is faulty. If the less populous community were always the more cultured, this would certainly be a better distribution than the principle of numbers could afford. It is because the less populous community may chance to be also the less cultivated that the system is in some degree unreliable. It would not, therefore, serve as the exclusive system of distribution, i.e., the system for both legislative chambers. When, however, it is balanced by the principle of distribution according to population in the other house, there is every reason to believe that it contributes powerfully to the production of sound legislation, and that it is a most wholesome check upon the radical tendencies of mathematical politics.” (Burgess, Political Sc. II. pp. 114–116.)