Jane Chong: The president can do whatever he wants, which is why he can’t
The point is simply that no assessment of how impeachment trials are supposed to work is complete without consideration of just how much stock the Founders placed in the senators’ indirect election, and why. In “Federalist No. 64,” to support his argument that senators could safely be vested with the power to approve treaties, John Jay claimed that state legislatures could be expected to appoint “those men only who have become the most distinguished by their abilities and virtue” and “whose reputation for integrity inspires and merits confidence.” During the first half of the 19th century, the Senate rose to the Founders’ expectations, at least according to historians like Robert Caro and H. W. Brands. In their telling, the antebellum Senate was America’s most revered institution—the elite, deliberative counterpart to the rambunctious, popularly elected House. In this so-called golden age, the Senate floor served as the country’s main stage, and its greatest orators—John Calhoun of South Carolina, Henry Clay of Kentucky, and Daniel Webster of Massachusetts—were the celebrities of their time.
The French diplomat Alexis de Tocqueville famously, and snootily, disdained the “vulgarity and … poverty of talent” of the “obscure individuals” who made up the House of Representatives. “It is said that the representatives of the people do not always know how to write correctly,” Tocqueville scoffed. Yards away, however, was “the door of the Senate, which contains within a small space a large proportion of the celebrated men of America,” whom he praised as “eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose language would at all times do honor to the most remarkable parliamentary debates of Europe.”
Tocqueville attributed the “strange contrast” between the chambers entirely to the manner of their members’ selection. Although both assemblies reflected the choices of the people, in his estimation, the fact “that the House of Representatives is elected by the populace directly, and that the Senate is elected by elected bodies” changed everything. The "transmission of the popular authority through an assembly of chosen men” resulted in a Senate that reflected the best of the American spirit, a body capable of representing the community’s “elevated thoughts” and “nobler actions” rather than its “petty passions” and “vices.”
Michael Gerhardt and Jeffrey Rosen: How to revive Madison’s Constitution
If all this sounds uncomfortably elitist, that’s because it was, at least by modern standards. James Madison did not merely claim, in “Federalist No. 51,” that prudence counseled dividing the legislature into two branches governed by “different modes of election and different principles of action”; he went so far as to argue, in “Federalist No. 63,” that the Senate was to “be sometimes necessary as a defense to the people against their own temporary errors and delusions.” Elbridge Gerry, later Madison’s vice president, similarly attributed the “excesses of democracy” to the public’s vulnerability to manipulation: “The people do not lack virtue, but are the dupes of pretended patriots.” U.S. senators, carefully handpicked by state legislators whose own pride was on the line, could defend the people against duping, as wealthy landowners (Morris actually used the term aristocracy) endowed with the intellect and education—and relatedly, backbone—that money affords. Or so the thinking went.