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Commentary

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Commentary

1-1

Our Constitution is the longest serving written national Constitution in the world.

In this chapter, we will briefly review the history of our Constitution, together with background information from English and American legal history. Our focus is on provisions regarding both impeachment, and other Constitutional ways of removing office holders from office. This background information is essential to understand the Constitutional theory advanced in Chapter Three. The nub of that Constitutional theory, and the primary thesis of this book, is as follows: If a President is impeached by the House of Representatives based on allegations of a criminal violation of a Federal Statute, there are two Constitutional ways to remove the President from office. One way of removal is by Conviction in a Senate impeachment trial. However, a second way of removal from office is Conviction in a Judiciary criminal trial that commences based on the House Articles of Impeachment. The relevant Constitutional provision is this, from Article Two, Section 4: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Until the Clinton impeachment proceeding, the universally accepted interpretation of the word "Conviction" in this passage has been that it refers to conviction by the Senate. As you will see in Chapter Three, supported by the background information of this chapter, the word "Conviction" in this crucial Constitutional passage refers properly to either Senate conviction in an impeachment trial, or Judicial conviction in a criminal trial. You are now headed in the direction of that conclusion.

Our Constitution and the Convention of 1787

Our unamended Constitution was written by a Convention of fifty-five men, chosen as delegates by the thirteen original States. They deliberated from May 25, 1787 until September 17, 1787 when the Constitution was approved to be forwarded to the Continental Congress. The Convention recommended to Congress that the Constitution should be submitted to State Conventions for ratification. The decision to approve the Constitution would be based on each State’s yes or no vote to either ratify, or not ratify, the unamended Constitution. The Constitution was to become effective when nine States had ratified. [1] State ratifying conventions could and did suggest amendments, but this was separate from each State’s yes or no ratification vote.

The Convention had been called when it became more and more clear that the current national governing plan, the Articles of Confederation, was fundamentally failing to meet the vital requirement of providing a national government with sufficient power and authority to defend the United States against threats from European powers. Although the United States existed under the Articles of Confederation, it existed more as a trans-national organization, such as NATO, than as a national government. Under the Articles of Confederation, what are today individual States of the United States were in many ways more like small, independent nations.

Although the Articles of Confederation was recognized to have many serious weaknesses, ratification of the newly drafted Constitution was by no means a foregone conclusion. Mr. Gerry of Massachusetts, one of the three delegates who refused to sign, stated "...his fears that a Civil war may result from the present crisis of the U.S." [2] From December 7, 1787 to January 9, 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut became the first five ratifying states, Pennsylvania 46 yeas and 23 nays, Connecticut 128 yeas and 40 nays, the remaining three unanimous. On February 6, 1788 Massachusetts ratified on a close vote of 187 yeas and 168 nays, and recommended nine amendments. Maryland and South Carolina then ratified, both by better than two to one votes.

The Constitution became effective, and law for the nine ratifying States, when New Hampshire’s Convention voted 57 yea and 47 nay on June 21, 1788. The next two ratifying States were closely divided: Virginia’s June 25, 1788 vote was 89 yeas and 79 nays, and New York ratified July 26, 1788 by 30 yeas and 27 nays. Although the Constitution was technically in effect, the approval of New York and Virginia was still crucial to the practical success of the plan. Refusal to ratify by either of these two large States would have separated the approving States into two distinct geographical regions, blocking a convenient overland connection. On September 30, 1788 Pennsylvania became the first State to select Senators under the Constitution. George Washington became our first President February 4, 1789, although at that time North Carolina and Rhode Island had still not ratified the Constitution. On May 29, 1790 Rhode Island became the last state to join the United States of America, on a vote of 34 yeas and 32 nays. [3]

It is beyond the scope of this book to consider many of the controversies that surround the origins and ratification of the Constitution. There was concern at the time that a powerful Federal government might lead to tyranny. Some opponents held it was designed to advance the interests of wealthy individuals. Many did not see any urgency in replacing the Articles of Confederation.

From the point of view of the Founders, the possibility of war with one or more major European powers was an inherent danger. An effective national government was believed to be necessary both to secure against threats and dangers from Europe, and to try to ensure that future wars would not occur between independent states in America.

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