Chapter Two -- Part A Legal History and the U.S. Constitution |
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 apparently overcame "Monaco fever", and joined the United States of America, fourteen months late, on a vote of 34 yeas and 32 nays. [3]
James Madison’s Debates in the Federal Convention of 1787 (Madison’s Debates), while not the official minutes of the Convention, is regarded as a major original source document recording the proceedings of the Convention. Two facts may be of interest to "conspiracy nuts". First, Madison’s Debates was not published until 1836, forty-nine years after the Convention. Second, although the Constitution, the result of the Convention, was published and debated, the proceedings were effectively made secret by a vote of the Convention to place them in George Washington’s custody. [4] The Convention had also adopted this rule in the third session, on May 29th: "That nothing spoken in the House be printed, or otherwise published or communicated without leave." [5] Most if not almost all of those present at the Constitutional Convention participated in subsequent efforts to secure ratification by the States. However, debate was effectively confined to references to the text of the Constitution. There would be no public references by those who attended the Convention to the specific content of the debate proceedings that resulted in the Constitution. Whether we like it or not, the idea of a government "elite" that sometimes withholds "crucial information" from the American people, apparently goes back at least as far as to the Constitutional Convention. The possibility of war with a major European power or a coalition of European countries was a constant danger. Under these circumstances, the Founders considered it essential that a national government be constituted, both to secure against threats of war from Europe, and to try to ensure that future wars would not occur between independent states in America. Our Constitution was a compromise. If detailed information about the candid discussions behind that compromise had been published at the time, Madison’s Debates reveals there were plenty of "sound bites" to defeat it. It appears that as a result of these considerations, the Constitution itself was published for debate, but the arguments that went into shaping it were not published until years later.
Our Constitution is both a work of compromise and the work of a committee. It is the first written Constitution for any historical political state that was not the work of one individual. Most of the Convention’s proceedings were as what is called a "committee of the whole". This means the entire convention met and functioned as one big committee. Although James Madison, our fourth President, is widely regarded as the "Father of the Constitution", in fact no one person wrote it.
George Washington was elected President of the Convention. Because of his presiding role, he deliberately refrained from participating in the Convention’s debates. Up to the last day of debate, General Washington made no motions, introduced no resolutions, made no speeches, and did not express his opinion to the Convention on anything. On the last day of the Convention, he spoke in favor of a motion that the number of Representatives in the House shall not exceed one for every 30,000 rather than one for every 40,000. [6] Other than that, General Washington was neutral during the Convention’s proceedings.
To give you an idea of the depth with which the Convention considered the Constitution, the final Constitution that emerged and was ratified (before the Bill of Rights), was approximately four thousand one hundred words, from "We the People..." to "...We have hereunto subscribed our Names..." Based on ninety eight sessions before signing, and an assumed average of five hours per day, you can think of the Constitution as coming forth at an average rate of somewhere around eight words per hour. [7] Of course, there must have been a lot of discussion in small groups when the Convention was not in session. Only in America would someone think of trying to quantify the efficacy of a political document by doing a calculation like this! But doesn’t it tell us something about what a carefully considered document our Constitution is?
Our Constitution is the result of many compromises, including on the incendiary issue of slavery. In fairness to our Founding Fathers, evidence shows at least some of them thought slavery would gradually decline and cease as an institution. They did not foresee the cotton gin, which radically changed the amount of finished cloth that could be produced from cotton for a given amount of labor. As a whole, our Constitution was intended to provide the structure for an enduring plan of government. Equally important because it was a necessary precondition, our Constitution was calculated to both survive and bridge the political divisions of America at the time of its adoption.
On the day the Constitution was signed, a speech written by Benjamin Franklin was read to the Convention. A copy was given to James Madison and the speech is in his notes. Dr. Franklin, who at age 82 was the elder statesman of the Convention by a full generation, said in part: "...having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others ... I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe further that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best." [8]
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.