Chapter Two -- Part C Legal History and the U.S. Constitution |
Impeachments "Made in USA": something old, something new, some assembly required
Sometime in the last year, I read from the internet about a group of Colonial Unitarian immigrants, who were not from England, and who had a background in printing. When they came to the U.S., each person brought one piece of a printing press. When they were all here, they re-assembled it. I wonder if it was put back together exactly the way it was taken apart. Did it work at all — as well — worse, or even better? Was it re-assembled by an individual, or a committee? Is it in a museum somewhere, where we can look at it?
We’ve already looked at most of the English impeachment "pieces". In addition to England’s experience, there is also a substantial history of impeachment in America before the Constitutional Convention. I will argue shortly that it would be a serious mistake to look at any of the pre-Constitutional American impeachment history as precedent in any binding sense for impeachments under the Constitution. However, it is important to note some uniquely American aspects to impeachment, and some American innovations regarding the impeachment process.
Early American impeachments go back as far as 1635. [31] Although by the mid and late 1700’s Americans who were highly educated and had extensive knowledge about English law apparently numbered at least in the hundreds, there was little American legal knowledge before the 1700’s. Regarding American law in the 1600’s: "There were almost no lawbooks - original, reprinted or imported. In most of the colonies there were extremely few trained lawyers and even the chief justices were rarely lawyers; the highest courts were legislative or executive. Laymen administered a sort of natural equity." [32] The first impeachments were essentially criminal proceedings, where Colonial legislatures fulfilled their judicial function. At this time the term "impeachment" may have been an imprecise usage, to indicate generally that someone was being indicted in the Legislature. American impeachments first came to the attention of the English Privy Council in 1706, with this result: "...crown lawyers denied the assemblies the right to impeach anyone for anything." [33] Only Parliament had the right to impeach. To the minds of English lawyers, Colonial legislatures were more akin to city councils. While various means of legal redress were available to the Colonists, impeachment was not an option. From 1701 forward, Colonial impeachment efforts began to contain elements of the idea of checks and balances between different institutions having independent power. During this time there was also an ongoing dispute over the right of Colonial legislatures to impeach. At the end of the Colonial period: "...the colonists tested impeachment as a tool to resist imperial policy and assert the rights of the lower house as the representatives of the people." [34] The issue of the "right" of Colonial legislatures to impeach may have sharpened the broader dispute over the claimed English right to govern the Colonies without Colonial representation.
During the Colonial period there were two important American innovations regarding impeachment. First, in many instances impeachment was "decriminalized", in the sense that the only punishment resulting from conviction was removal from office. Second, in contrast to England, where the House of Lords was the only body that conducted impeachment trials, in American a number of different combinations of legislative bodies and judges were used. Impeachment processes were formalized in State Constitutions before the Federal Constitutional Convention met in 1787. However, the Articles of Confederation had no written national impeachment process. Under the Articles of Confederation there was a national Congress of one house, but no standing federal judiciary and no federal executive officer. Effectively, under the Articles of Confederation there was no one to impeach. The term "impeached" appears once in the Articles of Confederation as part of Article V: "Freedom of speech and debate in Congress shall not be impeached or questioned in any Court...". [35] This suggests an awareness in the Colonies of the English impeachment of Dr. Sacheverell for his preaching of "dangerous opinions". This may have been to prevent Members of Congress from being impeached at the State level.
Chapter Four reviews the Constitutional Convention’s proceedings in arriving at our Constitution’s impeachment and removal provisions. As background for Chapter Three, I want to present three points regarding these proceedings that are important to understanding exactly what our Constitution specifies regarding impeachment and removal.
First, regarding the use of any impeachment in America before our Federal Constitution became effective, this is important background knowledge. However, as already suggested it is a serious mistake to think of them as precedent that in any way should compel a specific outcome in a Senate trial. This is true for four reasons. Regarding the Constitution itself, the establishment of the Federal Constitution as governing law is a complete and clean break with all past national law. Specifically, the Constitution supersedes the Articles of Confederation, the only previous written form resembling a national government before the Constitution. While specific phrases in the Constitution have specific legal meanings, some more definite than others, there is no body of written law or written precedent outside the Constitution that stands as a binding earlier precedent within the terms and structure of the Constitution. Regarding pre-Constitution American impeachments, we must keep in mind that provisions for impeachment and removal in the Federal Constitution are provisions to safeguard the entire nation against both treason and tyranny. Either of these can destroy our Republic. The function of all impeachment at the Colonial or State level guarded against dangers that were similar, but more limited in scope, because the danger was within only a specific state. Regarding the structure of our Federal Constitution, it has a system of checks and balances that is unique to our historical and current requirements for a federal government. There are similar features in the government structure for American impeachments in Colonies and at the State level, but no government structure paralleled the structure of our Federal Constitution, and the requirements for a federal and a state government structure are different in many ways. Finally, because things can be improper or go wrong in so many ways within a national public service subculture, and because circumstances change, there must always be an ability to "discover" new kinds of wrongdoing. How else can we purge it? Because of these considerations, there is an inherent limit on the relevance of all past impeachment precedent as a defense in showing that a specific instance of alleged wrongdoing is not impeachable.
Second, as suggested above, for impeachments "Made in America" there was "some Assembly required". But what assembly? Something like the House of Lords? An assembly or a court of Judges? A combination of legislators and judges? Something else entirely? All these ideas were considered. For most of the course of the Convention, the thinking was towards trying impeachments by the Judiciary. A modification to "...the Senate shall have the sole Power to try all impeachments..." came relatively late in the Constitutional Convention. There is no question in my mind that the Senate has the sole power to hold a specialized kind of trial, called an impeachment trial, for any and all impeachments by the House. The thesis of this book affirms that. But this thesis also affirms that in the case of an impeachment based on a criminal violation of statutory law, there is a second trial venue provided for under our Constitution.
With specific regard to the question of this second trial venue, let’s look at a crucial part of the Constitutional Convention’s proceedings, from September 8th to the signing on September 17th. On September 8th, the Convention turned to again consider impeachment issues. The section debated was an earlier version of this final text of Article II regarding the executive: "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." The earlier version that was debated September 8th had the words: "...conviction by the Senate...". Mr. Madison made a motion, and I quote from his Debates: "...to strike out the words — ‘by the Senate’ after the word ‘conviction.’". [36] This motion failed, on a vote of two states "ay", nine states "no". On the same day, "...A Committee was then appointed by Ballot to revise the stile of and arrange the articles which had been agreed to by the House." [37] This committee of five included Mr. Madison. Four days later, September 12th, a printed final draft of the entire unamended Constitution was distributed to the delegates at the Convention. Although the motion to delete the phrase "...by the Senate..." had been voted down, this phrase was in fact gone in the final printed draft. Concluding debates continued on this final draft for four full sessions. During these concluding debates, several changes were made to the final draft. However, the issue of reinserting the phrase "...by the Senate..." was never revisited in these concluding debates. The Article Two Section 4 presented earlier in this paragraph stood unchanged, from its printing in the final draft, to the Constitution that was approved by the Convention. My conjecture here is this: that as a member of the five person committee designated on September 8th, Mr. Madison continued to lobby for his change of deleting the phrase "...by the Senate...", that this was agreed to by the committee, and that it was assented to by the Convention. As I will try to show in Chapter Four, if this is what happened, Mr. Madison had a specific intention: to provide for a Judiciary trial and Conviction as a second venue for effecting removal of an impeached person if the impeachment was for wrongdoing based on violations of statutes that fell within the scope of the Judiciary jurisdiction. Regardless of whether my conjecture is correct or incorrect, this fact remains: our Constitution Article Two Section 4 says "...shall be removed from Office on Impeachment for, and Conviction of,...". It does not say "...and Conviction by the Senate of,..."
This brings us to the concluding background issue regarding impeachment and removal under the Federal Constitution. The United States was a small, fragile nation when Washington served as President. There was great skepticism then about relying on any system of government that rested too heavily on a foundation of "human goodness" alone, unsupported by clear written rules and boundaries that can help the people who serve in the government of a Republic to withstand the corrupting tendency of power. Our nation’s early leaders were people of uncommon integrity, principles, and wisdom. As a group, they went through a lifelong curriculum of nation building. Our nation and our Republican government got off to a good start, with a system of precedents, traditions and customs that have served us well for over two centuries. The integrity of the people who initiated our Federal government is a big reason why we have so few precedents to look at regarding Presidential impeachments, the ultimate check and balance function of Congress as against the Executive.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.