Chapter Four -- Part A Impeachment and Removal from Office Debates at the Constitutional Convention |
The structure of this chapter is a chronological summary and review of the Constitutional Convention’s debates regarding impeachment, and the broader issues of removal from office (including for disability or inability), the limits and dangers of executive power, and the Constitution’s system of checks and balances. Commentary on the thesis of this book is interwoven with this summary and review. The summary of the Convention’s debates is based entirely on Madison’s Debates.
Debate in the initial sessions of the Convention was based on a set of fifteen resolutions introduced on May 29th by Mr. Randolph of Virginia. These resolutions provided for a two house legislature, an executive to be chosen by the legislature, and a national Judiciary. The resolutions had only the bare bones of specificity, with blanks to be filled in for such issues as length of term. It seems the main purpose of Randolph’s resolutions was to provide a framework for the Convention to address and resolve in general terms some issues of the division and scope of power, and of jurisdiction. Resolution 9 provided for establishing the national Judiciary, having jurisdiction over "impeachment of any National officers". [1]
On June 1st the Convention began to consider the executive. A resolution was introduced that "...the Executive consist of a single person." [2] Mr. Sherman articulated the idea that the executive was to be "nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only..." [3] A term of seven years was approved, with no eligibility for re-election. [4] Election of the executive by the national legislature was approved. [5]
At this point Dr. Franklin presented a speech during the June 2nd session, which was read to the Convention. It was provided to Mr. Madison, who included it in his Debates. The speech addressed the question whether or not there should be a salary for the executive, but as the following excerpts show, it touched on a number of concerns regarding the dangers of executive power. From Dr. Franklin’s speech: "Sir, there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of honour that shall be at the same time a place of profit, and they will move heaven and earth to obtain it. The vast number of such places it is that renders the British Government so tempestuous... And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate; the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your Government and be your rulers. — And these too will be mistaken in the expected happiness of their situation: For their vanquished competitors of the same spirit, and from the same motives will perpetually be endeavouring to distress their administration, thwart their measures, and render them odious to the people... There is scarce a king in a hundred who would not, if he could, follow the example of Pharoah, get first all the peoples money, then all their lands, and then make them and their children servants for ever. It will be said, that we don’t propose to establish Kings. I know it. But there is a natural inclination in mankind to Kingly Government. It sometimes relieves them from Aristocratic domination. They had rather have one tyrant than five hundred. It gives more of the appearance of equality among Citizens, and that they like. I am apprehensive therefore, perhaps too apprehensive, that the Government of these States, may in future times, end in a Monarchy." [6] Madison wrote of Dr. Franklin’s resolution to not pay the executive a salary: "The motion was seconded by Col. Hamilton with the view he said merely of bringing so respectable a proposition before the Committee, and which was besides enforced by arguments that had a certain degree of weight. No debate ensued, and the proposition was postponed for the consideration of the members. It was treated with great respect, but rather for the author of it, than from any apparent conviction of its expediency or practicability." [7]
Immediately after Dr. Franklin’s speech was read, the Convention proceeded to the first brief consideration of removal and impeachment. Mr. Dickenson moved "that the Executive be made removable by the National Legislature on the request of a majority of the Legislatures of individual States." [8] This motion was subsequently defeated with only Delaware in favor. [9] Mr. Sherman suggested "the National Legislature should have power to remove the Executive at pleasure." [10] Mr. Mason opposed the idea of "making the Executive the mere creature of the Legislature as a violation of the fundamental principle of good Government." [11] Mr. Dickenson participated in the debate at length, advancing the central principle that "the Legislative, Executive, and Judiciary departments ought to be made as independent as possible...". [12] Mr. Williamson then moved "to add to the last Clause, the words - ‘and to be removable on impeachment and conviction of mal-practice or neglect of duty’ - which was agreed to." [13]
As things stood on adjournment of the June 2nd session, an embryonic Federal government was taking shape, with three independent branches: the first a two house legislature, the second an independent judiciary branch, the third an executive with a seven year term and not re-electable. The executive was to be removable on impeachment and conviction, with trial to be held by the judiciary. It is important to keep in mind that the discussion at this point was in very general terms. The workings of impeachment and removal cannot be expected to take any definite form until the basic institutions of the Federal government are themselves specified in sufficient detail.
The June 13th session concluded with a report on Mr. Randolph’s propositions, which had increased to nineteen in number. These approved resolutions show much of the basic form of the Federal government. The legislature consisted of two houses, one elected to three year terms in districts of each State, with representation proportionate to population, the second elected to seven year terms by state legislatures. Unlike the current Senate’s two votes per state, each state’s number of members in the second house of Randolph’s resolutions was also proportional to population. The executive was chosen by the legislature for a seven year term with re-election prohibited, and with veto power over acts of Congress that could be surmounted by a 2/3 vote of each house. An independent judiciary was established with "one supreme tribunal", all judges were appointed by the second branch of the legislature, and would serve "during good behavior". The executive was "to be removable on impeachment and conviction of malpractices or neglect of duty". How the impeachment process was to work between the two legislative houses wasn’t spelled out. Trials of "impeachments of any Nat. Officers", were part of the jurisdiction of the Judiciary. [14] Earlier in the June 13th session, Mr. Randolph and Mr. Madison had moved a "resolution respecting a National Judiciary, viz ‘that the jurisdiction of the National Judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony’ which was agreed to." [15]
On June 15th Mr. Patterson of New Jersey introduced an alternative plan to the set of Mr. Randolph’s resolutions. The Patterson plan was along the lines of a modification of the Articles of Confederation. The operation of Congress under the Articles of Confederation was altered in some ways, but it remained a one house legislature voting as one vote per state. The executive was elected by the legislature for an unspecified term length, and was ineligible for re-election. The executive was both "removable by Cong. on application by a majority of the Executives of the several States" and was also impeachable. An independent Federal judiciary was established, with a supreme Tribunal of Judges appointed by the Executive to serve "during good behavior", and with jurisdiction "to hear & determine in the first instance on all impeachments of federal officers." [16]
Debate on these two plans commenced June 16th. Mr. Lansing of New York made the point that the Randolph plan went beyond the scope of the Convention’s authority, which was to recommend amendments and improvements to the Articles of Confederation, not to replace the Articles of Confederation. Mr. Patterson suggested "If the confederacy was radically wrong, let us return to our States, and obtain larger powers, not assume them of ourselves." [17] Both Mr. Lansing and Mr. Patterson did not sign the Constitution that emerged September 17th. The Articles of Confederation were characterized as more of a treaty agreed to by thirteen sovereign States, rather than a national government. The Articles of Confederation specified that modification was possible only by unanimous consent of the States.
At this point the Convention reached a crisis over the question of proceeding to develop an entirely new document that would replace the Articles of Confederation. On June 19th the Convention voted seven States yes, three States no, one State divided, to continue consideration of the Randolph resolutions in preference to proceeding to consider the Patterson plan. This vote can also be interpreted as a vote to proceed to replace the Articles of Confederation rather than amending them.
As part of the debate over the two plans, Mr. Hamilton gave a lengthy speech on June 18th, and then presented what he termed a sketch of his own ideas. This was almost a third alternative plan in and of itself, but it was not introduced as a third plan. In Hamilton’s sketch, both the Senators and the executive were to be elected by electors chosen by the people, and were to serve "during good behavior", in other words, for life unless a violation of "good behavior" was established. In many ways Hamilton’s plan resembles a limited, elected monarchy. Mr. Hamilton’s sketch included one heading regarding impeachment that introduced into the Convention for the first time some of the language and ideas that were to form the final impeachment provisions (Hamilton termed the executive a Governor): "IX. The Governour Senators and all officers of the United States to be liable to impeachment for mal- and corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit - All impeachments to be tried by a Court to consist of the Chief _____ or Judge of the superior Court of Law of each State, provided such Judge shall hold his place during good behavior, and have a permanent salary." [18]
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