Chapter Four -- Part C Impeachment and Removal from Office Debates at the Constitutional Convention |
The Draft Constitution of August 6, 1787
On August 6th the Committee designated on July 24th presented to the Convention a draft Constitution, consisting of twenty three Articles. The draft was approximately the same length as the final Constitution signed September 17th. As noted earlier, many sections had similar or identical wording to the final Constitution. However, the organization of the draft Constitution was significantly different from the final version. Following are two summaries. The first is a brief review of some of the main provisions of the draft version regarding the three branches of government, noting differences with the final Constitution. The second is a more detailed treatment of impeachment and removal provisions in the draft Constitution, again noting differences with the final Constitution.
In the draft Constitution, the House and Senate are very similar to those of the final form. In the draft, the Senate is prohibited from amending money bills, where in the final Constitution the Senate is only prohibited from originating them. The draft gives Congress the right to specify a uniform qualification regarding holding property, in other words, a minimum net worth to be a Member of Congress. The Legislative powers specifically delegated to Congress are similar between the draft and the Section 8 final versions of the Constitution. As an example of one difference: the draft authorizes Congress to "emit bills on the credit of the United States", whereas the final Constitution only specifies "to coin Money" as a Legislative power. While in some cases significant, the differences between the draft Constitution and Article Two, Section 8 of the final Constitution won’t be examined here with regard to the questions of impeachment or removal. The draft contains a long Article IX on procedures for the Senate to function as a court in jurisdiction or territory disputes between States, the final Constitution gives the Senate no jurisdiction here, but assigns it to the Judiciary.
Regarding the executive, the draft specifies his title to be "His Excellency", where no title is specified in the final Constitution. The draft specified election by the Legislature, a seven year term, and no eligibility to re-election. The final Constitution specified election by an electoral college, a four year term, and eligibility for re-election. The draft Constitution designates the President "Commander in chief of the Army and Navy." The specified executive powers are similar between the draft Constitution and the final Constitution. There was no office of vice-President in the draft Constitution.
Regarding the judiciary, without reference to the impeachment and removal related provisions the specification of this branch is broadly similar between the draft and the final Constitution.
We now focus on a comparison of the draft Constitution and the final Constitution regarding impeachment and removal.
The wording of both documents is identical in designating that the House "...shall have the sole Power of Impeachment." Nothing else is said in either document with specific regard to the power of the House of Representatives to impeach. Regarding removal of the President only, the draft Constitution specifies in Article X: "He shall be removed from his office on impeachment by the House of Representatives, and conviction in the supreme Court, of treason, bribery, or corruption. In case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed." Notice that the convicting body is specified, it is the supreme Court.
Article XI of the draft concerns the Judicial power. In Section 3, Jurisdiction is specified, and includes "the trial of impeachments of officers of the United States...". This section also specifies "In cases of impeachment,... this jurisdiction shall be original." Section 4 specifies: "the trial of all criminal offenses (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by Jury." Notice a crucial point here: in the draft, two separate kinds of trials are specified, an impeachment trial and a criminal trial. The judiciary is given jurisdiction over both kinds of trials. Section 5 specifies: "Judgment in cases of Impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit, under the United States. But the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law." In the final Constitution, this section was moved to Article One, concerning the Legislative, and more specifically the Senate.
In the last chapter the Article Three Judicial section concerning Treason was examined closely. In the draft, there is a corresponding section regarding Treason. We face a crucial question: why is this August 6th draft language in Article VII regarding the legislature, not in Article XI regarding the judiciary? This draft Article VII Section 2 states: "Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood, nor forfeiture, except during the life of the person attainted." Much of this language is similar to the Article Three language of the final Constitution. The reason this language is in a Legislative article appears to be that the August 6th draft Constitution language was a provision for an American equivalent to the English Bill of Attainder for the specialized case of Treason. Recall that in Chapter Two we saw a Bill of Attainder was both a legislative and a judicial act rolled into one. In a Bill of Attainder, the legislature 1) defines a crime, 2) convicts a person of the crime, and 3) sentences the person to death. Based on the provisions of the draft Constitution, if there are two witnesses to treason, the Legislature alone can evidently pass a Bill of Attainder — something that is not prohibited in the August 6th draft Constitution, although it is prohibited in the final Constitution.
Convention debate on the draft Constitution of August 6th, 1787
Debate on the draft Constitution commenced August 7th, and continued until September 8th, when a committee of five was formed to prepare a second draft that would be almost word for word our final, unamended Constitution. Regarding the September 8th committee Madison records: "A Committee was then appointed by Ballot to revise the stile of and arrange the articles which had been agreed to by the House. The committee consisted of Mr. Johnson, Mr. Hamilton, Mr. Gov. Morris, Mr. Madison, and Mr. King." Note that Madison was on this crucial committee. Debate continued on Monday September 10th, but on Tuesday September 11th the Convention was adjourned, waiting for the committee report. On Wednesday, September 12th a printed copy of the final draft was distributed to the Convention. This final draft was debated up to September 17th, when the final unamended Constitution was signed and recommended to the Congress for ratification by state conventions. The Convention’s proceedings from the September 8th final committee appointment will be considered in the next section. Our concern now is with the debate and changes agreed to by the Convention from the August 6th draft to the September 10th debate.
On August 9th the Convention agreed without discussion or dissent that the House of Representatives would have "the sole power of impeachment." [34]
On August 20th the Convention considered the Article VII section 2 provisions concerning Treason. "Mr. Madison, thought the definition too narrow. It did not appear to go as far as the Stat. of Edward III. He did not see why more latitude might not be left to the Legislature." [35] "Mr. Mason was for pursuing the Statute of Edward III." [36] Recall, this is the fourteenth century English Statute Professor Berger examined at length. The Statute gave Parliament the power to review any case of Treason, try it directly, and expand the definition of Treason beyond examples enumerated in the Statute, if Parliament thought this was necessary. Both the debate of August 20th, and the placement of treason provisions in Article VII concerning the legislature, strongly suggest that the Convention was thinking in terms of judicial or quasi-judicial Treason trials in the legislative branch, similar to what Parliament did. [37]
On August 22nd the following debate occurred: [38]
"Mr. Gerry & Mr. McHenry moved to insert" a new provision, "The Legislature shall pass no bill of attainder nor any ex post facto law."
"Mr. Gerry urged the necessity of this prohibition, which he said was greater in the National than the State Legislatures, because the number of members in the former being fewer were on that account the more to be feared."
"Mr. Gov. Morris thought the precaution as to ex post facto laws unnecessary; but essential as to bills of attainder."
"Mr. Elseworth contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves. It can not then be necessary to prohibit them."
"Mr. Wilson was against inserting any thing in the Constitution as to ex post facto laws. It will bring reflexions on the Constitution - and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so." [39]
The provision banning the bill of attainder was agreed to unanimously. The provision banning ex post facto laws passed by 7 states ay, 3 states no, 1 state divided. Mr. Wilson’s comment is a strong showing that when the Convention used terms related to Legislative exercise of judicial power, and legal terms having specific meaning in English and Parliamentary procedures, they knew what they were doing.
On August 24th efforts to provide for electing the President by the people were again defeated, 2 states ay, 9 states no. [40] This was revisited September 4-7.
On August 27th the Convention postponed consideration of temporary removal of the executive for disability: "Mr. Dickinson 2nd the postponement, remarking that it was too vague. What is the extent of the term ‘disability’ & who is to be the judge of it?" [41] The important point here is that the Convention’s decision to postpone this question indicates they recognized that provisions must be made about the case of temporary removal for inability, and that these questions would have to be resolved. A postponement allowed time for informal discussion about this question when the Convention was not in session.
On the same day, the Convention also agreed by 6 states ay, 2 states no, that the judiciary’s jurisdiction "ought to extend to equity as well as law." [42] As we have seen in Chapter Two, in England there were two separate court systems, one for common law cases, and one for cases of equity. These two systems had different and sometimes conflicting jurisdiction, and worked in some ways according to different principles. The difference between these two court systems has been characterized along the lines that the common law courts followed the letter of the law, and courts of equity follow the spirit, or the intention of the law. This goes back to the medieval idea that law was discovered, not made. The effect of this briefly considered vote was that the Federal judiciary was set on a course that would in some way combine under one jurisdiction what was in England two separate court systems. The fact that both the draft Constitution and the final Constitution provide for jury trial in criminal cases except in cases of impeachment suggests that the Founders were thinking at least as early as the August 6th draft of a judiciary criminal trial in impeachment cases as having at least elements of a case in equity. The question of combining common law and equity will be considered later in this chapter as part of the broader question of constructing the judiciary branch of the government.
On August 28th State Legislatures were prohibited from passing bills of attainder or retrospective laws, on a vote of 7 states ay, 3 states no. [43]
On September 4th the Committee of eleven reported new draft language for the executive, including a new method of election. Each State would choose a number of electors equal to the number of that State’s Representatives and Senators. Each State’s legislature could decide how these electors were to be chosen. Electors were to meet in their States, each was to vote for two candidates at least one of whom must not be a resident of that State, and the result of each State’s vote was sent to Congress. The electoral votes were counted in Congress, and the person receiving the highest vote, if a majority of all the electors, was elected President. There were additional provisions for the Senate to choose the President in the event of a tie, or if no one received a majority. The term of office was set at four years, and the President was eligible to re-election. Regarding impeachment and removal, the new language introduced September 4th states: "He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed." [44] The Committee of Eleven also presented as an addition to an Article concerning the Senate: "‘The Senate of the US shall have the power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.’" [45]
Much of the debate was over various ways in which these new provisions could be or might be manipulated so that larger States could gain an advantage, or so that the Senate could gain effective control of selecting the President. One resulting modification was that if the electors failed to elect a President, the President would be elected by the House of Representatives instead of the Senate, but with each State’s house delegation having only one vote. After the issue of election was resolved, debate focused primarily on the President sharing the power of appointing executive officers, and of making treaties. It was agreed the advice and consent of the Senate would be required for both, by majority for appointment and by 2/3 for treaties.
On September 7th Mr. Randolph introduced language to insert in the Article on the executive:
"The Legislature may declare by law what officer of the U.S. shall act as President in case of the death, resignation, or disability of the President and Vice-President; and such officer shall act accordingly until the time of electing a President shall arrive." [46] Mr. Madison’s substitution of "until such disability be removed, or a President shall be elected" was agreed to. [47] One specific effect of this was to resolve the procedural question regarding disability that had been postponed August 27th when Mr. Dickenson raised the issue and stated his concerns. Regarding disability, since Congress could by law declare who should act as President in case of the inability of both the President and vice-President to serve, for whatever reason, and since such a person was to act "until such disability be removed," such legislative authority must include the power to specify how and by whom disability of a President or vice-President is determined to exist, and when disability is determined to no longer exist. It is important to note that neither this language introduced by Mr. Randolph, nor the impeachment and removal language introduced September 4th, mention any case of removal as such, that was to be dealt with outside the context of removal by Senate impeachment conviction. However, the final Constitutional language provides "the Congress may by Law provide for the Case of Removal,..." The significance of this change will be revisited.
On September 8th the impeachment and removal language of September 4th was taken up.
"Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He moved to add after ‘bribery’ ‘or mal-administration.’ Mr. Gerry seconded him." [48]
"Mr. Madison So vague a term will be equivalent to a tenure during pleasure of the Senate."
"Mr. Gov Morris, it will not be put in force & can do no harm. An election of every four years will prevent maladministration."
"Col Mason withdrew ‘maladministration’ & substitues ‘other high crimes & misdemesnors against the State."
This was approved by 8 states ay, 3 states no.
"Mr. Madison objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemesnor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which they should form a part."
"Mr. Gov Morris thought no other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted. He was against a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out."
"Mr Pinkney disapproved of making the Senate the Court of Impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine against him, and under the influence of heat and faction throw him out of office."
"Mr. Williamson thought there was more danger of too much lenity than too much rigour towards the President, considering the number of cases in which the Senate was associated with the President."
"Mr. Sherman regarded the Supreme Court as improper to try the President, because the Judges would be appointed by him."
"On motion by Mr. Madison to strike out the words - ‘by the Senate’ after the word ‘conviction’". [49] This motion failed by 2 states ay, 8 states no.
Col. Mason’s amendment, just passed, was modified to say "high crimes & misdemesnors against the United States", instead of "against the State". [50]
A short time later the impeachment language was expanded to include "The vice-President and other Civil officers." [51]
Towards the end of the September 8th session, the committee of five, including Mr. Madison, was designated to prepare what everyone realized would be the final draft of the Constitution. [52] Debate continued on Monday September 10th, primarily on the question of provisions for amending the new Constitution, and what procedure would be appropriate for ratification of the new Constitution by the States. Mr. Randolph made a major speech toward the end of the September 10th session. Randolph proposed a resolution providing for submitting the new Constitution for ratification at state Conventions but open to amendment, with a second Constitutional Convention to render a final document. His first stated objection was making the Senate a court of impeachment for trying the President. Randolph’s concern was that the plan would end in tyranny. [53] Dr. Franklin seconded the resolution, but it appears this may have been to mollify Mr. Randolph. "Col. Mason urged & obtained that the motion should lie on the table for a day or two to see what steps might be taken with regard to the parts of the system objected to by Mr. Randolph." [54]
The Convention then adjourned, reconvened September 11th and immediately adjourned because the draft was not complete, and reconvened September 12th with a printed final draft of the Constitution ready to be distributed. [55]
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