Chapter Four -- Part D Impeachment and Removal from Office Debates at the Constitutional Convention |
The Committee on Stile and arrangement of Articles: the final draft of the Constitution
Major William Pierce of Georgia, a delegate from May 31st but apparently no longer in attendance by the September 17th signing, wrote sketches of the delegates, called "Characters in the Convention of the States Held at Philadelphia, May 1787". He described 52 of the delegates, not including himself. Major Pierce identified 23 either as Lawyers or as having at least a good knowledge of law, and he identified 3 more of the delegates as Judges without saying they were lawyers. [56] His description of the five members of the Committee on Stile is included in Appendix A. Briefly, all were approximately between 30 and 40 years old except Dr. Johnson who was about 60. All had legal training, and all were regarded as scholars. Major Pierce had a high regard for the intellect of all five. Of the Convention itself, Major Pierce described it as "The wisest Council in the World." [57]
As noted, this crucial committee of five people was selected on September 8th, and returned September 12 with a completed final draft. The Committee on Stile has sometimes been referred to as the "committee on style", with the idea that a modern spelling should be given to the word stile. It’s easy to think of a "committee on style" as a kind of Constitutional Boutique committee, assigned to swirl the language into beautiful calligraphy, to render elegant and flowing phrases, but having nothing to do with the substance of what was being said. It wasn’t that at all — the word substitution of style for stile is very misleading. A stile is actually something like a small step ladder, that is used to allow a person to climb over a fence. More generally, a stile is something used to overcome or surmount an obstacle. It might be more accurate to describe the Committee formed September 8th as something like: "the Committee to overcome remaining obstacles, and to arrange the provisions of the Constitution into an appropriate structure of Articles." It appears to me that the differences between the amended language of the August 6th draft as it stood September 8th and September 9th, and the final draft Constitution that was presented September 12th, are in some instances both substantive and purposeful. My plan in this section is to first try to lay out what the obstacles and arrangement issues were, and then to attempt to infer what the Committee on Stile was trying to accomplish in the changes and rearrangements that were made. Other than structural issues relating to the subject and organization of Articles, our consideration is limited to issues of impeachment, removal and disability.
Regarding arrangement and structure, the August 6th draft was organized into twenty three Articles. Article Three through Article Eleven were the major articles, and were grouped as Legislative, Executive and Judicial, followed by a number of shorter Articles on a variety of subjects and issues. The Committee on Stile organized the final Constitution into a Preamble, Articles One through Article Three concerning the Legislative, Executive and Judiciary respectively, Article Four concerning relations between and among the Federal government and the State governments, Article Five concerning provisions for amending the Constitution, Article Six concerning what could be called miscellaneous provisions, and Article Seven specifying what was required for the Constitution to become effective, and containing the terms of approval and signing by the Convention. This organization of the final unamended Constitution reinforces the idea of the Federal government having a structure of three independent branches.
We now turn to the obstacles the Committee on Stile and the Convention faced. We must first keep in mind that by proposing to replace the Articles of Confederation, there was doubt expressed at the Convention that it may be going beyond what it was authorized to do. We must also keep in mind that of the three branches of the Federal government specified in the Constitution, two of these branches were entirely new at the national level. Under the Articles of Confederation, there was only a one house Congress, with no executive branch at all, and no judiciary branch at all. The executive branch had assumed its final form in only the last few days of the Convention — and the form agreed to had not had the benefit of weeks of individual and informal deliberation outside the sessions. The judiciary branch presented many great challenges. First, as noted, it was entirely new at the Federal level. At the moment the Constitution became effective, it would be not only the highest law of the land, it would be the only written law of the Federal government. No Federal statutes would be in effect. The relevance of English common law as precedent for Federal judiciary proceedings was entirely an open question. The separate applicability as precedent of common law decisions in Colonial America and in the individual States under the Articles of Confederation was also an open question. The power of the supreme Court to review acts of Congress and actions of the Executive on Constitutional grounds was unresolved. Article Three also specified "The judicial Power shall extend to all Cases, in Law and Equity..." As we have seen already, these cases were handled in England by two entirely separate court systems. How was one Federal legal system in the United States to combine cases in Law and Equity?
As the Convention moved towards a final Constitution, the scope of these challenges, and the work yet to be done regarding the Judiciary, must have become more and more evident to everyone. Of the three branches of the Federal government formed by the Constitution, the Judiciary branch must be regarded as almost an embryonic branch at the time the Constitution became effective. Chief Justice Rhenquist, in Grand Inquests, his book on impeachment, writes of the supreme Court as of 1796 (almost ten years after the Convention): "At this time, and for many years thereafter, the justices of the Supreme Court of the United States performed two separate roles. For a small part of the year they were appellate judges sitting together in Washington D.C., as the Supreme Court of the United States. But for the rest of the year they were circuit judges assigned to hold court and hear cases in a particular geographic part of the nation." [58] Rhenquist elaborates later in his book: "...the justices of the Supreme Court had complained bitterly about the onerous circuit-riding duties to which they devoted most of the year. They were required to travel over bad roads by primitive conveyance from the seat of one court to another within their circuit." [59] Two of the first Chief Justices of the Supreme Court, John Jay and Oliver Ellsworth, resigned — Jay to serve as an envoy to England, Ellsworth to serve on a diplomatic mission to France. [60] John Marshall, whose extensive judicial career began as the eldest of fifteen children, served as Chief Justice from 1801 to 1835. One of Marshall’s most important innovations was the writing of a single majority opinion for Supreme Court decisions. Before Marshall, "...it had been the custom of the supreme court, as it was in England, that each justice deliver an opinion in each significant case. This method may be effective when a court is dealing with an organized and existing body of law. With a new court and a largely unexplored body of law, it created an impression of tentativeness... [W]hen the opinions were cast in the mold of Marshall’s clear and compelling statement, growth of the court’s authority came as a result..." [61]
While obviously aware of the obstacles and challenges, the Committee was also thinking in terms of a Federal government and a Constitution that was to last for generations if not centuries to come. They almost certainly anticipated the Federal government would in future years likely function as the central government of an even larger country than the already large area of the thirteen original States.
We have also already seen that Madison in particular preferred the idea of a venue for consideration of impeachment issues that was judicial rather than political in nature. All five of the Committee on Stile were trained lawyers, and they must certainly have valued the orientation toward impartiality and judicial fairness, as opposed to political expediency, that comes with judicial training.
Finally, the Committee on Stile was certainly well aware of both the legal meaning and the historical foundation of the legal terms that had been set in place in passages of the modified August 6th draft regarding impeachment, removal and inability. We have already reviewed these issues, in particular the ways in which the August 6th draft language regarding Treason resembles an English Bill of Attainder. As already noted, the Convention voted specifically to ban Congress from passing any Bill of Attainder as such.
Regarding the Committee’s rendering of the Constitution’s passages on impeachment, removal and inability, I want to consider what appear to be some specific decisions by the Committee on Stile, in the context of the obstacles and challenges we have just reviewed.
The first decision was the transfer of the definition and provisions for Treason from a legislative article in the August 6th draft, to Article Three on the Judiciary in the final Constitution. The language on Treason has already been analyzed in Chapter Three. In short, the Treason provisions seem to have the effect of dividing the power of a Bill of Attainder between two independent Federal branches, the legislative and the judicial. The Committee on Stile may have been seeking to accomplish three things by this. First, by placing trial in the judiciary, the full benefits of due process and consideration by people of judicial temperament were secured. Second, by giving Congress the power to declare the punishment, the pre-eminent branch of the government was able to both lend its full weight to a proceeding that could be against someone as powerful as the President, and to express the political sentiment of the nation as to how severe the punishment should be. Third, by dividing the provisions of a Bill of Attainder between two independent branches, the Committee on Stile ensured that no defense could ever argue that a Treason trial by the Legislature that included a death sentence, or even the possibility of a death sentence, was a Bill of Attainder, and therefore prohibited.
The second decision was regarding the recent assignment to the Senate of the power of impeachment. On September 4th the Committee of Eleven made a further partial report of six clauses, include the extensive modifications of the election of the executive that were the primary focus of the ensuing debate. We earlier noted that one of these modifications, clause three, gave the Senate power to try impeachments. Clause three said:
"The Senate of the U.S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present." [62]
On September 4th, "The (3) clause was postponed in order to decide previously on the mode of electing the President." [63] The Convention’s later discussion on impeachment referred only to the provision in the executive article, and centered around two questions: should the Senate or the Judiciary have the power to try impeachments, and what grounds for impeachment should there be? Based on Madison’s notes, the clause three language regarding the provisions of a Senate trial was never taken up again for debate before the final draft Constitution was presented September 12th.
The final Constitutional language on the Senate’s power of impeachment is shown below:
"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, 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. (Section 2)
Obviously, this specification of the Senate’s power of impeachment is at the least, a significant elaboration of the short section presented to the Convention by the Committee of Eleven on September 4th. Regarding the second paragraph of the above section of the final draft Constitution, beginning "Judgement in Cases of Impeachment...", this language was simply moved word for word, with one punctuation change, from the August 6th draft language concerning the Judiciary’s power of impeachment, to the Article One final draft section on the Senate’s power of impeachment. Recall that in the August 6th draft, there were provisions for two separate kinds of Judicial trials relating to impeachment. According to the August 6th draft, the judiciary was given jurisdiction over both of these kinds of trials. One kind of trial was an impeachment trial, where the supreme Court was given original jurisdiction, and where judgment was limited to removal and disqualification. The second kind of trial was a trial for criminal offenses, which was to be by Jury except in cases of impeachments. [64] In moving the "Judgement in Cases of Impeachment..." paragraph, the Committee carried out the Convention’s decision to give the Senate the power to try impeachments, by placing in Article One Legislative of the final draft, the Convention’s impeachment provisions according to language that was both specifically applicable and that had already been agreed to.
Regarding the first paragraph, the Committee modified the Clause three phrase "The Senate of the U.S. shall have power to try all impeachments", to now read "The Senate shall have the sole Power to try all Impeachments." The addition of the word "sole" should not be interpreted to mean that the Judiciary has no power to try a Criminal Case of Impeachment. Rather, this is to make clear that of two separate kinds of trials, a decriminalized impeachment trial, and a Criminal trial of a Case of Impeachment, the Senate has the sole power to conduct one of these kinds of trials. The word "sole" makes it clear that only the Senate can undertake a decriminalized impeachment trial per se, and that the Senate has the power to conduct such a trial for any and all Articles of Impeachment passed by the House of Representatives.
One remaining brief section of the final Constitution’s provisions regarding the Senate’s power of impeachment appears to be entirely new language — not derived directly from any resolution or draft language agreed to by the Convention. This is the section: "When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside." It appears here that the intention of the Committee on Stile was to make it clear within the Constitution, that while a Senate impeachment trial is decriminalized, it still retains the character of a judicial trial. In effect, these provisions are to attempt to ensure that the Senators understand their task is to "do impartial justice", not to follow what they might regard as expedient based on a political or partisan advantage. The provision that the Chief Justice preside when the President is tried is undoubtedly a further attempt to ensure that the conducting of an impeachment trial will be impartial, and judicial in character.
The language presented to the Convention September 4th regarding the executive included the impeachment section that is shown here as modified by Col. Mason’s September 8th motions: "He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery, or other high crimes and misdemesnors against the United States, 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." [65,66] The Convention agreed to add to "the clause on the subject of impeachment" [67] these words: "the vice-President and other Civil officers of the U.S. shall be removed from office on impeachment and conviction as aforesaid." [68] On September 7th the Convention also agreed to this resolution by Mr. Randolph, as amended by Mr. Madison: "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 such disability be removed, or a President shall be elected." [69]
This language was modified and consolidated into two sections of the final Constitution, both in Article Two on the Executive. From Section 1: "...the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected." From 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."
There are three crucial points to consider here. The first is subtle but important. The final Constitution specifies "...the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability." In other words, Congress can pass a law stating for each of these situations, exactly what will happen. For example, in a Case of Inability, Congress can determine by Law who decides when the President is disabled, how this is decided, and how it is determined that the disability no longer exists. Obviously, Congress must be reasonable about this — the President can veto an unreasonable bill, the supreme Court can review it, and the people can throw out Congress. Amendment XXV supersedes this provision for disability.
The second point is specific to removal. Regarding the final language "...the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability,..." notice there is no reference to how the President was removed. In language approved by the Convention, the section on impeachment includes the phrase: "in case of his removal as aforesaid, death,...", where "aforesaid" refers explicitly to impeachment and Senate conviction. We can see from this that in the final Constitution the Congress is given legislative power regarding the Case of Removal of a President, and such a Case of Removal is not limited to removal by House impeachment and Senate conviction. My conclusion here is simply this: that the Committee specified in the Constitution that Congress may provide by law how and when the President is to be removed, subject to all the other language in the Constitution that bears on removal, and again subject to Presidential veto and supreme Court review. In this passage, the Committee on Stile gave Congress power and authority to make clear and specific, by law, the process of removal from office of a President impeached by the House and convicted in a Judiciary criminal trial commenced on the House’s Articles of Impeachment.
We saw earlier that regarding the August 6th draft phrase "...on impeachment by the House of Representatives, and conviction by the Senate,...", Madison’s September 8th motion to delete the words "by the Senate" failed. However, the phrase was deleted when the final draft Constitution was presented to the Convention September 12th. With the background information now presented, we can see more fully the thinking and consequences related to the Committee’s decision to delete the words "by the Senate." We have already seen the history of Mr. Madison’s efforts to keep the trial of impeachments in the Judiciary. It now seems evident that the delegates at the Convention thought the Judiciary would be, at least initially, the weakest of the three branches. We have seen the reasons for thinking this, and Chief Justice Rhenquist’s account of the slow start of the supreme Court. At the same time, it is reasonable to assume that both the Convention and the Committee on Stile believed if their entire effort was successful, the country, the Federal government, and the Judiciary would grow and mature. Chief Justice Rhenquist writes: "The framers were sufficiently practical to know that no charter of government could possibly anticipate every future contingency, and they therefore left considerable room for ‘play in the joints.’ Nor did they try to foresee exactly how each of the many powers and checks and balances they conferred and established would work out in particular situations. This was of necessity left to future generations." [70]
If the Committee was thinking along these lines, then it appears their rendering and organization of the impeachment and removal language was along two lines. First, in the immediate case, the Senate was anticipated to be from the outset a body with sufficient stature and credibility to undertake to try anyone, including the President. By providing power for the Senate to hold a decriminalized impeachment trial for any and all House impeachments, regardless of their basis, with the high hurdle of a 2/3 vote required to remove, the Committee provided a kind of Constitutional safety valve. This was a way to remove anyone, at any time, for any reason, if removal was essential to safeguard the Republic.
However, the Committee and the Convention also agreed on language and Constitutional provisions, constructed on widely understood legal terms, that allow for two other ways of removal to proceed. In the case of an impeachment for a criminal violation of a Federal statute, a House impeachment could serve as a Presentment for a Judiciary criminal trial, where questions of equity could be considered, and with removal from office automatic on conviction. In addition, it appears the Judiciary can try a case of Treason directly, with no participation at all by Congress, and if a conviction results, Congress has the Constitutional power to set the punishment, including removal from office, with no recourse to Impeachment.
It seems reasonable to assume that the Committee on Stile and the Convention thought that at least for the first several decades, the Senate would probably be a suitable body for resolving all removal issues by the impeachment route. However, it also seems clear that they provided for a future requirement to develop two alternative Constitutional methods of removing civil officers, including the President. They gave the Congress the power to legislate how this process was to work. Today, it is up to us to use wisely the Constitutional provisions made by our Forefathers over two hundred years ago, to do what is right for the United States of America now, and for future generations.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.