The Constitutional Convention of 1787 and Impeachment

by Clifford F. Thies

In 1787, delegates from the states convened in Philadelphia, Pennsylvania, to address shortcomings in the arrangement of government under the Articles of Confederation. They proposed a new arrangement of government; namely, the U.S. Constitution. The Constitution included provisions for the removal of the President, yet impeachment was not even mentioned in the first draft. The provisions regarding impeachment evolved, one at a time, over the course of the convention. The debate over these provisions illustrates how well the founders understood the nature of our democratic-republican form of government. The debate also clearly speaks to the consideration of impeachment today.

The best recollection of the Constitutional Convention are the notes of James Madison. (However, in some instances, including one to be mentioned below, other sources controvert his notes.) The reason we rely on his notes is that the minutes of the convention were kept secret and then destroyed, as it was thought this would better allow the delegates to develop the proposed new arrangement of government.

Soon after the assembling of the convention, a first draft was presented. This draft was brief, and in particular made no mention of removal of the President. This draft was more of a guide than an attempt at a complete document. The first mention of impeachment occurred three days later, on June 2nd, when John Dickenson of Massachusetts moved to make the President removable by the Congress on request of a majority of the state legislatures.

George Mason of Virginia, the Jfather of our precious Bill of Rights, argued that impeachment *is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen.* Notice that Mason did not hesitate to say that impeachment could be used to oveJrturn an election in the case where a mistake was made by the electorate. Hugh Williamson of North Carolina moved to add the words upon *conviction of mal-practice or neglect of duty,* which motion was agreed to. This amendment clarified that impeachment was not designed to correct a mistake by the electorate, but to discipline the President for his conduct while in office.

Notice that, from the initial consideration of impeachment, three basic components were present: First, a referral, in this case by a majority of the state legislatures. Second, a trial, in this case by the Congress. And, third, the grounds for impeachment and removal, in this case *mal-practice or neglect of duty.*

On June 15th, Dickenson presented what is known as the New Jersey plan. According to Madison, this plan provided that the President be removable by Congress on application by a majority of the Governors. This detail is considered to a mistake, as other recollections indicate this method of removal was made as part of the so-called Virginia plan. In any case, it is obvious the delegates were grappling with a method for removal that balanced concerns for separation of power, due process and efficiency.

On June 18th, Alexander Hamilton of New York presented his plan, which provided for impeachment *for mal- and corrupt conduct,* to be tried in a court consisting of the chief judges of each of the superior courts of the states. Thusfar, three methods ha d been presented, each being a two-step process, one involving first the state legislatures and then the Congress, another involving first the Governors and then the Congress, and the third involving first the Congress and then a council of state judges. All three of these methods were eventually discarded as it was thought that involving the states in the removal of the President violated the separation of power between the national and the state governments.

On July 20th, Charles Pickney of South Carolina and Govurneur Morris of Pennsylvania moved to strike the provision for impeachment. Against this, Mason argued strenuously. *Shall any man be above Justice?* Especially, he continued, one *who can commit the most extensive injustice?* Benjamin Franklin of Pennsylvania joined with Mason, first asking *What was the practice before impeachment?* And, then, answering *Why recourse was had to assassination.* Impeachment, Franklin argued, not only allowed t he peaceful removal of a person from office who should be removed, it allowed an innocent but wrongfully accused person to defend himself.

James Madison of Virginia added that a corrupt President was different from a corrupt member of the legislature, since a corrupt member of the legislature was but one of many members, while a President exercised enormous discretion, and was in no way oth er than impeachment answerable to others. At this point, these three great founders--Mason, Madison and Franklin--began to speak of treason and bribery as had been committed by certain kings and princes in English history, so as to vividly illustrate the potential abuse of the office of President. Thereupon, the delegates voted to retain a provision for impeachment by a vote of eight states to two.

On August 6th, a draft of the Constitution was proposed that provided that the President was subject impeachment by the House of Representatives, and trial by the Supreme Court, for the crimes of treason, bribery or corruption. The was changed, in the draft of September 4th, to trial by the Senate instead of by the Supreme Court, with removal requiring a two-thirds majority vote.

On September 8th, Mason moved to add *maladministration* to the list of crimes for which the President could be impeached, arguing *Why is the provision restrained to treason and bribery only? Treason as defined in the Constitution will not reach many great and dangerous offenses.* He later changed the proposed wording to *other high crimes and misdemeanors.* Thus, the reasons for which the President could be removed became *treason, bribery, or other high crimes and misdemeanors.*

The first two crimes--treason and bribery--represented the very worst possible offenses, and the second two crimes--other high crimes and misdemeanors--covered lesser but still important offenses, but the second two crimes were left intentionally vague. Hamilton argued that the vagueness was constructive, in that it would motivate future Presidents to conduct themselves well while in office so as not to risk impeachment.

A few other items were added concerning impeachment. For example, on September 12th, the delegates provided that in the event of a trial of the President by the Senate, the Chief Justice of the Supreme Court, as opposed to the Vice President, was to preside. However, the basic provisions were each hammered-out following clear and persuasive reasoning. While some people are saying today that impeachment threatens the constitutional order of the country, the truth is that it affirms the wisdom of the constitutional order provided to us by the founders.

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CLIFFORD F. THIES is chairman of the Republican Liberty Caucus, a nationwide organization for libertarians within the Republican Party. He is also a professor of economics and finance at Shenandoah University, and a resident of Winchester, Virginia.