Impeachment

Chapter 1

The Constitution

Jeffrey A. Engel

Their government was failing by 1787, which hadn’t taken long. A mere decade after declaring independence, and only four years after winning a bloody Revolution fought to prove that point, Americans found the Articles of Confederation that bound the states together wholly inadequate. Designed during the war by representatives of thirteen independent states who longed to stay that way as much as possible, it denied federal officials the ability to effectively regulate the new nation’s trade, orchestrate a unified foreign policy, or even maintain basic civil order. State power ruled instead of federal control, and it proved incapable of coping with a steady barrage of economic blows, diplomatic insults, and widespread popular unrest.

“Our situation is becoming every day more and more critical,” James Madison lamented in early 1787. Frustrated by representing Virginia in a federal congress powerless to change the nation’s course, he found “thoughtful observers unanimously agree that the existing confederacy is tottering to its foundation.” Calls for disunion multiplied, with “many individuals of weight” increasingly “leaning towards monarchy” for salvation.

Monarchy was what the thirteen colonies had rebelled against in the first place only a decade before—a tyrannical monarchy that had threatened their liberties, but at least had been able to provide order, which seemed increasingly appealing as an alternative to their current woes. Madison worried, as their problems grew—with seemingly little their government could do in response—that Americans were “losing all confidence in our political system” which “neither has nor deserves advocates.”1

They could, at least, attempt something better, which is why delegates gathered in Philadelphia throughout the summer of 1787 in hope of repairing their fatally flawed constitution. If they failed to find a better way, or even a replacement powerful enough to tackle the nation’s problems yet constrained enough to ensure liberty’s survival, the United States would likely become little more than a footnote in history.

Therein lay the real problem, and the reason the Articles had constrained federal power in the first place. Power was dangerous. Americans in this era widely agreed it poisoned any who wielded it with an insatiable desire for more, its steady accumulation engendering corruption and injustice. Freed from Britain’s powerful grip, they’d tried doing without a strong federal government of their own, and in particular without a national executive empowered to keep the peace and enforce the nation’s laws, but soon found they couldn’t live without either. What form of government could therefore be trusted with the power it required, without simultaneously employing that power to undermine liberty? More specifically, in whose hands could such power possibly be trusted?

The question defined their entire epoch. “Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men without a consequent loss of liberty,” Virginia’s famed orator Patrick Henry subsequently challenged when the Constitutional Convention delegates were done forging a new government. “I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.” Their proposed salvation might ultimately prove their undoing, he charged. The new constitution forged in Philadelphia “winked towards monarchy,” with a presidency and legislature empowered not so much to ensure popular freedom and prosperity as to guarantee their own.2

Henry was right, at least about one thing: It had never worked before. The new American republic lived in a world of monarchies, and no republic in history had ever been attempted over such a wide expanse and vast citizenry. Neither had any managed to retain the liberties proclaimed at its birth, as the virtuous rulers chosen to safeguard their people’s security instead came to value their pocketbooks and powers more. Rome had fallen in this way. So, too, Athens and every other example from the classical age that the delegates to the 1787 convention studied, finding to their dismay that even the most virtuous republic proved vulnerable to this same unavoidable flaw.

“There is scarce a king in a hundred who would not, if he could, follow the example of Pharaoh,” Pennsylvania’s scientist and statesman Benjamin Franklin reminded his fellow delegates. “Get first all the people’s money, then all their lands, and then make them and their children servants forever.” This was simply the natural order of things. “It will be said, that we don’t propose to establish Kings” in our new government, he continued. Yet “I am apprehensive,” indeed “perhaps too apprehensive, that the Government of the States, may in future times, end in a Monarchy.”3 Franklin’s was no isolated fear, which extended well beyond a simplistic if ominous fear of one day living under a new American king. Leaders charged with protecting liberty, the founders believed, might one day prove its demise.

That last sentence should hurt your eyes, or at least make them roll. Sweeping assertions about the unified beliefs of the nation’s “framers” or “founders”—or, worse yet, “founding fathers”—are almost invariably misleading. Most fail to appreciate the generation’s diversity and divisiveness out of ignorance. Others intentionally obscure those qualities to bolster some faulty contemporary argument. Reality was more complex. The ranks of those who contributed to the American Revolution and the independent country that followed included merchants and landowners, politicians and preachers, slave owners and those appalled by the practice, each part of a national palette so vast that few residents could reliably claim to have visited its wide expanse or even met someone from each of its thirteen states.

The Revolution’s length further complicates broad assessments of its participants. Nearly a decade separated Britain’s despised 1765 Stamp Act and the new taxes it imposed on its North American colonies from the 1773 Boston Tea Party those policies ultimately inspired. More than a decade, in turn, passed between the latter and the nation’s first presidential inauguration. Indeed, the entire period’s two signature events—literally so, as each produced documents whose endorsements were, in the moment, as important as their text—occurred eleven years apart, and the men who debated the radical and revolutionary Declaration of Independence in 1776 were far different in temperament and experience than those who composed the much more conservative 1787 Constitution. Only six signed both, a mere 5 percent of total participants, though they, too, had been changed by the intervening years of bloodshed, anxiety, loss, and triumph.

The collective variety and extended chronology of those who revolted and those who constructed makes for colorful history, but it muddies the average citizen’s ability to discern the era’s applicability for their own lives. Specifically, the founding generation’s ideological and political diversity, coupled with the self-evident differences between the eighteenth and the twenty-first centuries, makes any contemporary understanding of the Constitution’s binding language difficult at best. This is more than mere inconvenience or academic concern. The Declaration is inspiring, but the Constitution’s specific wording—the result both of political compromise over issues specific to the era, as well as severe editing—continues to guide our politics today.

We may choose, as a matter of legal philosophy or political practicality, to employ the text for broad guidance as we rethink and relitigate new and old problems alike. That is the unassailable right of every ensuing generation, who in the words of retired Supreme Court justice Anthony Kennedy can “invoke its principles in their own search for greater freedom.” Others may care only for its words as originally intended. “The Constitution, as you know, contains a number of broad provisions, which are necessarily vague in their application,” Kennedy’s court colleague Antonin Scalia countered. “Originalism gives to those terms the meaning they were understood to have when the people adopted them.4

No matter one’s preferred methodology for interpreting the Constitution, whether celebrated as a living document or venerated as what Scalia called “the good old dead Constitution,” we should at least offer its authors the respect of asking why they wrote and thought what they did. This is especially important when putting their eighteenth-century words and thinking into contemporary effect, pondering in the context of this book meaningful yet potentially debatable terms such as “treason, bribery, or high crimes and misdemeanors.” To understand the history of presidential impeachments, we must start with both the office and that process as its designers initially conceived them.5

The presidency did not arise by accident. Delegates to the federal convention met for months behind closed doors, shuttered and sealed to immunize their debates from public pressure, hammering out a government with overlapping spheres of power. None might grow too large or powerful, they reasoned, if coequal legislative, judicial, and executive branches were aligned against one another. Lawmakers could see their legislation vetoed by an executive who considered their work unwise, for example; judges could invalidate legislators’ statutes or a president’s actions if counter to the Constitution’s prescripts; and presidents required Congress’s approval before spending a dime or concluding treaties with foreign lands. Because none held unlimited power, the Constitution’s framers reasoned, none would be able to attain it at the expense of the others.

Then they added one more additional restraint on the executive, the branch most like the monarch they’d just rejected but whose stability and authority they nonetheless desired, inserting into their new constitution a means of ejecting any president who threatened to employ the powers at his disposal to harm the general welfare or to profit too greatly at its expense.6 A president could be impeached, though even this was not wholly enough to alleviate their ingrained fear of concentrated executive power. One thing did. Or rather, one man did. Indeed, the entire convention would likely not have succeeded but for him.7

Which leads back to one of those few things this complex generation overwhelmingly agreed upon: George Washington would be first. Consequently the best way to understand what they collectively envisioned a president should be is to consider the degree of duty and sacrifice that made him their unanimous ideal. Conversely, when asking what sort of president might warrant impeachment, a useful first step is to envision one wholly lacking these critical virtues.

The Constitution’s framers never expected subsequent presidents would replicate George Washington precisely. They were not fools, nor deluded into thinking him flawless or beyond reproach. Many in the room had personally seen him stumble, lose his temper, or choose the wrong course. Yet none had ever seen him put his own needs above the nation’s. Consequently, any future chief executive who demonstrated the opposite—placing personal aggrandizement or malfeasance above their sense of duty to the people at large, perhaps even damaging the republic’s future in the process—would be so unlike the president they envisioned as to warrant removal and dishonor. When considering what the Constitution’s authors thought about which acts or defects might warrant a president’s impeachment, therefore, one shorthand explanation can be found in asking what would George Washington not have done?8



The United States were, in truth, more coalition than country by the mid-1780s. Independence had brought peace but neither stability nor prosperity, especially as victory eliminated the one thing that truly bound the thirteen together. Without a common foe, they instead acted more like sovereign countries than as parts of a broader whole, providing ample hope in European capitals that the new American union might yet break apart. Washington feared as much. Long an unwavering advocate of a strong national government after eight years in command of the Continental army, he worried as the war ended in 1783 that Americans were destined in its absence to become little more than “the sport of European politics.”9

Time seemed to prove him right, and with remarkable speed. British forts and colonies lined the borders to the north and northwest as the 1780s progressed, as did potentially hostile and certainly wary Indian nations. Britain’s peerless fleet meanwhile controlled the Atlantic to the east and the Caribbean to the south. Spain dominated the continent’s central arteries, strategically positioned to make good on its repeated threats to curtail American access to the critical Mississippi River, New Orleans, and the markets beyond. Denied easy access to Britain’s markets at war’s end, or confidence in the long-term availability of new customers and goods, all the while rebuilding from the war itself, American per capita production and earnings by mid-decade fell to merely half what they had been before the war, resulting in what some experts consider the nation’s worst economic crisis until the Great Depression a century and a half later.

“Our commerce is almost ruined,” a Massachusetts congressman lamented, and the country’s weak federal government seemed incapable of altering their course. Federal currency was untrusted and frequently unaccepted, its value varying from state to state and questioned abroad, leaving central authorities unable to repay hefty wartime debts. To accomplish anything under the Articles required consent from three-fourths of the state delegations to Congress present for any vote, something impractical in the best of circumstances yet largely impossible, given that spotty attendance typically made even fielding a quorum difficult enough. Recalcitrant (and frequently absent) Rhode Island rejected every effort to retire the federal debt; as the smallest state it was wholly uninterested in sharing the load with its larger brethren. Georgia habitually and politely voted yes, then refused to pay. Others simply declined to voice an opinion.10

This was not unusual. Congressional resolutions were frequently ignored under the Articles. Six requisitions on the states passed Congress between 1781 and 1786. Only a third brought any revenue at all.11 The last netted a mere $663 dollars, less than 2 percent of the total requested.12 “No money is paid into the public treasury,” Madison lamented, and “no respect is paid to the federal authority.” Washington fumed from Mount Vernon at the news, and at those who continued to support a federal government too impotent to warrant any concern over its tyrannical possibilities. “To be fearful of vesting Congress, constituted as that body is, with ample authorities for national purposes,” he lamented to fellow colonial leader John Jay, “appears to me the very climax of popular absurdity and madness.”13

The time had come for their union to either draw closer together or disband. Their postwar regime was “a half-starved, limping government,” Washington lamented as 1786 drew to a close, and if Americans could not conceive of themselves as one people with one set of shared priorities because it was right, they’d have to be forced to cooperate for their own good. “We have probably had too good an opinion of human nature in forming our confederation,” he commiserated once more to Jay. “Experience has taught us, that men will not adopt & carry into execution, measures the best calculated for their own good without the intervention of a coercive power. I do not conceive we can exist long as a nation, without having lodged somewhere a power which will pervade the whole Union.”14

Not everyone approved of this remedy, however. In small and large states alike politicians and editors rehashed and recycled traditional warnings against concentrated power. “In the debilitated condition of the federal government,” a fellow Virginia planter warned Washington that year, “it is unwise to risk the offense of any part of the empire” lest it break away to pursue its own destiny. In every state, Virginia congressman Henry Lee worried, calls for “amplification of the powers of the union has too many enemies” to survive the attempt.15