Friday, May 19, 2017

Impeachment? Did Someone Whisper "Impeachment"?

So many words have been uttered/whispered in the unsettled week just passed. The I-word has been prominent in the musings of the aggrieved: Impeachment. The basic source is Article II, Section 4 of the Constitution of the United States of America. In our history, only two POTUSes have been impeached: Andrew Johnson (1868) and William Clinton (1998) were impeached by the House of Representatives, acting as a grand jury, and both were acquitted by the Senate, acting as a trial jury. A third POTUS, The Trickster (1974) resigned before the process could be implemented. Today — carrying the distaff banner —The Jillster offers a brief explanation of the inclusion of impeachment in the US Constitution. The basis of her explication comes from two unofficial sources: James Madison's Notes of Debates in the Federal Convention of 1787 (published in 1840), supplemented by the notes of Robert Yates (published in 1821). One of the first actions of the Constitutional Convention was to proceed without a record (minutes) of discussions in camera. If this is (fair & balanced) true originalism, so be it.

[x New Yorker]
How Impeachment Ended Up In The Constitution
By The Jillster (Jill Lepore)

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On the morning of Friday, July 20, 1787, delegates to the Constitutional Convention, in Philadelphia, addressed the question of whether or not a President could be impeached while in office. A king might be beheaded, a Prime Minister toppled. What fate could befall a terrible President? Charles Pinckney, of South Carolina, and Gouverneur Morris, of Pennsylvania, moved to strike out a proposed phrase stipulating that the President could be removed “on impeachment and conviction for malpractice or neglect of duty.” Morris thought that if a President committed crimes, he wouldn’t be reëlected, and that would be that, since no other solution accorded with the separation of powers. “Who,” he wondered, “shall impeach?” The irascible George Mason, of Virginia, found this argument absurd. “Shall any man be above justice?” Mason asked. “Above all, shall that man be above it who can commit the most extensive injustice?” It was as good a question then as it is now.

The delegates had been debating the manner of electing a President, wrangling over the weighty matters of the Electoral College and proportionate representation. It was a hot summer. They were tired and ornery, and a good many of them had grown impatient with compromise. “One objection against electors was the danger of their being corrupted by the candidates, and this furnished a peculiar reason in favor of impeachments whilst in office,” Mason pointed out. If the Electoral College were to stand, Mason thought, impeachment ought not be a matter open to compromise: it was an essential remedy. He wanted to know, “Shall the man who has practised [original spelling] corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?”

Benjamin Franklin, the oldest delegate, at eighty-one, ventured his wisdom. He favored impeachment, too, but cited fairness. No man ought to be convicted by hearsay or denied a fair trial. Why not “provide in the Constitution for the regular punishment of the executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused”?

In that case, Morris suggested, the Constitution ought to enumerate a list of impeachable offenses and define them, one by one. Right off the top of his head, James Madison could think of a lot of good reasons to impeach a President. He ticked off this list: “He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” (To peculate is to embezzle.) It’s a very good list. Members of Congress might want to consult it.

Nevertheless, a few delegates pressed on with objections to the idea of impeaching a sitting President. Rufus King, of Massachusetts, along with Pinckney, worried that the independence of the executive branch would be lost if the threat of impeachment were wielded by the legislative branch and held over the President “like a rod.” But King’s fellow Massachusetts delegate, Elbridge Gerry, disagreed, arguing that no decent President had anything to fear from members of Congress who represented the interests of the people: “A good magistrate will not fear them,” Gerry said. “A bad one ought to be kept in fear of them.” He hoped people might remember that as a maxim.

Pinckney and King tried to pass a motion to table the discussion, but that failed, and the matter went to a vote on the question, “Shall the executive be removable on impeachments?” Every state delegation except those of South Carolina and Massachusetts voted “aye.” Even Gouverneur Morris had come around and changed his mind. After all, he said, in this new government, “The people are the king.” But the President is only a man, as true and as honorable as the best of us, or as false and dishonorable as the worst. # # #

[Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University as well as the chair of the History and Literature Program. She also is a staff writer at The New Yorker. Her latest books are The Story of America: Essays on Origins (2012), Book of Ages: The Life and Opinions of Jane Franklin (2013). and The Secret History of Wonder Woman (2014). Lepore earned a BA (English) from Tufts University, an MA (American culture) from the University of Michigan, and a PhD (American studies) from Yale University.]

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