Author’s Note: Selections from all resolutions and working drafts are italicized. Most of what we know about the framers’ discussions comes from James Madison’s Notes of Debates in the Federal Convention of 1787; material from Madison’s notes is identified by quotation marks or indented block quotes. The best print source, annotated by Adrienne Koch and thoroughly indexed, is W.W. Norton’s 1987 edition. Several Internet sites, including ConSource and Avalon, are easily referenced by date. Max Farrand’s Records of the Federal Convention of 1787 includes Madison’s meticulous notes, spotty notes by several other framers, and the official Journal. Organized by date, Farrand’s Records can be found at the Online Library of Liberty.
July 20, 1787, a clear and pleasant Friday afternoon. Delegates to the Federal Convention, known now as the Constitutional Convention, are addressing a clause in the working draft of what will become the Constitution of the United States. The “National Executive,” the draft says, will be “removeable on impeachment and conviction of malpractices or neglect of duty.” Gouverneur Morris of New York and Charles Pinckney of South Carolina “moved to strike out” the provision.[1] Debate is vigorous, and the consequences enormous. At stake is the critical balance of powers among three branches of a new governmental edifice, which could potentially tumble down if that balance is irrevocably disrupted.
The story evolves, as all history does, from backstory. Some seven weeks earlier, during the fifth day of their deliberations, delegates had addressed a resolution in the Virginia Plan, the convention’s opening foray:
Resd. [resolved] that a National Executive be instituted; to be chosen by the National Legislature for a term of ___ years, . . . and to be ineligible a second time; and besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.[2]
A “National Executive”—this was a dramatic departure from the Articles of Confederation, which had vested all executive authority with Congress. When the first speaker, James Wilson of Pennsylvania, moved that this new executive office should “consist of a single person,”absolute silence descended on the body. For the first and only time during that long summer, not one eminent statesman ventured even a passing comment, much less a reasoned position. From James Madison’s Notes of Debates in the Federal Convention of 1787:
A considerable pause ensuing and the Chairman asking if he should put the question, Doctor FRANKLIN observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put.[3]
“A point of great importance”—that was precisely the problem. The new nation had buttressed its very existence upon the cardinal principle that people can and must rule themselves, free and clear of any king or queen. How could it now place one man above all the rest and charge him with executing the myriad affairs of government?
Finally, a few delegates weighed in. John Rutledge of South Carolina “was for vesting the Executive power in a single person, tho’ he was not for giving him the power of war and peace.” Elbridge Gerry of Massachusetts “favored the policy of annexing a Council to the Executive.” Wilson explained that he “preferred a single magistrate, as giving most energy, dispatch and responsibility to the office.” But Edmund Randolph of Virginia “could not see why the great requisites for the Executive department, vigor, dispatch, & responsibility, could not be found in three men as well as in one man.” A single executive, he warned, was “the fetus of monarchy.” Seeking to assuage Randolph and others who took offense at any hint of monarchy, fellow Virginian James Madison suggested: “To prevent a Man from holding an Office longer than he ought, he may for malpractice be impeached and removed.” This intriguing idea elicited no response, although it would be taken up later. Faced with staunch opposition from Randolph, governor of the nation’s largest state, those favoring a single executive decided not to press the issue just yet.[4]
Delegates moved on. How long would the executive(s) serve? Three years and seven years were the only contenders, with seven prevailing. Wilson then proposed that special electors, chosen by the people, would select the executive(s). This was roundly rejected. So, as of June 2, the executive(s) would be chosen by Congress and serve for seven years.
The lengthy term raised red flags. Delegates quickly resolved that the executive(s) could serve only a single term, but this alone did not suffice. “Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as the corruptibility of the man chosen,” George Mason of Virginia proclaimed. (This would hold whether the executive was singular or plural.) Madison added, “It was far from being his wish that every executive Officer should remain in Office without being amenable to some Body for his conduct.” Others agreed. A motion that the executive(s) would be “removable on impeachment & conviction of mal-practice or neglect of duty”passed with no dissent.[5]
That was a game changer. Now that a single executive could be removed, fears of abuse subsided. John Rutledge and Charles Pinckney immediately moved that the executive be “one person.”This motion passed, seven states to three.[6] Without a path for removal, the framers might never have vested all executive power in a single person.
But on July 20, when removal of the executive came up for review, Gouverneur Morris and Pinckney challenged it. From the outset, Morris, Pinckney, and Wilson had pushed for a truly independent executive, one not beholden to the legislature.[7] They had objected all along to Congress choosing the executive, and Morris now argued that Congress should not be empowered to remove him either. Impeachment, he said, would “render the Executive dependent on those who are to impeach.” But what if the chief executive does wrong? Morris’s response was slim: “He can do no criminal act without Coadjutors who may be punished.”[8]
George Mason’s counter argument was more forceful:
No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all, shall that man be above it who can commit the most extensive injustice? When great crimes are committed, he was for punishing the principal as well as the Coadjutors. . . . Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment?[9]
Benjamin Franklin, ever creative, turned the issue on its head. Impeachment was actually “favorable to the Executive,” he determined, giving this rationale:
What was the practice before this, in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in which he was not only deprived of his life but of the opportunity of vindicating his character. It would be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.[10]
Morris began to bend. He now admitted that “corruption & some few other offenses” should be impeachable, although “the cases ought to be enumerated & defined.”[11]
Support for removal powers kept coming. James Madison spoke up:
[It is] indispensable that some provision should be made for defending the Community against the incapacity, negligence, or perfidy of the Chief Magistrate. The limitation of his service was not a sufficient security. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable from that of the Legislature or any other public body. . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the republic.[12]
As did Elbridge Gerry:
A good magistrate will not fear them [impeachments]. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief magistrate could do no wrong.[13]
And Edmund Randolph added:
Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power, particularly in time of war when military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted with tumults & insurrections.[14]
Even Morris’s cohort, James Wilson, “concurred in the necessity of making the Executive impeachable while in office.” But Charles Pinckney, who had had joined Morris in the challenge to impeachment, held firm:
Some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him. He presumed that the powers would be so circumscribed as to render impeachments unnecessary.[15]
While Pinckney’s prediction about “circumscribed” executive powers appears naive, Rufus King of Massachusetts offered a stronger argument against impeachment:
He wished the House to recur to the primitive axiom that the three great departments of Government should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable?[16]
And a more nuanced one:
The Judiciary hold their places not for a limited time, but during good behavior. It is necessary therefore that a forum should be established for trying misbehavior. . . . The Executive was to hold his place for a limited term like members of the Legislature. Like them … he would periodically be tried for his behavior by his electors. . . . Like them therefore, he ought to be subject to no intermediate trial.[17]
King’s argument might have carried more weight if the tenure of the Executive was short, as Morris preferred, but delegates were not inclined to wait six years—the operative term at that moment of the convention—to hold him accountable.
Benjamin Franklin, the venerable sage, closed by referencing civil strife that engulfed the Dutch Republic in the 1780s and was just then reaching its climax. All this might have been eliminated, he argued, had Dutch law provided for an orderly process of impeachment. From Madison’s Notes:
Doctor Franklin mentioned the case of the Duke of Orange during the late war. [The American Revolution, which had spread through Europe by 1780.] An agreement was made between France and Holland [Britain’s adversaries] by which their fleets were to unite at a certain time & place. The Dutch fleet did not appear. Everybody began to wonder about it. At length it was suspected that the Statholder [chief magistrate, the Duke of Orange] was at the bottom of the matter. This suspicion prevailed more & more. Yet as he could not be impeached and no regular examination took place, he remained in office, and strengthening his own party, as the party opposed to him [the so-called Patriot Movement] became formidable, he gave birth to the most violent animosities & contentions. Had he been impeachable, a regular & peaceable enquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public.[18]
Gouverneur Morris heard it all and came around. Again, from Madison’s Notes:
Mr. Govr Morris’s opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. . . . No one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by replacing him. One would think the King of England well secured against bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-minister. The people are the King.[19]
Rarely did a delegate to the Federal Convention, with such candor, admit to changing his mind—and Gouverneur Morris, generally, was as fixed on proving himself right as any of his peers. His change of heart pays tribute to the power of the arguments presented on behalf of impeachment.
The necessity of impeachment would never again be challenged, but it still needed to be fleshed out: Who should impeach, and who should try an impeachment? What should constitute an impeachable offense? What would be the consequences upon conviction?
Six days after the impeachment debate, on July 26, the convention recessed. It appointed a five-member Committee of Detail composed of John Rutledge, Edmund Randolph, James Wilson, Oliver Ellsworth of Connecticutand Nathaniel Gorham of Massachusetts to transform the various resolutions into a comprehensive document. Reporting back on August 6, this committee gave the single executive a name: “President of the United States of America.” It also clarified the process of removal: “He [the President] shall be removed from office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corruption.”[20] That clause did not come up for discussion until August 27, and then but briefly. Only one speaker weighed in: Gouverneur Morris, who believed that the Supreme Court would be an improper “Tribunal” to try an impeachment. Without waiting for a response, he moved to postpone the matter.[21] This maneuver meant that the venue for an impeachment trial would come before the Committee on Remaining Matters, composed of one delegate from each state. Four days later, Morris was appointed to serve on that committee.[22]
This committee, reporting back on September 4, dramatically restructured the Executive Branch. Special electors, not Congress, would choose a President, who would serve for four years and be eligible for reelection. The president, not the Senate, would appoint ambassadors and members of the Supreme Court, although the Senate would have to approve them. Morris had long been pushing for such measures, which made the presidency more robust and independent. Further, the committee changed the venue for an impeachment trial from the Supreme Court to the Senate, with a two-thirds supermajority required for conviction—much as Morris had proposed and managed to get tabled a week earlier.[23]
On September 8, the convention considered the change of venue for impeachments. James Madison and Charles Pinckney argued against trial by the Senate; that would make the President totally dependent on Congress, which Morris himself had been complaining about all along. But Morris had changed his mind: “The supreme Court were too few in number and might be warped or corrupted,” he argued, while “there is no danger that the Senate would say untruly on their oaths that the President was guilty of crimes of facts.”[24] Again, Morris had his way; by a vote of nine states to two, the Senate prevailed. To guard against partisanship, Morris then moved that “no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be under oath.” This too passed, by the same margin.[25]
On that same day, George Mason questioned what could be considered impeachable in the existing draft: “Why is the provision restrained to Treason and bribery only?” There were doubtless “many great and dangerous offences” and other “attempts to subvert the Constitution” that should qualify. But when he moved to add “maladministration” to the list, Madison immediately objected: “So vague a term will be equivalent to a tenure during pleasure of the Senate.”[26]
Mason accepted the critique. In place of “maladministration,” he proposed “other high crimes & misdemeanors against the State”—more expansive than the short list of treason or bribery, but not totally open-ended. This phrase comes from English common law. A “high” offense did not have to be a heinous one, like a murder, but one that violated the trust people had bestowed on an individual in “high” office. It was not a “crime” in the ordinary sense, because common citizens would not be in a position to commit one; it was an offense that stemmed directly from the power of the office. But a “high” crime or misdemeanor did have to be a serious and conscious abuse of that power, not simply a mistake. The word “other” is key: the offense must be on the scale of the specific ones mentioned, treason and bribery. Madison had warned that a president “might pervert his administration into a scheme of peculation or oppression” or “betray his trust to foreign powers.” Morris worried about “seeing the first Magistrate in foreign pay.” These sorts of abuses could be covered under the general heading “high crimes & misdemeanors.” Mason’s amendment passed, eight states to three. Unanimously, the convention then agreed to substitute “United States” for “State”—“to remove ambiguity,” Madison noted. Impeachment was to be a national affair.[27]
The convention then resolved without debate: “The Vice President and other civil Officers of the United States shall be removed from Office on impeachment and conviction as aforesaid.” That would include federal judges, who served “during good behaviour.” The framers granted judges unlimited tenure to insulate them from the political process, but even delegates who had opposed impeachment of the president favored a constitutionally guaranteed method for removal of judges, if necessary.[28]
Also on September 8, the convention appointed a five-member Committee on Style— James Madison, Alexander Hamilton, Rufus King, William Samuel Johnson, and Gouverneur Morris—to combine everything that had been decided into an almost-final draft. On that committee, Morris served as the penman, and he is generally credited with writing the celebrated preamble to the Constitution: “We, the People.” Apparently, he also took the opportunity to make an alteration relevant to impeachment: following “Treason, Bribery, or other high Crimes and Misdemeanors,” he dropped “against the United States.”[29] Legal scholars have argued and still argue over this:
Some say the phrase was redundant. In historical context, the term “high” implied the offense was against the nation, so we should read the final text as if “against the United States” were still there.
Others contend that by deleting the qualifying phrase, Morris was expanding the boundaries for what qualifies as an impeachable offense. On July 20, after he transitioned from an opponent to a proponent of impeachment, he had suggested that “corruption & some other offences . . . ought to be impeachable.” Morris fretted over corruption, and he might have envisioned egregious offenses that were not demonstrably “against the United States.”
Still others argue that Morris was a great fan of a strong executive, and he would not have wanted to facilitate a president’s removal in any way. In this reading, deleting “against the United States” was purely stylistic.[30]
All this is speculative. The text is what it is, make of it what we will: “Treason, Bribery, or other high Crimes and Misdemeanors.”
The framers’ discussions on impeachment reflect a deliberative process; nobody at the outset envisioned the end result. Gouverneur Morris, in particular, evolved from a leading opponent of impeachment to its chief architect. The process bore fruit. On July 20, as he was changing his mind, Morris wisely suggested that the chief executive “should be punished not as a man, but as an officer, and punished only by degradation from his office.”[31] No delegate disagreed, and this limitation on impeachments found its way into the Committee of Detail draft and eventually the Constitution. It was a critical measure. Impeachments would focus on violations of the public trust, with removal from office the sole punishment; by contrast, punishment “as a man” would remain the job of the judicial branch—this might or might not come up later, and it would be handled by the courts. Imagine the turmoil if Congress alone, an avowedly political body, could throw a president in jail. That could undermine people’s faith in Constitutional processes and trigger a cycle of retribution. But impeachment, in its final formulation, was intended to avoid horrific alternatives—tumults, insurrections, or assassinations, as Randolph and Franklin feared. It was to be an orderly, albeit unpleasant, business—that was the hope and expectation, at any rate.
The Committee of Style had the last word on impeachment. Here are the relevant sections of its draft, which are included in the United States Constitution:
ARTICLE II, 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.
FROM ARTICLE I, SECTION 3: 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.
Judgment 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.
[1]Madison, Notes of Debates, July 20.
[2]Madison, Notes of Debates, May 29 and June 1.
[3]Madison, Notes of Debates, June 1.
[4]All quotes are from Madison, Notes of Debates, and William Pierce’s notes in Farrand, Records, June 1.
[5]Madison, Notes of Debates, and Pierce’s notes in Farrand, Records, June 2.
[6]Madison, Notes of Debates, June 2.
[7]For the efforts of Wilson, Pinckney, and Morris to liberate the executive from the legislature, see Ray Raphael, Mr. President: How and Why the Founders Created a Chief Executive (New York: Alfred A. Knopf, 2012), 55-62.
[8]Madison, Notes of Debates, July 20.
[20]The final draft of the Committee of Detail is in Madison, Notes of Debates, August 6. Working papers of the Committee are in Farrand, Records, v. 2, following the July 26 entries.
[21]Madison, Notes of Debates, and the Convention’s Journal, in Farrand, Records, August 27.
[22]For Morris’s maneuvering to get several important matters relating to the executive referred to the committee, see Raphael, Mr. President, 100-106.
[23]For the committee’s report, see Madison, Notes of Debates, and the Convention’s Journal, in Farrand, Records, September 4.
[24]Madison, Notes of Debates, September 8.
[29]Madison, Notes of Debates, and the Convention’s Journal, in Farrand, Records, September 12.
[30]William A. Treanor, “Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution,” Presentation to San Diego Originalism Conference, February 2019, 111-112, papers.ssrn.com/sol3/papers.cfm?abstract_id=3383183.
4 Comments
Great article, thank you. It confirmed my belief that the Founders would approve of the current hearings. Although I am fairly certain that the current situation has gotten far crazier than anything they could have imagined in their worst nightmares.
It’s always interesting and enlightening to learn how something we now see as set in stone came into being. The arguments for and against, the changes and compromises. It is well too to always try to understand the Framers’ points of view in that moment in time and the forces that molded them.Thank you.
Ray – An excellent and obviously timely analysis.
I read somewhere that a President impeached AND convicted (that in itself a distinction that most people miss) would not necessarily be removed from office. This was from an authoritative source, not merely someone’s Twitter post, but I haven’t been able to find the article again. Is this possibility something you came across in your research? If so, I wonder what alternative punishments, short of removal, might have been contemplated.
I found the article – it’s from the Papers of George Washington website, and it does indeed discuss impeachment with a conviction but without removal. For what it’s worth….
https://gwpapers.virginia.edu/impeachment-and-the-constitutional-convention/