James and the giant impeachment

James Madison observed, “If men were angels, no government would be necessary,” and that to counter less-than-angelic human nature “you must first enable the government to control the governed; and in the next place oblige it to control itself.” He and his fellow Founders at the 1787 Philadelphia Constitutional Convention searched for a delicate balance between establishing a regime that was strong enough to cure the republic’s ills without violating liberty. 

The creation of the presidency and Supreme Court distinguished the new Constitution from the nation’s first governing document (the Articles of Confederation) that established only a Congress. Checking and balancing these three separate, yet intertwined, branches of the federal government became the Framers’ key goal. Devotees of Newtonian physics, they searched for a governing system whose movements and gravitational pulls would function like “a machine that would go of itself.”

Yet they had only recently broken the bonds of arbitrary monarchical rule in the bloody Revolutionary War, so they had to find ways of mitigating the possibility that “enlightened statesmen may not always be at the helm,” as Madison expressed his fear. In his blueprint for the Philadelphia Convention, he proposed that the executive could be removed and disqualified from holding future office after impeachment and conviction for “malpractice or neglect of duty.” Madison borrowed from the British parliamentary practice of removing the monarch’s ministers for subverting the state or violating the rule of law. 

Another Virginian, George Mason, argued for “some mode of displacing” the executive, without reducing him to a “mere creature of the legislature.” He worried that a president might gain office by corrupt means — bribing the Electoral College, for example. “Shall a man who has practiced corruption, and by that means procured his appointment in the first instance, … escape punishment by repeating his guilt?” 

Madison agreed. Waiting to turn a corrupt president out of office by defeating him at the ballot box was insufficient. Like all of the Founders, who worried about improper influence from outside the nascent country, Madison warned that the president might even “betray his trust to foreign powers.”

As the Philadelphia Convention drew to a close, delegates substituted “treason and bribery” for Madison’s initial impeachment criteria. Mason wanted to add “maladministration,” but his Virginia compatriot worried that such imprecision would make the president a tool of the Senate, which the Constitution had selected to try impeachment cases after indictment by the House of Representatives. Mason suggested “high crimes and misdemeanors against the State” as a substitute. The Constitution’s final version eliminated the last three words, prompting debates to this day on how to define what constitutes high crimes and misdemeanors.

Mason still worried that the impeachment clause was insufficient to prevent presidential exposure to foreign influence. Virginia Gov. Edmund Randolph tried, unsuccessfully, to convince him that if a president accepted payments from a another country, he would be in violation of the Constitution’s emoluments clause — an impeachable high crime. 

Why did the Founders choose the Senate, instead of the Supreme Court, as the forum for impeachment trials? Alexander Hamilton asserted that the nation’s highest court would be too small (only six justices initially) to undertake such a momentous responsibility. The Framers’ selection of the chief justice to preside over presidential impeachments achieved, Hamilton believed, “the prudent mean” of combining the highest-ranking judge in the federal judiciary with the upper house of the national legislature. 

“Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?” Hamilton asked rhetorically. What a quaintly anachronistic argument, reflecting that in the original Constitution, and until 1913, U.S. senators were not directly elected by voters, mistrusted by the Founders, but chosen by state legislatures. 

Composer Lin-Manuel Miranda should wax lyrical on Hamilton’s still-relevant observation that impeachments “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” They are “POLITICAL,” he emphasized. Because impeachable offenses injure “society itself … the prosecution of them will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” 

Hamilton predicted with acute foresight that in impeachments these factions “will enlist all their animosities, partialities, influence and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

And back to Madison’s reality check and balance: “What is government itself, but the greatest of all reflections on human nature? … In framing a government which is to be administered by men over men, the great difficulty lies in this: A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” 

Soon we will learn if the impeachment “precaution” can operate as Madison and Hamilton hoped.

Barbara A. Perry is Presidential Studies director and Gerald L. Baliles Professor at the University of Virginia’s Miller Center, and was a Supreme Court fellow. Follow her on Twitter @BarbaraPerryUVA.