At least, that may have been the theory. In practice, the early emergence of national political parties narrowed most Electoral College votes to just two candidates. To the extent the Framers anticipated symmetry in the House’s powers of presidential selection and removal, their reasoning didn’t hold up.
Of course, that wasn’t the only flaw in framing-era justifications for vesting the impeachment power in the House. Although the Framers often referred to the House as speaking for the people at large, this simply wasn’t true in 1789. Back then, an overwhelming majority of people living in the United States couldn’t vote, including most women, blacks, Native Americans, and white men who didn’t own property. It took decades of struggle, and a bloody Civil War, to expand the franchise. The House didn’t speak for all Americans until well into the twentieth century.
Even today, this characterization of the House is open to doubt. The right to vote remains besieged on many fronts. Political parties have mastered gerrymanders that effectively waste millions of votes and massively skew representation along partisan lines. Blacks and Hispanics have been targeted by a swarm of discriminatory voter ID laws and other barriers that repress their political voice. Many states have failed to protect their voting machines from cyberattack, all but inviting electoral chaos that could sow doubt about the House’s legitimacy. And to this day, the House lacks direct representation for millions of Americans living in Puerto Rico, Guam, and other territories—all of whom can be gravely affected by presidential decisions.
In these and many other respects, idealistic claims that the House speaks for all Americans have always fallen short of reality. But the Framers’ reasoning doesn’t ultimately depend on a belief that the House is a perfect avatar of the people. Rather, it depends on the recognition that the House is the best we’ve got in deciding whether and when to confront an out-of-control president.
Although the Framers celebrated the House as a bastion of democracy, they didn’t give it sole control of impeachment. Writing for a public audience, Hamilton explained this decision by reference to general principles of fair adjudication. Behind closed doors in Philadelphia, however, there was a far more profound reason why the Framers constrained the House.
Simply put, many of the Framers feared too much democracy. They worried that “factious spirits” and “democratic licentiousness” could doom the young nation.22 As Professor Klarman explains, this “deep distrust” affected “nearly every substantive choice made in the Constitution that bore on the new federal government’s susceptibility to popular influence.”23 The Framers sought to ensure that elite Americans—educated, wealthy, virtuous, and dignified—would play a significant role in administering the country. That was particularly important for the great powers of the Constitution, such as impeachment. An ugly or ignorant mood could easily sweep the populace, agitating representatives into an unjustified assault on the executive branch. Convinced that the House would uncontrollably boil over with irrational fury, the Framers generally agreed that it couldn’t have the final say on ending presidencies.
In practice, this meant establishing a court of impeachment in which the House would prove its case. By vesting control in a more deliberative and insulated body—one less prone to splashes of democratic excess—the Framers aimed to temper popular passions. Describing the second stage of impeachment as a trial furthered this goal by evoking Americans’ historic obsession with the forms and fixtures of legal process. The president would not be expelled from office after a few hasty votes. No, the president would literally be placed on trial for his “high Crimes and Misdemeanors.”
And who better to preside over a trial than judges? To quite a few Framers, it was self-evident that the Supreme Court should decide cases of impeachment. The justices would be elite, independent, and divorced from the daily drama of politics. Further, assigning this role to the Court would address lingering concerns that the Senate was already too powerful.
Although the Framers didn’t take that path, plenty of other countries have done so. Impeachments are tried before the judiciary in about forty nations worldwide, including Burkina Faso, Cape Verde, Djibouti, France, Mali, South Korea, and Venezuela. In fact, three US states also involve their courts. New York tries impeachments before a body composed of its senate and high court, or “the major part of them.”24 Missouri uses a special commission of seven “eminent jurists” selected for that purpose by its senate.25 And Nebraska uses seven district court judges chosen by the chief justice of the Nebraska Supreme Court.26
A majority of the Framers, however, voted against relying on the judiciary. There were four major reasons for that decision. Together, those rationales illuminate how some Framers hoped the impeachment power would operate in practice.
One of the most significant objections to trying impeachments before the Supreme Court was that the president might have appointed one or more of the justices. George Mason and Roger Sherman both raised this concern.27 At bottom, they worried about independence: the entity charged with trying the president should not be populated by his appointees and thereby subject to his influence. In that circumstance, an appearance (and reality) of bias could undermine the whole process—especially if the president had nominated allies who shared his corrupt or abusive views.
A version of this issue arose in 1974. With Watergate hearings in full swing and the nation paying close attention, the Court had to decide whether Richard Nixon should be ordered to surrender his tapes. At the time, Nixon had appointed four members of the Court: Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Of that group, only Rehnquist recused himself, because he had worked closely with key players in Watergate. The final vote in United States v. Nixon was eight to zero—and rightly so. But surely the public outcry would have been furious if the Court had ruled in the president’s favor, with Nixon’s appointees casting the decisive votes. And if that sounds bad, imagine the public reaction if Nixon’s appointees had been in a position to control his actual impeachment rather than a case about access to evidence. Many of us would view that situation as intolerable and potentially illegitimate.
Next consider a variation on the same Watergate theme: What if Nixon had been removed from office, Gerald Ford had refused to pardon him, and Nixon was then convicted of federal crimes? This hypothetical exemplifies a second reason for the Framers’ skepticism of the Court: it might later sit in judgment of the president in an appeal arising from the conduct that got him impeached. Given the possibility of an impeachment followed by criminal charges, it would be incongruous and unfair for the same tribunal to have the final word in both proceedings.28
A third objection to the Court involved its size. The Constitution does not say how many justices must sit on the Court, but the Framers expected a small number. Their expectations proved well founded. The Court’s membership started at six and has topped nine only once, from 1863 to 1866. The Court’s size raised concerns at the Constitutional Convention that it would be too easy to manipulate so few people. As Gouverneur Morris warned, “the Supreme Court were too few in number and might be warped or corrupted.”29 Hamilton later made a similar point in Federalist No. 65: “The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.” In contrast, Hamilton reasoned, it would be far more difficult for anyone to corrupt a larger body of decision makers.
Finally, some Framers doubted that the fledging federal courts were up for the task. As Hamilton famously remarked in Federalist No. 78, the judiciary was the “least dangerous” branch. Lacking the sword or the purse, it possessed “merely judgment.” He couldn’t but wonder: Did the Court have sufficient fortitude to decide impeachments under crushing political pressure? And if unelected judges did manage to reach a verdict, could they reconcile the public to their final decision—especially if they had rejected cha
rges brought by the House on behalf of all Americans?
Morris gave similar concerns a different spin. If vested with a role in impeachments, he warned, the Court would inevitably be “drawn into intrigues with the Legislature and an impartial trial would be frustrated.”30 In his view, the judiciary couldn’t resist creeping politicization and secret conspiracies if thrust into a high-stakes political process.
Pulling these objections together, we can develop a sharper sense of what the Framers sought in an impeachment tribunal: (1) independence from the president in its selection process; (2) no other role in judging the president’s misdeeds; (3) enough members to resist corruption; and (4) the legitimacy, competence, and courage to adjudicate disputes between the House of Representatives and the president of the United States. With the Supreme Court disqualified, this left only one viable option in the federal government: the Senate.
James Madison led a valiant charge against trying impeachments in the Senate. Drawing on all his powers of persuasion, he warned that this would make the president dangerously dependent on Congress.31 Coming from one of history’s foremost constitutional architects, that objection had to be taken seriously. Charles Pinckney echoed Madison’s anxiety and painted a troubling picture: “If [the president] opposes a favorite law, the two Houses will combine [against] him, and under the influence of heat and faction throw him out office.”32
This concern resonated with a preexisting fear among some delegates that the Senate was too powerful.33 It already boasted authority over appointments and treaties. Adding impeachment to the mix risked exalting Congress’s upper chamber above all other branches. Moreover, presidential abuse of the appointment and treaty powers might in some cases require impeachment. Could the Senate serve as a fair judge if it had been complicit in the president’s decisions?
Yes, it could. Or so concluded most of Madison’s peers.
The Framers trusted the Senate. They imagined a legislative chamber not unlike the Constitutional Convention itself: virtuous, well-educated, and wealthy elites, steeped in republican values and committed to the national interest. With only twenty-six members, the Senate would be large enough to avoid corruption but small enough to engage in productive deliberations. Critically, unlike members of the House, senators would also serve six-year terms in office. Insulated from the pressure of regular elections, they could resist flashes of factional tumult and display comparatively greater independence of vision. In deciding affairs of state, the Senate would rely on its own wisdom and even temper.
The Senate also shone where the Supreme Court was lackluster. None of its members would owe their selection to the president. It would have no role in adjudicating the president’s criminal liability after the impeachment process. And unlike the Court, its power and legitimacy couldn’t be doubted. As Hamilton observed in Federalist No. 65, “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?”34 Assembled as an extraordinary court, the nation’s leading statesmen would render the final verdict on presidents accused of great offenses against the people.
Even then, the Senate would be held to a high standard. Only by a two-thirds vote could it convict the president on articles of impeachment. Although there is no shortage of speculation about why the Framers included this supermajority voting rule, the historical record is empty of direct evidence. Setting the decision in broader context, however, suggests a likely genealogy.
In the eighteenth century, majority rule was the default for any legislative assembly. Leading authority supported that understanding, including John Locke’s Second Treatise of Government. Benjamin Franklin thus spoke conventional wisdom in Philadelphia when he described majority rule as “the common practice of assemblies in all countries and ages.”35 This rule applied even when the British House of Lords sat as a court of impeachment.
In Western constitutional thought, the innovative idea that certain legislative decisions should be subject to a two-thirds vote dates to the 1770s. During the American Revolution, John Dickinson was assigned the daunting task of proposing a governmental plan for the independent colonies. Following substantial revisions, his draft was adopted in 1781 as the Articles of Confederation. In a break from British practice, the Articles selectively imposed a two-thirds voting requirement: nine out of thirteen states had to agree before Congress could make certain kinds of decisions—for example, entering treaties, coining money, and raising an army. The contemporary debate over this rule revealed that it was implemented not only to ensure a strong national consensus but also to force public deliberation on matters of state.
At the Constitutional Convention six years later, there was little recorded discussion of the two-thirds rule. This suggests that in the interim, it had been accepted in American political theory. At one point, Hugh Williamson of North Carolina even suggested that all congressional acts should require two-thirds approval. The Convention, though, applied a supermajority standard to only a handful of issues. Inconveniently for historians, it did so behind closed doors. But that doesn’t leave us entirely in the dark.
On the face of the Constitution, it’s clear that the Framers reserved two-thirds votes for issues of towering importance. In addition to treaties and impeachment trials, this requirement applies in five cases: (1) overriding a presidential veto; (2) expelling a member of Congress; (3) proposing a constitutional amendment; (4) permitting someone who participated in a rebellion to hold office; and (5) deciding whether a president may return to office after having been declared unable to discharge his powers and duties pursuant to the Twenty-Fifth Amendment. In these scenarios, the Constitution deploys a special voting rule to compel unusually searching reflection and widespread public agreement.
Applying that rule to impeachment makes sense. Here more than anywhere else, the Senate must strive for impartiality, wisdom, and rigor. By requiring decisive majority support for conviction, the Constitution holds the House to a demanding standard of proof. To secure sixty-seven votes, the House typically will have to surmount partisan divisions and convince some of the president’s political allies to jump ship. Where that occurs, it’s likely that most Americans favor conviction. In contrast, where the House fails to secure sixty-seven votes in the Senate, removal likely isn’t the best course for the nation—at least, assuming that the Senate has considered the case in good faith. As Justice Story observed, “if the guilt of a public officer cannot be established to the satisfaction of two thirds of a body of high talents and acquirements, which sympathizes with the people, and represents the states, after a full investigation of the facts… the evidence [must be] too infirm, and too loose to justify a conviction.”36
A two-thirds rule also shores up the standard for impeachable offenses. “High Crimes and Misdemeanors” is a malleable phrase. One way to prevent it from being bent out of shape is to require bipartisan agreement on any particular application. That’s exactly what the Framers achieved. Studying the supermajority voting rule, Woodrow Wilson remarked that the president would be convicted only for offenses causing “indignation so great as to overgrow party interest.”37
Reviewing all of these structural safeguards, you can feel the Framers’ anxiety. Impeachment was the power they most grudgingly included in the Constitution. Unsure who should hold it, they settled on Congress as the least bad option. Then they piled on limits to prevent impeachment from getting out of hand. In total, they devoted six separate clauses to the subject. Those provisions establish important ground rules for ending a presidency.
Yet in exercising the impeachment power, the House and Senate are left largely to their own devices. We’ve already explored their discretion in defining impeachable offenses and deciding whether to impeach. Now we arrive at an equally formidable prerogative: control over procedure. With only a few exceptions, including the Senate’s two-thirds voting requirement, the House and Senate can establish their own rules for impeachment. They enjoy broad latitude in structuring inves
tigations, hearings, deliberations, and votes. They can also decide the burden of proof, the rules of evidence, whether to hear testimony, the role of lawyers, and when proceedings should be public. In answering these and other important questions, Congress must rely on its own best judgment.
To most well-adjusted adults, the phrase “legal procedure” inspires a pang of boredom. But it shouldn’t, at least not here. Procedure is where romantic ideas about legislators as the voice of the people collide with institutional reality. Good process is crucial to making thoughtful, accurate, and legitimate decisions. It’s through these rules that Congress evaluates the evidence and structures its deliberations. Mastering them can make all the difference in supporting and opposing an impeachment. Moreover, if many Americans conclude that a president hasn’t been given a fair shake, they may refuse to accept Congress’s decision. Impeachments must therefore be fair and appear fair. This requires a strange and volatile brew of law, politics, and judicialized ritual unlike anything else in the US system of government.
To End a Presidency Page 15