Subtitle: July 20th.
Since the delegates in Convention determined yesterday that State legislatures would appoint electors to the Executive office, the next logical question was, “how many?” Elbridge Gerry (MA) motioned a starting point, an initial number of electors per state for the first election and suggested, NH 1, MA 3, RI 1, CN 2, NY 2, NJ 2, PA 3, DE 1, MD 2, VA 3, NC 2, SC 2, GA 1.
Notice the semi-federal nature of Gerry’s electoral vote allotment. Yes, more populous States had more electors, but their allotment nowhere near approximated the existing population ratio amongst the States. Now, maybe I’m making something out of nothing, but George Washington was going to be the first Chief Executive no matter the allotment of Electoral College votes. Perhaps delegates reasoned the same way. With little debate they carried Gerry’s motion as to the number of electors, chosen by state legislatures, in the first election, 6-4.
A portion of the 9th Resolution, “to be removable on impeachment and conviction of malpractice or neglect of duty,” was next.
While we take Presidential impeachment for high crimes and misdemeanors by the House and trial by the Senate for granted today, it was a troubling issue at the Convention that impacted, and was in turn impacted by who or what body appointed the President, his term length, and relationship to the other branches. Would future Congresses convict and remove the Chief Executive over policy differences? Gouverneur Morris (PA) thought so, which is why he would render the Executive un-impeachable, like the British Monarch and for the same reason. Instead, Congress could impeach and remove executive branch ministers, just as Parliament sometimes did with the King’s advisers. Besides, if he was limited to short terms of office, why put the nation through the trouble?
On the other hand, Benjamin Franklin viewed impeachment and removal as a necessary check on the occasional rogue President. Impeachment, while wrenching to the nation, wasn’t violent. Provide a peaceful alternative to violence and assassination. Also, since impeachment by legislative bodies stood for a grand jury, they were available to acquit an innocent man as well.1
Madison elaborated justification for impeachment to include incapacity, negligence, perfidy, perversion of his administration, peculation, oppression, and betrayal. What if, like King Charles II of the UK, the President took a foreign government salary? Certainly, no matter who or what body appoints him, there must be some ultimate check on his behavior.
As Elbridge Gerry (MA) succinctly put the matter, a good magistrate will not fear impeachment. A bad one ought to be kept in fear of them. This Magistrate is not the King but the prime-Minister. The people are the King.
On the question, “Shall the Executive be removable on impeachment and conviction of malpractice or neglect of duty,” passed 8-2.
Next, the Convention agreed unanimously “that the Electors of the Executive shall not be members of the Natl. Legislature, nor officers of the United States, nor shall the Electors themselves be eligible to the supreme magistracy.” At every possibility, delegates wrote anti-corruption clauses into the Constitution.
James McClurg (VA) queried as to the powers of the Executive. The committee of detail would have an easier time in their work if they had direction as to the extent/limits of Executive power.
Near this midpoint in the convention we see the outlines of government: three branches, electors to the branches, and some mutual checks. But, what about the nuts and bolts limits to their authority? In the UK, its unwritten Constitution was, as a practical matter, whatever Parliament said it was. That wouldn’t do for the Framers’ Constitution. So, the obvious answer was to shackle the Executive in his powers. But, the first man, Judge Gunning Bedford (DE), to noodle the best approach, the one in the finished Constitution, was instead to restrict Congress’ authority. Article I assigns limited legislative powers “herein granted,” while Articles II and III give the whole of Executive Power to a President, and the Judicial Power to a Supreme Court and inferior courts created by Congress. Brilliant!
1. In his Discourses on Livy, Niccolo’ Machiavelli praised the Grand Jury of republican Rome. The use to which Ben Franklin alluded was to identify and silence the source of destructive “whisper campaigns” that attacked and subverted the character of public men. See Book I, Chapter 8. In this way President Trump, to clear his name, should have immediately called for an impeachment inquiry of groundless and destructive “Russian Collusion” that sapped his public support.