Commentary

This debate is the most thorough of the whole Convention on the topic of whether or not the executive should be impeachable whilst in office. Some argued that impeachment wasn’t necessary, or would cause other issues, such as Gouverneur Morris; he suggested that the practicalities of impeachment were a strong reason to reject it on the basis that it would be too difficult to decide who should try such an impeachment, and ‘render the Executive dependent on those who are to impeach’. Similarly, Mr Pinkney believed the legislature would be able to hold the threat of impeachment as a ‘rod over the executive’, whilst Mr King argued that the executive ought only to be impeachable if he held office during good behaviour. Otherwise, he suggested, he would be more effectively held to account by the electors.

However, many delegates were staunch supporters of the concept of executive impeachment, and sought to defend it. Mr Davie suggested that without impeachment, electors would not be able to hold the executive to account as he would spare nothing to get himself re-elected, presumably a suggestion that bribery and corruption might be resorted to if there was no proper punishment for these actions. Franklin dryly suggests that impeachment would be better than assassination, which was until that point a recourse when leaders were ‘obnoxious’, whilst Mr Madison observes that impeachment seems the best method of defence against ‘incapacity, negligence or perfidy of the chief Magistrate’.

Additionally, Mason here argues that all men should be subjected to justice and that none, not even the executive magistrate, should be above this rule. Although his declaration of ‘Shall any man be above Justice?’ could draw comparisons with the 19th Century interpretation of the rule of law popularised by A.V. Dicey (‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’), one can also look back to Blackstone to see where inspiration for this statement could have come from. Blackstone was at pains in his Commentaries to emphasise the fact that the King could not be brought before a court of law, and Mason’s declaration that no one should be above the law is suggestive of an attempt to distance the new American Constitution that they were forming from the foremost symbol of country they had had to fight for independence from.

It is interesting that after this portion of the debate, Morris reverses his position, declaring that having listened to the arguments for impeachment he is persuaded that it ought to be used. He was ‘sensible of the necessity of impeachments’ on the basis that ‘This Magistrate is not the King but the prime-Minister. The people are the King.’ Once again we see an attempt to distance the executive from the concept of a king, and it seems that Morris has dropped his previous position in favour of one that has the President brought to justice as himself, rather than through his ‘councillors’, as Blackstone suggests of the King of Great Britain.

This reversal from Morris, and the observation by Franklin that ‘History furnishes one example only of a first Magistrate being formally brought to public Justice’, tie back to the consideration that because the Framers were having to move away from the English model which treats the King so differently, their positions were more unsure than those on other considerations. Whilst many seemed to have fairly concrete plans on other issues that arose, the change brought about by this concept seems to have created less firm policy positions, meaning they were more susceptible to amendment.

Associated event

The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Impeachment Clause was debated on 20 July 1787

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