The Purpose and Powers of the Senate, Part XVII: Maladministration and Misdemeanors, contd.

    Granting the soundness of Gouverneur Morris’s September 8^th argument in general – that, “There could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out” – there would seem to be at least one scenario for which he entirely failed to account. It was an understandable oversight, given what he knew and what he assumed about how the draft constitution would operate, but one which would now seem rather glaring in its obviousness. His assumption, as noted above, was that a truly incompetent President would inevitably be removed from office upon having to face re-election, thus allowing the House and the Senate to instead concentrate their attention upon policing actual crimes or misdemeanors. What Morris takes as a given, of course, is that Senators would not want a President to be removed unless they were incompetent or guilty of some category of misdeed. But what if a majority of Senators simply didn’t like the President very much? What if they felt that the President was getting in the way of their political objectives? Doubtless, Morris felt this an unlikely occurrence given the manner by which the chief executive was to be elected under the Constitution. The same state legislatures whose responsibility it was to appoint Senators were also tasked with appointing slates of electors who would in turn cast their vote for President. Recalling that this was all intended to take place in the complete absence of political parties, one is perhaps given to understand why Morris did not perceive this to be an issue. Logic would seem to dictate that the state legislators would choose their Senators and their electors in such a way as to almost always guarantee a healthy relationship between the President and the Senate. And why should they have done otherwise? Why should a given state assembly select a Senator possessed of opposing views to the man they knew that their chosen electors would support? Not every slate of electors would end up voting for the winner, of course, and only one-third of the Senate would be up for re-election at the same time as the President, but the end result would almost certainly be the same. Come what may, there would more than likely be a majority of Senators in any given session of Congress who had been appointed by state legislatures that had also helped to elect the President.

    What Morris did not consider, however – nor would he have had any reason to – was the possibility that a President might at some point be chosen by a different electorate than the Senate. In 1787, as aforementioned – and for some time thereafter – the assumption of most of the Framers was that the legislatures of the various states would simply choose those states’ electors directly. The draft constitution did not specific this course of action, rather leaving it up to the various states how their respective electors were chosen. But the “legislative method” was definitely the simplest option, and likely for that reason became the default across most of the states. But what if, in the fullness of time, certain states began to experiment with new methods for choosing electors? And what if, as these same experiments were being conducted, informal political factionalism gave way to a rigid, formal party system? Both of these outcomes did eventually take place, of course. Over the same broad period of time that the Anti-Administration and Pro-Administration factions which dominated the 1st United States Congress (1789-1791) gave way to the Republicans and the Federalists and then to the Democrats and the Whigs, states slowly but surely began to abandon the legislative method in favor of a simple popular vote. Not every state made this transition, it bears noting, and those that did certainly didn’t do so in a coordinated manner. But the impetus and the end results were broadly the same. The establishment of a consolidated party system encouraged further competition in the electoral sphere, with the appointment of presidential electors becoming a primary partisan battlefield. And while the legislative method was favored by both sides initially – no doubt because it streamlined the electoral calendar by allowing legislative elections to determine a state’s presidential vote in advance – the populist rhetoric of the Republicans/Democrats eventually led them to support universal male suffrage as the default mode in all elections. States controlled by these populist partisans accordingly began adopting popular election as their preferred method of selecting presidential electors, to the extent that, by 1832, the only state that stuck fast to the legislative method was hidebound South Carolina.

    The end result of these developments within the context of the relationship between the President and the Senate – for those among our readers who by now have lost the thread – was the emergence of a kind of “gap” in terms of how each of them were elected. That is to say, by the beginning of the 1830s, Senators and presidential electors were no longer both chosen by the same state legislatures. Senators were still appointed by the members of these state assemblies, but presidential electors were almost all chosen as the result of a popular vote. In consequence, while the membership of the Senate throughout this period remained closely intertwined with state and party politics, presidential elections took on an increasingly popular character. In practice, this meant that parties which could rely on the vagaries of the apportionment process to secure reliable majorities in state legislative elections – which in turn guaranteed them control over Senate appointments – were at times forced to confront the fact that a raw count of the voters during a presidential election did not necessarily come out in their favor. Careful gerrymandering may have ensured that “undesirable elements” were undercounted in terms of the state legislative vote, but a “winner-take-all” ballot could potentially reveal that the dominant party was actually in the minority in terms of popular support. Senators might accordingly have found themselves in the awkward position of being from the opposing party to that of the President who had won their home state.

    To construct a hypothetical based on this sort of scenario, imagine a Senate dominated by one party which controls the majority of state legislatures and a President from the opposing party who enjoys overwhelming popular support. The President rails against the extent to which his opponents have rigged state elections in their favor but at no point oversteps his authority or behaves in any way improper. The Senate majority rankles at the popular discontent that the President is stirring up but determines to wait until the next election before making their move. In spite of their desire to be rid of this troublesome rabble-rouser, the party which holds the majority feels that this time around they can swing the vote in their favor. But when the votes are eventually tallied, the opposite has in fact occurred; the popular President is overwhelmingly re-elected. The Senate majority now feels deeply threatened, fearing as they do that his victory will only embolden the President to pursue a campaign of wholesale electoral reform. They tried to make their case to the people, painted their opponent as an incompetent, but the people refused to listen. All hope indeed seems lost until the party leadership determines that impeachment is the only viable course. It is not permitted by the Constitution for Congress to remove a President simply because of a disagreement; not even actual incompetence constitutes ground for conviction and dismissal. But what else can the opposing party do? Allow the President to continue with his campaign and watch as their powerbase is systematically dismantled? Never. So, a series of charges are drawn up – false though they may be – a series of votes are held in the House, the trial goes to the Senate, and the popular President is removed.

    Mr. Morris, as aforementioned, did not think such an outcome possible. He believed that Senators would restrict themselves to matters of crime and of fact, and that pursuant to their responsibilities would never falsely convict a chief executive. But why not? Granting that he was speaking at a time when the political institutions and political culture of the United States appeared unlikely to produce a result of the type described above, he still showed a degree of faith in his fellow Americans that would seem nothing short of heroic. Parties, in the formal sense, might not have existed in 1787, but political factionalism was definitely a feature of contemporary American political culture. Indeed, Morris’s home state of Pennsylvania was famous for the fractious character of its public life, with debates during the colonial era between the supporters and the detractors of the proprietary Penn family at length giving way to a deeply entrenched rivalry between the state’s conservative and radical political elements. Why, then, with the example of just this one state in mind, would he have thought it impossible for Senators to, “Say untruly on their oaths [?]” Why is it he could never imagine there coming a time in American history when deeply acrimonious partisan disagreement was the norm at even the highest levels of government? None of this is to say, mind you, that Morris should be castigated for his apparent  naivete. That he did not believe his countrymen capable of such self-serving duplicity is hardly a knock against the man. That being said, his perspective on this issue in particular would seem to indicate just how it was at least some of the Framers understood their country and its inhabitants.

    Granting that much of the debate which took place over the course of the Philadelphia Convention concerned the various remote possibilities and edge cases that might have resulted from certain provisions described by the proposed constitution, many of the Framers nevertheless showed a tremendous amount of faith in both their fellow citizens and generations to come. They were not guileless, to be sure. On the contrary, they invested a great deal of time and effort into devising safeguards and mechanisms intended to prevent the responsibilities which they were allocating from being abused for personal gain. But it was mainly individuals whom the Framers seemed inclined to mistrust. Doubtless owing to their experiences with reactionary royal governors and with the British Crown itself during the colonial era and the Revolution, the popular suspicion of the American people tended to focus on the idea of corrupt, arbitrary, and self-serving executives. And while this tendency did lead to the creation of a draft constitution which, though it did describe a substantially powerful chief executive, carefully constrained and checked every expression of executive power, it also necessarily glossed over the possibilities and implications of mass action, mass movements, or partisan organization. Legislatures, by and large, were not viewed as sources of danger by the Framers, with perhaps the notable exception of the cannily observant James Madison. He was among the very few of his colleagues who understood the American experience in 1780s as an object lesson in the possible emergence of a kind of legislative tyranny. Gouverneur Morris, as his cited comments make plain, was among the handful of other Framers who shared this mindset, but most of their colleagues held broadly opposing views. To their thinking, a truly representative legislature could not possibly pose a threat to the people’s liberties. Indeed, how could it? Being elected by and from among them, it would be the people’s proxy, and would guard their rights just as naturally as it would guard its own.

    As noted above, what this kind of mindset entirely failed to consider was the eventual emergence in the United States of America of both an entrenched, stable party system and a professional political class. The creation of one, to be sure, would make the advent of the other that much more likely. A formal party apparatus with sophisticated funding mechanisms and a well-developed communications network would make it much easier for individual office-seekers to pursue their political ambitions without being forced to rely exclusively on personal wealth. Indeed, pursuant to a degree of proven and repeated success, politics might itself become a source of wealth and prestige for a given handful of lucky individuals. And as these people built upon their prominence in public life and established themselves as popular brands, family dynasties might conceivably be formed from which every generation would be expected to contribute legislators and executives fit to carrying on the noble tradition of public service. Granted, even among these pseudo-aristocrats there would still exist truly popular public servants who could claim with all sincerity to represent the ideals and assumptions of their constituents, but how much sway might these transients hold over the party apparatus that supports them? Real power would surely rest in the hands of the most prominent, the wealthiest, and those with the connections needed to keep the party going. An urban artisan or a small-scale farmer might succeed in serving for a term or two in Congress, but real staying power would belong to those who could secure funding and recognition indefinitely. These men, who would between them hold the reins of the party apparatuses, would accordingly form the nucleus of American political life.

    Bearing all of this in mind, the hypothetical described above would not seem particularly unlikely. Professional politicians, driven by a desire to strengthen the party apparatus from which they largely derived their social prominence, would almost certainly develop a wildly divergent understanding of what was best for their contrary from that of the average American citizen. And if this was to be the case, it might rather be taken as a given that the explicitly partisan electors of the various Senators representing the states in Congress would also have very different ideas about what constituted a fit President than might the voters in those same states. Driven by potentially opposing concerns, the state legislatures might choose mainly conservative Senators while the voters as a whole might select an ardently reformist chief executive. And in light of the conflict that was bound to result, why should it have been unthinkable for the aforementioned Senators to act in a manner less than honest? If their careers, their preeminence, and even their fortunes were on the line, why shouldn’t they have made use of whatever tools were at their disposal? The people would be displeased, there can be no doubt, but what does a professional politician care about displeasing the people? Gerrymandering is what wins elections, and media coverage, and fearmongering. The people are not to be followed, but led, directed, even manipulated. They don’t know, quite simply, what is good for them. And if, now and then, they succeed in expressing their dissent at the ballot box, the only sensible thing to do is act from purest self-preservation.

    This is, to be sure, a deeply cynical description of American democracy as it developed in the middle of the 19^th century, but one which, in fairness, cannot be said to ring entirely false. And in any case, what is arguably more important than how or why things progressed to this point is the fact that the Framers – for the most part – did not predict anything of the sort. They did not necessarily fear the things which history makes it clear that they should have. On the contrary, far from foreseeing the emergence of an increasingly disconnected and self-serving professional political class deeply invested in the success of a set of formal political parties, most of them were far more suspicious of the rise of a Julius Caesar-esque demagogue whose personal popularity and boundless ambition would allow them to subvert the rule of law and attain a degree of practical authority verging on imperial. They were not wrong, necessarily, to fear this latter outcome – as recent history in particular has increasingly shown – but the fact that it received the greatest share of their attention would seem to say a great deal about how they viewed both their country’s future and the role that their work would play in the same. By and large – with the aforementioned exceptions – the Framers were remarkably hopeful when it came to the fellow citizens. And while they did anticipate that personal ambition would inevitably play some role in the rhythms and dynamics of public life in the American republic – to the degree that they deliberately structured certain powerful institutions so as to redirect ambition in collectively constructive ways – they also appeared to take it for granted that public service would become a central driving force at the heart of the American character.

    Consider, by way of further example, the aforementioned manner by which the Constitution was designed to balance ambition against ambition in pursuit of a safe and functional administrative equilibrium. This was Madison’s pet initiative in particular, but one which he managed to convince the majority of his colleagues to adopt. Rather than attempt to devise a myriad of mechanisms and safeguards for the purpose of restraining or disincentivizing the aspirations of every officer of the national government, the Virginian instead proposed that each branch, or department, or institution, or individual be allowed to pursue what came naturally. Legislators should be allowed to seek after legislative supremacy, and judges after judicial supremacy, and executives after executive supremacy, not without limits, but to the extent that their respective efforts would end up cancelling each other out. The legislature would check the executive, the executive would check the judicial, the judicial would check the legislative, and so on. The final result, all things going to plan, would be that the three powerful branches of government would hold each other in stasis while also being relatively unfettered from excessive constitutional restrictions. It would not be a neat system, to be sure, nor one that didn’t flirt with danger, but such was bound to be the case when human beings were the raw material. As Madison accordingly reflected a short time later in Federalist No. 51,  

It may be a reflection on human nature, that such devices should be necessary to control the abuses of Government. But what is Government itself, but the greatest of all reflections on human nature? If men were angels, no Government would be necessary […] In framing a Government which is to be administered by men over men, the great difficulty lies in this: you must first enable the Government to control the governed; and in the next place oblige it to control itself. A dependence on the People is, no doubt, the primary control on the Government; but experience has taught mankind the necessity of auxiliary precautions.                 

    Thoughtful though this particular arrangement of ambition and responsibility most assuredly was, however, it did necessarily take as its basis a fundamental assumption as to the nature of political power in the American republic. Namely, it more or less prefigured the notion that those who attained positions of public trust in the United States would pursue authority for the purpose of achieving some manner of general good. That is, it assumed a broadly altruistic motivation on the part of the individuals whose ambitions were going to be directed towards maintaining a stable balance of power. As Madison would have it – along with those he managed to convince – the three branches of government would constantly probe and prod at each other in search of some manner of advantage for the purpose of more capably achieving the various policy goals they desired. The executive branch would seek more executive power in order to more capably wield the authority which it felt was its right; the legislative branch would seek to expand its legislative authority so as to better serve its various constituents; and the judicial branch would pursue a wider degree of judicial authority for the purpose of securing its rulings and ensuring that its understanding of the law reigned supreme. The American people, in all cases, were to be the beneficiaries of these efforts, just as they were to benefit from the resulting clash and stabilization. But what if, given the aforementioned emergence of a socially disconnected political class, that last aspect fell away? What if, no longer all that concerned with serving a people whose electoral support had become increasingly inconsequential, the three branches of government which the Constitution described fell to scrambling for power solely for its own sake?

    Perhaps unsurprisingly, this did not seem to be an outcome which any of the Framers felt much cause to contemplate. Granting that none of them were what one might now refer to as “populist” in their outlook – which is to say that their views on democracy and popular participation in government were fairly conservative – they were still in no way inclined to predict the simultaneous emergence of an entrenched party system, a professional political class, and a large, relatively unrestricted electorate. These three things have since essentially combined to produce a political climate in which the goals and priorities of public servants and those of their ostensible constituents are quite often found to be in direct opposition. In consequence, while members of the legislative and executive branches of the United States Government still theoretically pursue such popular objectives as they feel will secure their continued reelection, in actual fact these individuals tend to pursue only such specific goals as their party organizations and financial backers have identified as being of particular importance. Public office is accordingly sought after, less out of a desire to deliver desirable outcomes to given groups of constituents than as a means of simply gaining and holding onto power. Within such a climate, while the inherently oppositional arrangement of authority which Madison described may still function to prevent any one institution from attaining supremacy over all others, it would no longer seem to provide much benefit to the people at large. Rather, though the system was originally structured so as to prevent any one of them from claiming victory, the three branches nevertheless persist in attempting to sabotage each other with little regard for the harm that their actions might be visiting on the American people.

    It bears noting, once again, that Madison and his colleagues ought not to be held in contempt for failing to account for the likelihood of this particular outcome. Based on their own personal experiences and their particular philosophical proclivities, they anticipated individual ambition being the most likely source of danger within a republican-style representative government. Legislatures could be trusted, they affirmed, as their connection to the people was an exceptionally direct one. And while the judiciary had historically been a source of corruption and abuse within the Anglo-American tradition, courts were fortunately both constrained by the law in how and when they could act and limited in the extent to which they could enforce their own rulings. But the authority of an executive was almost intrinsically a source of danger. Executives tended to be singular, capable of acting on their own, and they moved quickly by design. Indeed, they were by far the most active branch of any government of which they were a part. These were potentially useful characteristics, to be sure, specifically within the context of a sudden crisis on a national scale. But they might also potentially allow a particularly ambitious individual to circumvent the authority of otherwise co-equal branches of government for the purpose of elevating themselves to a paramount position of power. The governors of the various Thirteen Colonies – be they appointed by the Crown of possessed of authority in their own right – had not infrequently sought to do just that over the course of the period before and during the American Revolution, the result of which was the emergence of an abiding suspicion among the likes of the Framers as to the safety of unchecked executive power. This suspicion played a large part in determining the final shape of the Constitution, and it is to the credit of its authors that it has thus far succeeded in preventing the emergence of that which they most feared. But what they failed to account for has become far more pernicious. Indeed, the emergence of organized political parties and the professionalization of public service has so upended the basic calculus of American political life that it might now be fair to say the Constitution was written for an entirely different country than the one it now governs.

    But while this theme – i.e., the difference between what the Framers specifically intended and how the present government actually functions – is certainly an important one which bears further examination, there yet remains the conclusion of the discussions of September 8^th to account for. As previously noted, James Madison and Gouverneur Morris had given voice to opposing positions when it came to holding a potential impeachment trial in the upper house of Congress. Madison thought it unwise to do so, particularly as it would seem to make the President “improperly dependent” on the Senate, while Morris felt that the Senate could practically be trusted. There was, “No danger [,]” he said, “That the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.” The question at hand, it seemed, was whether the Senate would more often act selfishly or altruistically; would it allow the electoral process to remove unpopular but otherwise innocent chief executives or would it get into the habit of jettisoning any President that succeeded in many themselves obnoxious? Charles Pinkney of South Carolina came down very much on the side of Madison, going so far as to assert that the Senate’s untrustworthiness was a given. The President, he agreed with the Virginian, in the event that impeachment trials were to be held in the Senate, would be, “Too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst. him, and under the influence of heat and faction throw him out of office.”

    This was, to be sure, a far more guarded attitude than was all that common among the Framers. Indeed, far from holding the very concept of the legislature aloft as the bastion of liberty and responsibility in the Anglo-American tradition, Pinkney rather describes it as a source and site of “heat and faction.” Under the circumstances, this would seem to have placed him closer to Madison in terms of his philosophical proclivities and his basic suspicions than to those who conversely valued a degree of legislative supremacy. Doubtless, Pinkney had seen the same partisan excesses in his native South Carolina that Madison had witnesses in the government of the state of Virginia and came to essentially the same conclusion. Namely, that while there was no cause to grant unfettered power to the executive branch of a government, a legislature that has become the site of extreme partisan conflict could be just as tyrannical and capricious as any king, governor, or president. It therefore stood to reason that while the responsibilities and the limitations of the office of chief executive were most certainly in need of very careful consideration, so too were the powers to be granted to the relevant legislative assembly.

    The counterargument next offered by North Carolina’s Hugh Williamson is of particular interest for at least two reasons. First, it ran so completely counter to Pinkney’s assertion as to very nearly be humorous. While the South Carolinian believed that the Senate would treat its authority within the context of impeachment trials too frivolously, the North Carolinian held the opposite to be nearer to the truth. “There was more danger [,]” he said, “Of too much lenity than too much rigour towards the President, considering the number of cases in which the Senate was associated with the President.” That at so late a point in the process by which the Constitution was drafted, two of its authors disagreed on so fundamental a point as how the legislature of the proposed national government was likely to act towards the office of chief executive would seem to be, on its face, both a startling and revealing thing. The Philadelphia Convention, it seemed, while having arrived at a degree of consensus by the time it adjourned in September of 1787, evidently did not conclude in a spirit of total and perfect harmony with every outstanding issue comprehensively resolved. Rather, as the cited difference of opinion would seem to indicate, the gathering continued to be the site of thorough – one might even say fundamental – disagreements until almost the moment that it gaveled itself out of existence. Bearing this in mind, one might be even less inclined to understand the Constitution as any one of the Framers’ particular idea of perfection so much as it was simply the best result that this specific group of men could manage before they become quite sick of each other and insisted on being allowed to return home for the winter.

    The other element of Williamson’s commentary which would seem to bear further reflection is the specific reason he gave as to why he felt the Senate was liable to be too lenient with the President. It was, he said, because of, “The number of cases in which the Senate was associated with the President [,]” that the former would be disinclined to discipline the latter. Not only was this a reasonably cogent point on its own – taking account, as it did, of the degree to which the Framers had thus far tied the two institutions together for the purpose of appointing various executive and judicial officials – but it also spoke more broadly to one of the key characteristics of the Constitution as a whole. The national government which the Framers were in the process of describing was not merely a collection of administrative bodies each rigidly confined to their separate spheres and each bound by different sets of restrictions and regulations. There was to exist, make no mistake, a distinct “separation” of the various powers which they each of them possessed, but there were also a number of responsibilities which they intentionally shared. The President, for example, could not appoint federal judges. They could only nominate; the Senate held the power of confirmation. And the federal courts could not enforce their own rulings. They could only render judgement; Congress and the President held the power of enforcement. Even Congress, which in the 1770s and 1780s had single-handedly guided the war effort against Great Britain during the Revolution, could no longer carry out the prosecution of an armed conflict on its own. Under the Constitution, they could only declare war; the President was the one who commanded the military. These jurisdictional overlaps were intended chiefly as a form of restraint. By dividing certain responsibilities between several institutions, the Framers sought to prevent any one of them from attaining a tyrannical degree of supremacy. But while they did achieve that much – arguably – they had an additional consequence as well.

    So conceived, the proposed Constitution was a tightly woven tapestry of both power and restraint. In consequence, while changes may have been necessary once the basic framework was established, every alteration had the potential to unravel the entire enterprise. The comments of Pinckney and Williamson would seem to make this case between them. The former disapproved of holding impeachment trials in the Senate because that body, he felt, would too readily remove whatever chief executives a majority of its members didn’t like. The latter, meanwhile, held that the opposite was the case; that the Senate, having cooperated with the President on various executive and judicial appointments, would be reluctant to remove them from office even if evidence of their crimes was made plain. Ultimately – depending on context – both men were potentially correct. It was quite conceivable, given a difference of agendas and priorities, that a given majority in the Senate might think it a beneficial turn to remove an uncooperative President. Just so, if the Senate majority and the President were of like minds and had worked well together, it was equally conceivable that said majority might decline to remove a chief executive whose guilt was otherwise obvious. That either of these scenarios could have come to pass would seem to speak to the quality of equilibrium which the Framers had between them achieved. Sometimes the various branches of the national government would be inclined to work together and at other times they would be inclined to work at cross-purposes. So long as the administrative framework of which they were a part held them in this manner of stasis, the determining factors would depend on context; how popular were the major players, what were their goals, were their objectives strictly legal, and so forth.

    To change one element of this arrangement, in consequence, would be to almost certainly upend the entire balance of federal power. Alterations could be made, of course. Indeed, some modifications were at some point very likely to prove essential. But the very nature of the beast would mean that any such changes would need to be considered with great care. Roger Sherman’s response to Mr. Williamson likewise spoke to this basic truth. The gentleman from Connecticut, it seemed, was in disagreement with Pinkney and Madison. Rather than hold the Senate as an improper site for impeachment trials – or affirm the validity of instead holding them in the Supreme Court – he instead described, “The Supreme Court as improper to try the President,” specifically, “Because the Judges would be appointed by him.” As with Williamson’s preceding remark, this was a perfectly valid observation in its own right. While a President who had nominated a given Supreme Court Justice would have no means at their disposal to threaten said jurist in order to secure their cooperation during an impeachment trial, it was surely better to avoid even the appearance of impropriety by ensuring that such an outcome could never actually take place. But what Mr. Sherman’s commentary also revealed was how interconnected the various institutions described by the proposed constitution had become. It was true, as Williamson noted, that the relationship which the document in question described between the Senate and the President might potentially incline the former towards excessive leniency to the latter. But it was also true, as Sherman noted, that allowing the Supreme Court to try impeachments might have represented an even worse outcome given that some number of the judges were likely to owe their positions to the defendant.

    The reason for this, of course, was that federal justices were to be nominated by the President and approved or denied by the Senate, the purpose of which, in turn, was to prevent federal jurists from becoming the cronies of the chief executive. What the resulting disagreement ultimately amounted to, therefore, was a choice between different qualities of entanglement. Was it preferable for the President to be tried by those he partnered with in making judicial appointments, or should he be tried instead by those whose appointment he initiated in the first place? While neither option could be said to be objectively correct, what was inarguable was the complexity of the situation itself. The Framers, by September of 1787, had succeeded in creating a framework of government comprised of many interlocking parts, each of which alternately supported and restrained the others. Alterations, once again, could absolutely be made, but they could not be attempted thoughtlessly so as to satisfy a singular objective. To alter any one aspect was essentially to alter the functioning of the whole. This should not be taken to mean that the proposed constitution was in any way perfect, for it most certainly was not that. But it did describe, for better or worse, a deeply integrated system of government, and one which it authors doubtless hoped would derive a degree of stability from its structural complexity.

    The final vote on the matter under discussion – so much as it bears mentioning at all – arguably proves out the extent to which the gathered delegates were substantially aware of what they had created. The motion at hand, as brought by Mr. Madison, was to strike out the words “by the Senate” after the word “conviction” in the draft language describing impeachment. If the vote came out in the affirmative, additional language would presumably have been hashed out and added later. As it happened, however, this was not to be the case. Of the eleven states that voted, only two – Pennsylvania and Virginia – cast their ballots in favor. It may have been true, as certain delegates noted, that the relationship which other parts of the draft constitution established between the Senate and the President potentially stood to complicate matters in the event of an impeachment trial of the latter by the former. The President, knowing their fate quite possibly rested in the hands of the Senate, might have become overly deferential to that selfsame body. And the Senate, having become sensible of the extraordinary power which it possessed, might also have become too careless in dismissing chief executives for no greater crime than being obnoxious. But under the circumstances, it seemed, there was simply no reasonable alternative. The drafting process was arguably too far along to start picking apart the various relationships that formed the basic structure of the proposed constitution.

    Granted, it would almost certainly have been possible to rewrite the core framework of the document so as to alleviate the concerns given voice by certain members. The right to advise and consent to the President’s executive and judicial nominees and to draft treaties could have been taken away from the Senate. The Supreme Court could have been reconstituted so as to make it a more suitable body for the trying of impeachments. But how long would such a process have taken in order to arrive at a result as satisfactory as that which the preceding efforts had produced? Weeks? Months? The assembled delegates had already been at work in Philadelphia for over one hundred days as of September 8^th, 1787. They’d spent the entire summer arguing back and forth, back and forth, until they’d finally arrived at something like a durable consensus. Their draft constitution was far from perfect, but it certainly appeared to be workable. It did not satisfy everyone in every aspect, but it was good enough in most aspects. In consequence, while there were certainly still pockets of disagreement among the various delegates, September 8^th effectively marked the end of the discussions that ultimately gave form to the United States Senate. Nine days later, the Constitution as a whole would be sealed. And while, even then, the document in question could not properly be described as complete – the Bill of Rights not being added until December of 1791 – the basic framework would remain as those originally present in Philadelphia described it. Or at least, it would remain so for slightly better than a century.