(Cross-Posted at ProgressiveHistorians.com)
Lawyers like to conjure up our Founders when considering matters of Constitutional significance. "Original Intent" they call it.
Let's contemplate the "Original Intent" of our Founders on Impeachment, shall we?
One Caveat: I am not a lawyer, nor do I pretend to know enough about the chapter-and-verse details of the writings of our Founders such as the Federalist Papers, or of their personal correspondence amongst themselves and others on matters of Presidential Impeachment, but I do know how to read the Original Version of the Constitution they created and, from that, I will speculate about what must have been on their minds when they wrote it.
Let's think about the Vice-Presidency for just a minute:
The original version of Article II, Section 1 discusses how the President and the Vice-President are to be elected separately by the Electoral College, not as a political team as we know it today, but as individuals, and most critically... as political rivals!
That's right. The "Original Intent" of our Founders was that the President and the Vice-President be political rivals, until the election of 1800, when...
Burr tied Jefferson with 73 electoral votes, making him eligible for President and sending the election into the U.S. House of Representatives. After 36 ballots, Jefferson was elected President and Burr elected Vice President.
...which led directly to the ratification of Amendment XII in 1804.
The Constitution was constructed so that one branch of government would have the power to rein in abuses of power by the other two branches. ONE of the checks of Presidential malfeasance lost in 1804 was this one from Article I, Section 3:
The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.
By assigning the Vice-President to be the President of the Senate, any President that might serve while Congress was politically divided would probably be the political LOSER of a tie vote in the Senate, thus checking the power of the President, and not the political WINNER as we currently experience.
But this isn't a diary about the Vice-Presidency. It's about Impeachment, and that brings me to the SECOND check of Presidential malfeasance lost in 1804.
Supppose the President were to commit treason, bribery, or other high crimes and misdemeanors. Article II, Section 4 states: "The President... shall be removed from office on impeachment for, and conviction of" these offenses.
Let's now consider the critically important political consequences of this as originally construed by our Founders, but which no longer exist:
If a President is removed from office via Impeachment, then Article II, Section 1 states that the Vice-President assumes the office and duties of the Presidency, but consider our Founders' original words:
In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President...
Take careful note of the priorities they expressed in their language:
Removal, death, resignation, inability.
Now remember that in the 1780's, the state of the medical arts was such that death and disabilty were rampant when compared with today's standards, and yet, our Founders chose Removal (that is, Impeachment) as the first priority on their list.
This is where I speculate: I interpret this to mean that our Founders intended that "removal of the President from office" be more common than the ubiquitous death and disability of the times. Even if my speculation on this point is wrong, the political consequences are what I'm most interested in considering with this diary.
Our Founders intended that the Vice President replace the President when impeached, but this would mean that one politician would be replaced by that politician's chief political rival. In other words, Impeachment of the President was originally intended by our Founders to hand the Presidency over to "the opposition".
This is the SECOND check on Presidential power lost in 1804 to Amendment XII:
When the President commits an impeachable offense, the Founders' Original Intent was that political control of the Presidency be changed to the control of the President's chief political rival.
This change of control was originally intended as a check to make the President fear committing an impeachable offense. It is this very fear, that President Bush and Vice President Cheney lack.
All of this is to make the following case:
If you believe that both our Republican President and his Republican Vice President have commited crimes against the Constitution, then their simultaneous Impeachment and removal from office should not be considered an inappropriate quest for power by Congressional Democrats.
In fact, I am confident that in light of current circumstances, our Founders would have intended that our Speaker of the House should become President, even if she(!) IS a Democrat.