Presidential Impeachment: The Original Misunderstanding
Orth, John V., Constitutional Commentary
We must never forget that it is a[n eighteenth-century] constitution we are expounding.
Presidential impeachment and removal from office undoes the result of the last presidential election. So much is indubitably true. What is not true is that the Framers of the Constitution necessarily understood this to mean a rejection of the people's choice. The Constitution's Executive Article, Article II, proceeds in logical order: Section 1 concerns the election of the President, Section 2 the President's powers, Section 3 the President's relations with Congress, and Section 4 the President's impeachment and removal from office. Section 4 is, in other words, the negative analog of Section 1; the election of the President and the President's removal from office are the brackets that enclose the substance of the Executive Article. The architecture of the Constitution, therefore, suggests that something about the original understanding of presidential impeachment and removal may be learned from an examination of the process of presidential election.
The American President has never, of course, been directly elected by the people. Rather, the President is elected by "electors" chosen by the states: "Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...."(1) The electors meet in their respective states and vote for two persons, one of whom at least must not be an inhabitant of the same state.(2) According to the original plan, the person with the greatest number of votes, assuming it was a majority of the electoral votes, would become President and the runner-up Vice President.(3) As it turned out, the choice of the President went according to plan only three times: in 1789 and 1793, when George Washington and John Adams were chosen, and in 1797, when the ill-assorted team of John Adams and Thomas Jefferson prevailed. The experience of the 1801 election, when Thomas Jefferson and Aaron Burr each received the same number of electoral votes, led to the prompt proposal and adoption of the Twelfth Amendment, which created the present system of distinct electoral ballots for President and Vice-President.(4)
It is a commonplace of American constitutional history that the Framers did not foresee the development of a system of durable nationwide political parties. In the words of a distinguished historian: "the [Constitutional] Convention, not anticipating the rise of a two-party system, expected each state to vote for a `favorite son,' so that seldom would one candidate obtain a majority of electoral votes.... Madison thought this would happen `nineteen times out of twenty'...."(5) Careful provision was therefore made for the election of the President in case no candidate received a majority of the electoral votes. The House of Representatives, then the only directly elected element of the federal government, was designated by the Constitution to make the choice: "[F]rom the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President."6 The deadlocked electors would, therefore, be replaced by a new set of electors, the Representatives. In recognition of their new role the Representatives would vote in an extraordinary manner, not by individual Yeas and Nays but by ballot as delegates from the several states: "[I]n choosing the President, the votes shall be taken by states, the representation from each state having one vote."(7)
The drafters, both of the original Constitution and of the Twelfth Amendment, expected the House of Representatives to play a major role in presidential elections, as indeed it would have, had a party system not developed to operate the constitutional machinery. National parties focused attention on a limited number of candidates and organized the electors behind the party's choice. …