Politics & Policy

Two Cheers for Constitution Day!

Albert Herter’s Signing of the Constitution hangs in the Wisconsin Supreme Court.
With the benefit of hindsight, the Framers might prefer the Constitution they didn’t sign.

Two hundred and twenty-seven years ago the Framers devised the wisest constitution then known to man. That was on September 3, 1787. Unfortunately, they then began to tamper with it, and the document they signed two weeks later has given us the maladies that now beset us.

What was the difference between the two constitutions? On September 3 the delegates had arrived at what they thought were two settled principles. The first was that Congress should appoint the president. Over the prior three and a half months, they had voted six times for a congressionally appointed president. At no time did they vote for a popularly elected president. The second principle was that the president might be removed by a simple majority vote in the Senate, after impeachment in the House. The senators, moreover, might do so whenever they thought the president was failing on the job and guilty of “maladministration.”

What would that have looked like, in practice? First, we wouldn’t have the gridlock that today paralyzes Washington. A president chosen by Congress would be far more likely to agree with it, especially if he could so easily be removed. We wouldn’t have our current regime, where presidents are reliably Democratic and Congress is reliably Republican, and the two are scarcely on speaking terms with each other.

I think we’d also see less extremism and more movement toward the political center. Were all sides to talk to one another, they’d find more common ground on which to agree. There would be less tub-thumping from people pushing ideas they knew would never go anywhere.

Finally, the September 3 constitution would rein in what many see as dangerously excessive executive powers. Given today’s gridlock, the president asserts that if he wishes to achieve anything, he has no choice but to legislate from the White House. And so we now expect to see a presidential amnesty for millions of undocumented aliens after the November election. That’s not in line with what the Framers envisioned, of course. They thought that Congress should do the legislating — that it would be something more than the venue for State of the Union addresses. Reining in the executive would be far easier under the September 3 constitution.

The September 17 constitution, by contrast, makes it virtually impossible to remove a president. To do so, you’d need a president from one party, the House of Representatives and two-thirds of the Senate in the hands of the other party, and misbehavior that, in Congress’s view, rose to the level of “high crimes and misdemeanors.” That happened once in American history, in 1868, and even then the GOP-dominated Senate failed to remove Democrat Andrew Johnson. Ninety years later, John F. Kennedy wrote a book that praised the heroism of the Republican senator who switched his vote to save Johnson. That’s a nice story, but it lacks the added advantage of accuracy. The senator was bribed, many say (and Kennedy’s book was really written by Teddy Sorenson).

So how did we come to abandon the September 3 constitution? Blame Gouverneur Morris, perhaps the smartest man in Philadelphia that summer. Morris was a nationalist who wanted a strong president able to govern the country through the exercise of his executive powers. As a member of the Committee of Unfinished Parts, which the Constitutional Convention had appointed to clear up the few remaining points, Morris on September 4 presented a quite different plan for presidential appointments.

It was late in the day. The delegates wanted to go home. They didn’t attend to the details of the new plan. They didn’t seem to notice that the September 4 constitution required a supermajority in the Senate to remove a president. They wondered at the complicated scheme for presidential appointments but didn’t really think much had changed. They didn’t think that national candidates after Washington would emerge to win a majority of votes in the Electoral College. And if no one wins a majority, Article II throws the election to the House, voting by state, which is a form of congressional appointment. The delegates did notice that the “maladministration” standard for impeachment had been dropped; but, sadly, they resisted George Mason’s call to reinsert it.

A good many people think that the September 17 constitution is broken, and one hears calls for an Article V Constitutional Convention. Mostly, the proposals are entirely fanciful, drawn up by true believers Left and Right: Overturn Citizens United; adopt a balanced-budget amendment. Such ideas would never command the support of three-quarters of the states, as prescribed by Article V. And they are entirely at odds with what the Framers intended.

But the September 3 constitution, now that I think the Framers might like, with the benefit of hindsight. It would give us the kind of balanced government they wanted, and not the lopsided one in which the president rules as what the never-too-much-to-be praised George Mason described as an elective monarch. Mason didn’t sign the September 17 constitution, but we just might have gotten him to sign the September 3 constitution!

— F. H. Buckley is a Foundation Professor at George Mason Law School and the author of The Once and Future King: The Rise of Crown Government in America.

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