Chapter 1 The Constitution Jeffrey A. Engel Their government was failing by 1787, which hadn''t taken long. A mere decade after declaring independence, and only four years after winning a bloody Revolution fought to prove that point, Americans found the Articles of Confederation that bound the states together wholly inadequate. Designed during the war by representatives of thirteen independent states who longed to stay that way as much as possible, it denied federal officials the ability to effectively regulate the new nation''s trade, orchestrate a unified foreign policy, or even maintain basic civil order. State power ruled instead of federal control, and it proved incapable of coping with a steady barrage of economic blows, diplomatic insults, and widespread popular unrest. "Our situation is becoming every day more and more critical," James Madison lamented in early 1787. Frustrated by representing Virginia in a federal congress powerless to change the nation''s course, he found "thoughtful observers unanimously agree that the existing confederacy is tottering to its foundation." Calls for disunion multiplied, with "many individuals of weight" increasingly "leaning towards monarchy" for salvation.

Monarchy was what the thirteen colonies had rebelled against in the first place only a decade before--a tyrannical monarchy that had threatened their liberties, but at least had been able to provide order, which seemed increasingly appealing as an alternative to their current woes. Madison worried, as their problems grew--with seemingly little their government could do in response--that Americans were "losing all confidence in our political system" which "neither has nor deserves advocates."1 They could, at least, attempt something better, which is why delegates gathered in Philadelphia throughout the summer of 1787 in hope of repairing their fatally flawed constitution. If they failed to find a better way, or even a replacement powerful enough to tackle the nation''s problems yet constrained enough to ensure liberty''s survival, the United States would likely become little more than a footnote in history. Therein lay the real problem, and the reason the Articles had constrained federal power in the first place. Power was dangerous. Americans in this era widely agreed it poisoned any who wielded it with an insatiable desire for more, its steady accumulation engendering corruption and injustice. Freed from Britain''s powerful grip, they''d tried doing without a strong federal government of their own, and in particular without a national executive empowered to keep the peace and enforce the nation''s laws, but soon found they couldn''t live without either.

What form of government could therefore be trusted with the power it required, without simultaneously employing that power to undermine liberty? More specifically, in whose hands could such power possibly be trusted? The question defined their entire epoch. "Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men without a consequent loss of liberty," Virginia''s famed orator Patrick Henry subsequently challenged when the Constitutional Convention delegates were done forging a new government. "I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt." Their proposed salvation might ultimately prove their undoing, he charged. The new constitution forged in Philadelphia "winked towards monarchy," with a presidency and legislature empowered not so much to ensure popular freedom and prosperity as to guarantee their own.2 Henry was right, at least about one thing: It had never worked before. The new American republic lived in a world of monarchies, and no republic in history had ever been attempted over such a wide expanse and vast citizenry. Neither had any managed to retain the liberties proclaimed at its birth, as the virtuous rulers chosen to safeguard their people''s security instead came to value their pocketbooks and powers more.

Rome had fallen in this way. So, too, Athens and every other example from the classical age that the delegates to the 1787 convention studied, finding to their dismay that even the most virtuous republic proved vulnerable to this same unavoidable flaw. "There is scarce a king in a hundred who would not, if he could, follow the example of Pharaoh," Pennsylvania''s scientist and statesman Benjamin Franklin reminded his fellow delegates. "Get first all the people''s money, then all their lands, and then make them and their children servants forever." This was simply the natural order of things. "It will be said, that we don''t propose to establish Kings" in our new government, he continued. Yet "I am apprehensive," indeed "perhaps too apprehensive, that the Government of the States, may in future times, end in a Monarchy."3 Franklin''s was no isolated fear, which extended well beyond a simplistic if ominous fear of one day living under a new American king.

Leaders charged with protecting liberty, the founders believed, might one day prove its demise. That last sentence should hurt your eyes, or at least make them roll. Sweeping assertions about the unified beliefs of the nation''s "framers" or "founders"--or, worse yet, "founding fathers"--are almost invariably misleading. Most fail to appreciate the generation''s diversity and divisiveness out of ignorance. Others intentionally obscure those qualities to bolster some faulty contemporary argument. Reality was more complex. The ranks of those who contributed to the American Revolution and the independent country that followed included merchants and landowners, politicians and preachers, slave owners and those appalled by the practice, each part of a national palette so vast that few residents could reliably claim to have visited its wide expanse or even met someone from each of its thirteen states. The Revolution''s length further complicates broad assessments of its participants.

Nearly a decade separated Britain''s despised 1765 Stamp Act and the new taxes it imposed on its North American colonies from the 1773 Boston Tea Party those policies ultimately inspired. More than a decade, in turn, passed between the latter and the nation''s first presidential inauguration. Indeed, the entire period''s two signature events--literally so, as each produced documents whose endorsements were, in the moment, as important as their text--occurred eleven years apart, and the men who debated the radical and revolutionary Declaration of Independence in 1776 were far different in temperament and experience than those who composed the much more conservative 1787 Constitution. Only six signed both, a mere 5 percent of total participants, though they, too, had been changed by the intervening years of bloodshed, anxiety, loss, and triumph. The collective variety and extended chronology of those who revolted and those who constructed makes for colorful history, but it muddies the average citizen''s ability to discern the era''s applicability for their own lives. Specifically, the founding generation''s ideological and political diversity, coupled with the self-evident differences between the eighteenth and the twenty-first centuries, makes any contemporary understanding of the Constitution''s binding language difficult at best. This is more than mere inconvenience or academic concern. The Declaration is inspiring, but the Constitution''s specific wording--the result both of political compromise over issues specific to the era, as well as severe editing--continues to guide our politics today.

We may choose, as a matter of legal philosophy or political practicality, to employ the text for broad guidance as we rethink and relitigate new and old problems alike. That is the unassailable right of every ensuing generation, who in the words of retired Supreme Court justice Anthony Kennedy can "invoke its principles in their own search for greater freedom." Others may care only for its words as originally intended. "The Constitution, as you know, contains a number of broad provisions, which are necessarily vague in their application," Kennedy''s court colleague Antonin Scalia countered. "Originalism gives to those terms the meaning they were understood to have when the people adopted them.4 No matter one''s preferred methodology for interpreting the Constitution, whether celebrated as a living document or venerated as what Scalia called "the good old dead Constitution," we should at least offer its authors the respect of asking why they wrote and thought what they did. This is especially important when putting their eighteenth-century words and thinking into contemporary effect, pondering in the context of this book meaningful yet potentially debatable terms such as "treason, bribery, or high crimes and misdemeanors." To understand the history of presidential impeachments, we must start with both the office and that process as its designers initially conceived them.

5 The presidency did not arise by accident. Delegates to the federal convention met for months behind closed doors, shuttered and sealed to immunize their debates from public pressure, hammering out a government with overlapping spheres of power. None might grow too large or powerful, they reasoned, if coequal legislative, judicial, and executive branches were aligned against one another. Lawmakers could see their legislation vetoed by an executive who considered their work unwise, for example; judges could invalidate legislators'' statutes or a president''s actions if counter to the Constitution''s prescripts; and presidents required Congress''s approval before spending a dime or concluding treaties with foreign lands.