Professor Dwight seems to have never seen the records of the final Constitutional debates.
What period the Madison Papers pertain to is unclear but, I would surmise, the Constitutional Convention, before both the Federalist Papers and Elliot’s Debates.
Also during the Constitutional Convention - on the last day - we have Alexander Hamilton’s draft of the document that he envisioned, based on their discussions:
If we put these in the (presumably) correct chronology:
Suspension isn’t balanced, Madison argues.
Based on what I understand we decided, the President will be suspended from office after being impeached, says Hamilton.
Hamilton declares that the President will not be able to protect accomplices and adherents, thanks to the rules around impeachment.
Madison notes that they have a protection against misuse of Presidential pardons, if he tries to shelter an accomplice, which is to suspend the President. The person against whom he argues makes no attempt to rebut the point, seeming to concede the point, and moves to the next topic. Everyone votes and they sign the document.
Now obviously, this is undercut by the simple fact that the word “suspension” does not appear in the Constitution. However, as Professor Dwight also notes:
Which is to say, most of the Constitution is inferred from notes, reconstructions, the trust that absurdities are inaccurate readings, and the necessity of fulfilling the enumerated functions that were given in the document. As example, if the Supreme Court is to resolve disputes (as clearly required by the Constitution) and is the Supreme body for resolving disputes then it must also be the supreme body for resolving any dispute over the text of the Constitution. Anything else and they could not fulfill the function described, which would be an absurdity. It is not plainly written and yet it is so. Anything else would contradict reason and what otherwise is clearly true.
Any question of suspension has no factual answer except what the Supreme Court would decide if the question were to be posed.
However, the Court would be presented with a genuine conundrum. Any argument that a definition can only be extracted from the precise text of the Constitution, and no further, supplementary materials, no logic, no reconstructions, etc. would vanish the court itself. But, likewise, it seems unlikely that the Founders landed on the answer that the President is immediately suspended from office - as the earlier draft had it. There is no later evidence of that in the post-Convention period and we do not see it occurring in the impeachments that took place during the post-signing lives of the Founders.
More importantly, the Supreme Court would likely realise that, from a practical standpoint, they cannot create an “immediate suspension” power that had never been used before and which no one ever referenced except once in a single individual’s possibly personally-idealized version of an early draft document. It would not fly.
But, I would argue, there is a straightforward resolution to the question. As with indictment, the grand jury has no special power so long as the suspect does not attempt to do something which would cause it to become impossible to hold a fair and evidence-driven trial. For example, if the accused tried to escape the country, tried to threaten witnesses, tried to bribe officials, etc. In these special situations where the basic justice became harmed, then the Grand Jury may go beyond indictment and its powers grow.
And so with impeachment… It would resolve the question; it fits the history; it matches the underlying philosophies and norms of the judicial process; and it does seem like the Founders felt like they had a solution somewhere between immediate suspension and no suspension.
Very interesting. I had never seen this debate before. One thing to point out though is that under the previous version, 2/3ds of each House had to vote to impeach the President before a trial and an automatic suspension. So there was a high bar before any real action could be taken.
You wouldn’t want a suspension under the current impeachment rules where a majority vote of the House impeaches and suspends. Imagine the last year of the Obama administration. The GOP house could impeach Obama and Biden and then they are suspended and Paul Ryan is President. Then they slow walk the articles over to the Senate where the GOP similarly slow walks the trial.