Given this sort of disagreement in 1787, it’s no surprise that as the House has debated impeaching President Trump — culminating in Wednesday’s vote — the discussions have produced reams of commentary and analysis. As we plumb the historical record to understand what misdeeds impeachment was intended to address, we also should consider why and how we know it. The texts that describe impeachment, essential to our debate, are accessible because of a collective commitment to accountable and transparent government — and the work of archivists, librarians, documentary editors and historians, to preserve its records. Like impeachment itself, the preservation of and access to historical records is a key check on power.
One source is obvious: The Constitution of the United States lays out the responsibilities and role of each branch of the federal government in a presidential impeachment. In Article 1, Section 2, the House of Representatives “shall have the sole Power of Impeachment.” In Article 1, Section 3, the Senate “shall have the sole Power to try all Impeachments.” In Article 2, Section 2, the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” In Article 2, Section 4, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution is housed at the National Archives, which not only preserves the document and makes it available for visitors but also hosts transcription and images for download online.
Lawyers, journalists and historians working to contextualize and interpret the Constitution’s brief depictions often turn to the later writings of convention delegates, including the Federalist Papers, written in 1787 and 1788 during the effort to gain ratification of the new constitution, the text of which the Library of Congress hosts online through Congress.gov. In these essays, Alexander Hamilton and James Madison offered thoughts on the president’s powers, including how that power would be checked. In Federalist 69, for example, Hamilton argued that impeachment was what separated a presidency from a monarchy. These essays can help us to understand how the thinking of men like Madison and Hamilton evolved, and even how they differed on issues including impeachment.
Another key resource is the contemporary records of debate at the constitutional Convention of 1787, when delegates considered, defined and refined impeachment. Over 16 weeks, between May and September of 1787, delegates hashed out the structure and function of the federal government. Through Madison’s views, Pinckney’s views and those of others, we can discern how impeachment, as articulated in Articles 1 and 2, came to be defined.
The delegates debated the very complex, weighty issues that we’re still debating today: whether a process could be fair and effective enough to overturn the results of an election; whether the transgressions to trigger such a process should be precisely defined or left to the circumstances; whether the Senate or another body should convene the trial (they all agreed the House should be the locus for impeachment itself). Into September 1787, for example, they were still debating whether the Senate was the right venue to try an impeachment, rather than the Supreme Court, with the delegates arguing about which institution would be more beholden to the president and thus less likely to manage the case with integrity.
While commentators are raising these points daily, you don’t have to take their — or my — word for it. People can read for themselves how the delegates debated and voted on every clause pertaining to impeachment. Thanks to much labor and determination, contemporary manuscript sources, written in iron gall ink on 18th-century paper, are now available in more widely accessible and understandable forms like bound volumes and digital platforms.
The records of the Constitutional Convention include the original Journals of the proceedings, kept by Secretary William Jackson and the notes of various delegates, most crucially Madison. The Journals are at the National Archives, along with other records including official credentials of the delegates. Images of these can be viewed online via Fold3.com, an Ancestry.com company focused on military records.
Jackson took care with recording procedural motions and vote tallies, while Madison aimed to represent a fuller sense of the arguments and positions advanced by the delegates — quite possibly to keep his friend Thomas Jefferson, then abroad as the ambassador to France, informed. Madison’s detailed notes are at the Library of Congress where high-resolution images are available online. Only a few other delegates kept notes during the convention that have survived, in theory because the proceedings were meant to be confidential. James McHenry’s notes for August and early September provide the only other information about the final debates.
In 1911, historian Max Farrand brought together all of these materials in a three-volume set, which remains an indispensable resource, allowing us to see for any individual day what the journal records, and what Madison and any of the other note takers recorded. This helps track the development of issues such as impeachment over time. Sept. 8, 1787, for example, was a busy day. Jackson recorded in the “journal” that on presidential impeachment, delegates voted 7 to 4 to insert the words “or other high crimes and misdemeanors against the State” after the word “bribery.” But “to strike out the words ‘by the Senate’ ” failed on a vote of 9 to 2. Madison’s notes record a vigorous renewal of the debate about whether the Senate was the right venue for an impeachment trial. He was a vocal opponent and one of the “no” votes.
Madison reiterated that he “would prefer the supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.” Gouverneur Morris, however, argued that the Supreme Court was inappropriate, as they were “too few in number and might be warped or corrupted.”
Farrand’s original three volumes are available in multiple online locations, including the Library of Congress’s American Memory project and on archive.org, where they can be downloaded in various formats. Their importance is hard to overstate; in 2012, the George Washington Law Review devoted a special issue to commemorating their centennial, with an introduction and a Q & A about textualism co-authored by Supreme Court Justice Antonin Scalia, and an invaluable essay about the structure and intent of the various convention records by historian Mary Sarah Bilder.
But scholars have not stopped trying to glean a better understanding of the debates at the Constitutional Convention. In 1987, for the bicentennial of the Constitution, the head of the manuscript division at the Library of Congress, James H. Hutson, added a key “Supplement to Max Farrand’s Records” with newly available material. Many of those documents can also now be read and downloaded at Founders Online, a resource that makes freely available and fully searchable more than 180,000 items from the edited and annotated papers of six founders.
Tellingly, the final decision of the Constitutional Convention was the disposition of its records. After the delegates had voted to adopt the Constitution and to initiate the ratification process, George Washington raised the question of “what the Convention meant should be done with the Journals & c.” The last vote William Jackson recorded, on the final convention day, Sept. 17, 1787, was “To deliver over the Journals and papers to the President.” The State Department became the first repository for the records of the federal government.
That we know about the intense debate about impeachment at the founding is the result of the long-standing commitment to keeping, preserving and making accessible America’s government and key historical records. It is the work of professional archivists, librarians, documentary editors, historians, Web developers and more. It is funded by a combination of private foundations and public investment, crucially by such institutions as the National Archives, the National Endowment for the Humanities and the Library of Congress.
That we can read and study the Constitution and the convention debates reminds us that accountability and transparency are critical democratic values and critical democratic practices. As the country takes up one of the most consequential actions imagined by the framers of the Constitution, let us also understand this key feature of democracy: Access to reliable information requires consistent caretaking. It is not only journalists, politicians or historians — all of whom are vocal in their need for access to these materials — but also every American whose investment is repaid by access to our history. We should not only advocate for funding for these projects but also recognize that making records as readily available as possible is essential because they are, and will continue to be, crucial to the very form of governance they document.