Punishment for Impeachment - Article 1, Section 3, Clause 7

Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Comment:  This provision deals with the punishment that the Senate may impose in an impeachment trial. For the most part, the Framers followed the States' constitutional format vs. the British system, which included a broad range of punishments - including a death sentence.

In any event, a few questions have developed under this provision - the first of which is whether the Senate may impose sanctions separately. That is, is the "removal" and "disqualification" vote mutually exclusive from the "conviction" vote. The Senate believed that it was and defended its position on grounds that the punishment clause does not specify a requisite vote.

The next question deals with which proceeding comes first -  impeachment or criminal proceedings. The short answer is that neither is required first. In Federalist No. 69, Hamilton interpreted the clause, as it applied to the President, as requiring impeachment first, then they would be "liable to prosecution and punishment in the course of law." However, in practice many judges have been prosecuted, and some even imprisoned, before impeachment proceedings took place. Regarding the President, the Supreme Court ruled that the President is not immune to "subpoenas" in a federal criminal trial or from "civil litigation" for his personal conduct. See. US v. Nixon and Clinton v. Jones.

Another question dealt with whether a lesser punishment could be handed down - like a Censure. There are strong arguments for and against; however, historically, the House and the Senate have passed many resolutions condemning Presidents and the like.

Primary Source. The Heritage Guide to the Constitution.

Trial of Impeachment - Article 1, Section 3, Clause 6

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."

Comment: This clause vests to the Senate the powers and procedures regarding impeachment trials. The Senate has the "sole" power to try Impeachments for a couple of reasons. First, the Framers thought that the Senate would be smarter and more level-headed than the House of Representatives. Second, the Framers thought the Judiciary was too small to trust and that a "numerous court for the trial of impeachment" was more appropriate, as explained in The Federalist No. 65.

There are three requirements for impeachment trials. First, the Senators must be under Oath or Affirmation, which is to impress upon the Senator the importance of the occasion. Second, the Chief Justice must preside over the presidential impeachment trial, which avoids the potential conflict of interest of having the Vice President presiding over the Senate, as  (the VP normally presides as provided in Article 1, Section 3, Clause 4). Third, to convict there must be a super-majority, which is designed to make sure the consensus would transcend party lines.

A couple of issues have arisen regarding the impeachment authority. One was the Chief Justice's authority to hand down unilateral rulings. In the first presidential impeachment trial Chief Justice Chase had many rulings challenged and two were overruled. However, during President Client impeachment trial, Chief Justice Rehnquist was neither challenged nor overruled for any of his rulings. 

Another issues had to do with which procedures the Senate must utilize during trials. Under Article 1, Section 5, Clause 2, the Senate has the power to determine the Rules of its Proceedings. To that end, Thomas Jefferson, while Vice President, formulated the Senates impeachment trial procedures, which have subsequently been amended - but have largely remained intact ever since and were followed in President Clinton's impeachment trial.

Two U.S. Presidents have been impeached: Andrew Johnson and Bill Clinton. Both were acquitted at trial.

Primary Source. The Heritage Guide to the Constitution.

President Pro Tempore - Article 1, Section 3, Clause 5

"The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of the President of the United States."

Comment: This clause is designed to allow the Senate to maintain its legislative order by appointing a temporary presiding officer for when the Vice President is absent. This is similar to the House's appointment of the Speaker. In the beginning the Senate would elected the President Pro Tempore each time the Vice President was absent. Shortly there after (1792), John Adams began vacating the position prior to the end of the day so that another could be elected in the event he passed away or took over as President. Approximately 100 years later, the Senate began appointing the President Pro Tempore that would hold office until replaced.

While in office, the President Pro Tempore supervises the Senate, hands down procedural rulings, and often appoints younger Senator Members as substitutes in his stead to acquaint them with the rules and procedures of the Senate. The "other officers" includes, but is not limited to, the majority and minority leaders (who are in charge of directing legislation).

Primary Source. The Heritage Guide to the Constitution.

Vice President as Presiding Officer - Article 1, Section 3, Clause 4

"The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."


Comment: Article I of the Constitution creates the office of Vice President and assigns to it two legislative functions: to preside over the Senate and to vote in the Senate in case of ties. George Mason argued that allowing this violated the separation of powers structure of the constitution. However, Roger Sherman replied: "If the Vice President were not to be President of the Senate, he would be without employment."

Allowing the Vice President to (1) preside over the Senate and (2) vote in the Senate in case of ties - solved to issues. First, a definitive resolution would always be reached. Second, the representation of the states would remain equal; otherwise, if a Senator were to be chosen, then that State's representation would be increased.

Although the Constitution specifies that the Vice President “shall be President of the Senate,” it is silent regarding what that indeed entails. Early on, the Vice Presidents took their role seriously; however, today, under the rules and precedents of the Senate, presiding over the Senate involves simply recognizing Senators to speak in debate, maintaining order in the Senate, occasionally ruling on a question of parliamentary procedure, administering the oath of office to Senators, and making an appointment to a legislative entity based on the advice of party leaders. To that end, the Vice President rarely presides over the Senate.

Regarding casting tie-breaking votes, it can have great impact over the country where the Senators are evenly split. John Adams cast tie-breaking votes in the Senate 29 times. Richard B. Cheney cast tie-breaking votes 8 times and effectively gave a majority to the Republicans. There have been over 200 tie-breaking votes, with most of them occurring early in the republic's history.

Primary Source. The Heritage Guide to the Constitution.

Qualifications for Senators - Article 1, Section 3, Clause 3

"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen."

Comment: This section deals with the qualifications for becoming a member in the Senate. To that end, the Framers determined that the following three qualifications would apply: 1. one must be at least 30 years old (vs. 25 for the House), 2. one must be a United States citizen for 9 years (vs.7 for the House), 3. one must be an inhabitant of the state where he is chosen.

The Framers wanted the Senate to be calm and deliberate of thought and action. At first, some argued for a 14-year period of citizenship because it would take that long to learn the American system of laws. However, Madison, Franklin, and others opposed such a long requirement.

This provision has not been the subject of judicial review. However, as noted when we reviewed the House of Representatives qualifications, in Powell v. McCormack, the Court held that the Constitution specifies exactly three qualifications -- age, citizenship, and residency -- and that implies that there can be no more qualifications added by Congress.

In a subsequent holding, the Court ruled in United States Term Limits v. Thornton that the state may not impose its own qualifications either. Justice Stevens, writing for the majority, argued that the States can not impose additional qualifications because the Constitution was a creature of the People, and not of the States; and that the States did not retain any power under the 10th Amendment.

Primary Source. The Heritage Guide to the Constitution.

The Federalist No 62

The Federalist No 63

Senatorial Classes and Vacancies - Article 1, Section 3, Clause 2

"Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."

Comment: On April 6, 1789, the Senate reached a quorum. On May 13, the Senate then divided themselves into three (3) classes.  Senators were then separated into three geographically balanced classes. However, Senators from the same State were in different classes. To create the staggered terms of the Senate, three equal sized pieces of paper numbered 1, 2, and 3 rolled up and placed in a box. The Senator drawing "1" would end his term at the end of two years. The Senator drawing "2" would end his term at the end of the fourth year. And, the Senator drawing a "3," his term would end on the sixth year.


The last section of the clause grants the State's governor the authority to make Senate appointments in the event there was a vacancy and the legislature was not in session.


Primary Source. The Heritage Guide to the Constitution.


http://theconstitutionallawblog.blogspot.com

Senate - Article 1, Section 3, Clause 1

"The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote."

Note: Amended by the Seventeenth Amendment.

Comment: While the Framers created the House of Representatives to protect the "People's" interests; they created the Senate to represent and protect the interests of the States. To that end, each state was afforded two (2) Senators, regardless of that State's population, which provided equal representation to the smaller States so that they would be protected. The Senators for each state were elected by its legislature, who then served staggered six-year terms. The Framers believed that by having the terms staggered, and giving each Senator a vote, that the Senators would more closely reflect the political sentiment of the State at any given time. As a result of this bicameral system, the Constitution would end up requiring two independent sources to ratify legislation.

Article 1, Section 3 was amended by the Seventeenth Amendment. Several factors explain its ratification - e.g., from legislative deadlocks, to scandals brought on by charges of bribery in the election of a Senator, etc.. The Seventeenth Amendment was State ratified in less than eleven months by overwhelming numbers.  However, congressional approval came slow – i.e., eighty-six years later. During that time period, however, what actually happened was that the States started having non-binding primary (or "advisory") elections to select their Senators, and then the State legislators would promise to vote for that Senator.

In any event, by changing to a "direct" election, the amendment terribly altered the main mechanism used by the Framers to protect federalism. Remember, as originally designed, the Senators were elected and "re-elected" by the legislators, which preserved the loyalty of Senators to the States.


Primary Source. The Heritage Guide to the Constitution.


http://theconstitutionallawblog.blogspot.com