Records of the 1873 convention tell the story
To understand how and why this little-understood clause was added to the Pennsylvania constitution in 1873 we must read the records of the convention.
Lucky for us, a rather full record of the 1872-3 constitutional convention was placed online by Duquesne University and can be read here.
Duquesne not only posts the voluminous journals of the convention but also, of interest to us here, nine complete volumes of the debates of the convention, which explain the reasoning for, and debates surrounding, the clause.
The constitutional convention was convened in November 1872 at the Lutheran Church in Harrisburg. It ran until November 3, 1873. Its work was ratified by voters on December 16, 1873, and took effect January 1, 1874.
Among the 27 standing committees at the convention was the six-member committee that drafted the clause in question: the Impeachment and Removal from Office Committee.
When reading the records of this committee and its convention, we must keep in mind that we’re looking back to a time not even a decade removed from the end of the American Civil War.
Issues debated at the 1872-3 convention included such controversial topics of the day as “female suffrage” (women wouldn’t be given the vote in the U.S. for almost another half century, until a constitutional amendment was ratified by the states in 1920); whether divorce should be legal in Pennsylvania; and whether “professional gamblers” should be allowed to hold office.
So these are just some of the social mores from another time and place that today’s Pennsylvania state senators are attempting to shoehorn, inappropriately, into today’s society.
How far removed was this 1872 convention from today’s society?
Without a single exception, state office holders are described in the 1872-3 convention papers with the masculine pronoun “he”.
Convention delegates in 1872 not only would be floored to discover that the state attorney general in 2015 is a woman, but also that she was elected, not appointed.
And they’d certainly also be shocked that today’s senators would attempt to remove the second highest elected state official — who is vested with far more powers than the lieutenant governor — from office without a proper impeachment proceeding, as was their clear intent for such “high” office holders in 1872.
Wording over “direct removal” clause in 1872
Records from the 1872-3 convention make clear that the “direct removal” clause was just as controversial then as it is today.
What’s striking is that every word of the proposed clause was debated keenly, and parsed for meaning.
The convention’s standing committee on Impeachment and Removal from Office ended up drafting four sections, some of which carried over from the 1837 state constitution.
We must read all four sections to understand what the committee did, and why.
The 1872-3 sections read:
“SECTION 1. The House of Representatives shall have the sole power of impeaching.
“SECTION 2. All impeachments shall be tried by the Senate. When sitting for that purpose the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the members present.
“SECTION 3. The Governor, and all other civil officers under this Commonwealth, shall be liable to impeachment for any misdemeanor in office; but judgment in such cases shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit under this Commonwealth; the party, whether convicted or acquitted, shall nevertheless be liable to indictment, trial, judgment and punishment, according to law.
“SECTION 4. All officers shall hold their offices only on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office, or of any infamous crime. Appointed civil officers, other than judges of the courts of record and the Superintendent of Public Instruction, may be removed at the pleasure of the power by which they shall have been appointed. All officers elected by the people, except Governor, Lieutenant Governor, members of the General Assembly, and judges of the courts of record learned in the law, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.
In turn, for the most part, with only minor changes of wording, these constitutional sections from 1873 were carried over to the state’s present-day constitution, drafted in the 1960s, without much thought or alteration. (The word “impeaching” used in Section 1 in 1873 reads “impeachment” today, and so on.)
To use a modern-day computer analogy, it would be as if a flawed operating system, bugs and all, were simply moved to a modern operating system, without thought or concern for changes shown necessary by fault or time.
In the century or so before the 1872 convention, impeachment, particularly of judges, was a somewhat common occurrence in Pennsylvania.
With this in mind, the convention’s standing committee on Impeachment and Removal from Office in 1872 attempted to accomplish several things.
In their work, they wanted to bring the impeachment of county district court and appellate judges into “harmony” and consistency with the removal of other state office holders. (There was another standing Judiciary Committee whose language on judicial impeachments they wanted to “harmonize” with their own sections. That’s why these “high” judges of “courts of record” are specifically mentioned and treated separately, as opposed to the myriad of local justices of the peace, whose court proceedings are not recorded.)
The first three sections, and the first line of Section 4 (“All officers shall hold their offices only on the condition that they behave themselves well while in office”) sailed through the 1872-3 convention with nary a challenge.
But the committee also searched for a means to quickly remove from office the legions of “low level” state officials, such as the hundreds of local aldermen and justices of the peace, without needlessly tying up both houses of the legislature in lengthy impeachment proceedings to fry these small fish.
The last two lines of Section 4, concerning the removal of appointed and elected officials, proved to be a minefield for the 1872-3 convention, with many challenges and suggested changes in wording.
Obviously, the convention was told, you’d need a means to remove an appointed office holder, such as a cabinet official, less they presume they were appointed for life.
But just as obviously, you didn’t want the state Senate to summarily remove the governor’s appointed secretary of state, for example. Nor did you want to give the governor power to remove the House of Representative’s pick for sergeant of arms.
So the third line of Section 4 reads: “Appointed officers may be removed at the pleasure of the power by which they are appointed.”
This was where, in 1872, the state attorney general came in: the attorney general at the time was appointed by the governor, and so, back then, could only be removed by the governor, unless impeached, or found guilty of a crime.
In fact, at the convention, the problems associated with an appointed attorney general were considered.
The section on the appointment of the attorney general reads:
“(The governor) shall nominate, and by and with the advice and consent of two-thirds of all the members of the Senate, appoint a Secretary of the Commonwealth and an Attorney General during pleasure, and such other officers of the Commonwealth as he is or may be authorized by law to appoint.”
So the secretary of state and the attorney general were, by specific mention, the two most important appointments made by the governor.
The importance, and inherent problems, of the appointment of the attorney general were not lost on convention delegates in 1872.
A minority report to the convention suggested the attorney general be elected, for reasons pertinent and prescient today:
“If he were exclusively the legal advisor to the governor,” the report reads, “it would be proper and right that he should be appointed by the Chief Executive officer, but as he is the law officer of the Commonwealth and, as such, is required to give his opinion on all legal questions affecting the interests of the people of the State … it is believed that his election by the people would place him in as position of greater independence of thought and action, than if he held his office upon any uncertain tenure.
“In times of political excitement, when grave constitutional questions require deliberate consideration, and when the Governor would desire to be sustained in his views, which might be wholly of a partisan character, a difference of opinion between him and the Attorney General might result in the removal of the latter, that his place be filled by one more pliable and less contentious in the performance of his duties.
“The Attorney General, in the discharge of his duties as to constitutional questions arising from the power of the Legislature … which might conflict with the rights and interests of the people, should not be restrained or influenced by partisan sympathy, or the power of removal from office.
“It may happen too, that partisan zeal and activity, rather than fitness and honesty, may prompt the dispensation of patronage; and combinations of factions, operating as well in the concentration of power in nominating conventions, as in the popular sentiment, may control appointments prejudicial to the general welfare.” (See Debates Vol. 2, page 350.)
Legislators and voters wouldn’t accept this recommendation that the attorney general be elected at large for more than a century. But when the constitution was amended in the late 1970s to provide for an elected AG, the century old rules of removal of low-level elected officials would still be in place.
Not only did lawmakers carry these antiquated rules over in the constitutional convention of the 1960s, but they also overlooked them again when they made the office of attorney general elective in the late 1970s.
The importance of these oversights becomes apparent when one reads the debates of the convention of 1872-3, and the meaning and intent of the last line of Section 4: “Elected officers, other than Governor, Lieutenant Governor, members of the General Assembly, and judges of courts of record, shall be removed by the Governor, for reasonable cause, on the address of two-thirds of the senate.”
Simply put, when the attorney general became an elected officer, he (or she) was no longer covered by the third sentence, providing for an appointee to be removed at the pleasure of the governor.
An elected attorney general certainly would have been added by 1872 convention delegates to those “high” offices, including the “Governor, Lieutenant Governor, members of the General Assembly, and judges of courts of record” that could not be removed by direct address, but only by impeachment.
We know this because of the contentious debate surrounding the fourth sentence, the direct removal clause, and the passion this new means of removal stirred in the 1872-3 convention.
‘Dangerous power of removal by a single house’
Delegates in 1872 grappled with the problem of how to remove from office legions of low-level office holders — hundreds or perhaps thousands of low-level state office holders like local justices of the peace, inspectors (there were actually tree bark inspectors), tax collectors, and aldermen — without tying up both houses of the legislature in full-blown impeachment proceedings.
“It was thought … that there was a very large number of elected officers whose fault would consist in incompetency rather in anything else. The faults likely to be attributed to them are, of course, very difficult to define, and it was thought best not to throw too much difficulty in the way of their removal,” the convention was told by delegate George Biddle, chairman of the removal committee. (See Volume 3, page 225.)
These officers of the lower grade would come to include, for reasons we’ll see later, elected officials all the way up to the state treasurer and the auditor general. It wasn’t simply about “row officers” as we would call them today.
“Other officers of a higher grade are not to be removed, except upon impeachment or address of both Houses of the Legislature, two-thirds of each house consenting,” delegate William Darlington told the convention (see Volume 3, page 226.)
Even so, delegate Wayne MacVeagh, of Dauphin and Lebanon Counties, offered a prescient warning to today’s Pennsylvanians when he told the convention that limiting removal of elected officers to a single legislative body, without a full and fair impeachment trial in both houses, “seems to me like a very dangerous power… (T)here may come of popular excitement, times of unjust prejudice, when the whole power of changing the elective officers of this state will rest in two-thirds of your Senate, without any trial, without any hearing, without any opportunity for defense.” (Volume 3, page 225.)
“It is not unusual for one political party to have two-thirds of the Senate,” MacVeagh went on. “You cannot tell that the political power of the Senate will always be as evenly balanced as it has been heretofore, and it seems to me that to allow a mere numerical majority of two-thirds of that body to say that certain persons who have been elected and commissioned to hold these offices shall vacate them, and that they shall be turned out without any trial or judgment in any court of law … is putting a dangerous power in their hands.”
The integrity of these people in our state government at this time in history is so obviously compromised on a wide scale, they are surely going to attempt the same pretzel logic they have used to deny due process, for the last 50 years. And the unaffected public will just continue to concern themselves with football and dinner reservations. The Greatest Generation created what will become to be known as the Self Absorbed Generation.