Making Constitutional Meaning: The Removal Debate and the Birth of Constitutional Essentialism

In one of its earliest debates, the first federal Congress divided over the question of whether the president could remove executive officers. Long neglected by historians, the episode has received ample attention from constitutional scholars who have interpreted it as a crucial contest over the scope of presidential power. However, the debate’s significance owes less to these implications than it does to the language of constitutional essentialism that it produced. In the aftermath of ratification, American politicians were still reckoning with what it meant to be subject to the authority of a supreme, written constitution and in so doing debated not only the meaning of specific constitutional clauses but more generally the kinds of interpretive practices that could legitimately accompany Americans’ governing document. The removal debate began because the Constitution, other than specifications for impeachment, was silent on removal. Some contended that, given this silence, nobody could remove. Most disagreed and as justification contended that Congress enjoyed discretion to fill the document’s silences. However, those who favored removal divided over who could remove: the president alone or in conjunction with the Senate. In waging this disagreement the two sides grounded their rival interpretations in two separate sources of authority: the ‘‘nature of things’’ and the original intent of the Constitution’s framers. In retreating from arguments built on congressional discretion in favor of ones premised on fixed constitutional meaning, politicians constructed a powerful language of constitutional essentialism that implied that the Constitution was equipped with unchangeable meaning.