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Maier delves into Constitution's origins, intentions in Killian lecture

The framers of the US Constitution -- which was never intended to be a final, unalterable document -- devoted little attention to spelling out how a chief executive should be removed from office, something which clearly affected impeachment proceedings two centuries later, said Professor Pauline R. Maier in last week's 27th annual Killian Lecture.

Dr. Maier, the William R. Kenan Jr. Professor in the history section, delivered her talk on April 6 in Wong Auditorium. She was introduced by Lotte Bailyn, the T. Wilson (1953) Professor in Management and chair of the Faculty. Professor Maier, who received the James R. Killian Jr. Faculty Achievement Award for 1998-99, spoke on "'High Crimes and Misdemeanors': Reflections on the Bonds between Past and Present."

"Professor Maier is the first historian to have this honor, and it is a tribute to her teaching and to her chairmanship of the department over nine years," said Professor Bailyn. She also read selected online reviews of Professor Maier's well-received recent book, American Scripture: Making the Declaration of Independence (Knopf).

In thanking the Killian Award Selection Committee, Professor Maier said, "I count among the great blessings of my life the privilege of keeping my head in the 18th century and my body at MIT. This has been a wonderfully supportive and congenial institution, full of people, like those I study, [who are] ready to invest their minds in the most challenging problems of our time. I take delight in being part of an engineering culture that's ready to recognize problems because it knows what to do with problems: solve them.

"Let me thank fellow members of the faculty for that enormous honor -- and acknowledge as well the great honor of being a member of this faculty," she said.

Professor Maier's goal in her lecture was to illuminate this year's impeachment proceedings of President Clinton in "new and interesting ways and perhaps begin making sense of them... in a broad historical context," she said.

As a historian (Professor Maier has been called an 'historian's historian'), she was guided in preparing her wide-ranging and enthusiastic talk on "high crimes and misdemeanors" by three provocative, even paradoxical questions: "Why are we so concerned with the ideas of the 'founders'? Should we be? What is the relevance of late 18th-century 'understandings' of the Constitution for Americans living two centuries later?"

First, she distinguished emphatically between lively "concern" for the ideas of the framers of the Constitution and a frozen state of worship for the documents enshrined in Washington, DC.

"In 1787, no sane man thought that the federal Constitution would last this long. It was a first try at creating a national government whose authority came directly from the people... Recent history suggested that most first tries don't last. That lesson was not lost on delegates... who quietly abandoned the pretension of founding a 'perpetual union.'

"They also consciously chose to state principles and procedures in general terms so they could more easily 'be accommodated to times and events.'"

A particular challenge for the founders, noted Professor Maier, lay in constructing the executive branch of the new government, since the "convention had few positive role models to follow." The issue of removing the chief executive received "about five minutes of debate," while the phrase "high crimes and misdemeanors," used in English impeachment proceedings since the 14th century, stuck.


Moving into issues of more recent days, Professor Maier said, "Unfortunately, the [Clinton] impeachment process tended to confuse the historical question with those over the President's guilt or innocence. It did so for a reason the founding generation failed to anticipate and, indeed, feared: the development of a party system. From their first emergence in the 1790s, parties played havoc with the convention's carefully crafted solutions to the problem of constructing a national executive... Then, in 1804, the 12th Amendment adjusted presidential election procedures for the existence of parties.

"But no amendment updated the impeachment procedures. And nowhere do party politics cause more havoc with a constitutional procedure today than with impeachments, and particularly presidential impeachments, which transform Congress from a legislative into a judicial body," Professor Maier asserted. She quoted Barney Frank's quip -- "unilateral bipartisanship" -- to denote the bullying type of havoc caused by the party system.

Thus, the witnesses, scholars, historians, lawyers and politicians who combed the Constitution for guidance on the term "high crimes and misdemeanors" didn't get the "simple answers to straightforward questions" they had hoped for, because they simply weren't there.

"Indeed, the framers consciously built a certain ambiguity into the Constitution, preferring 'general propositions' over specific provisions... There is, however, another reason why we return time and again to 1787: the debates in the constitutional convention serve as something of a technical manual on the federal government," said Professor Maier.


She then issued a challenge to the audience -- a roomful of citizens, after all, not much different from the founders themselves -- to consider the next step in the evolution of American political culture.

"Surely, this 'running of the experiment' revealed problems aplenty. Why then, has there been so little discussion of how better to assure, in a modern context, that 'impartial justice' the founders tried to establish?

"Surely, too, the Clinton impeachment case gave reason to reflect on the remoteness of Congress from the public whose views it was originally supposed to reflect and on how the President has become for most Americans the human face of government," she said.

Noting our reluctance to amend the Constitution -- "after adopting the first 10 amendments in two years, we enacted only 17 in the next 208 years" -- Professor Maier asked, "Is our reticence at odds with the 'original intent' of the founders that, as posterity gathered experience with the Constitution, it would update the document?"

Professor Maier gave a resounding conclusion to her hour-long lecture. "The question, I think, is whether we can keep the strength of that tradition while abandoning the mythologizing that John Adams and Thomas Jefferson found so out of keeping with the people they knew and the work of constitution-writing as they understood it. Maybe, after two centuries, we can acknowledge that the founders "deserve well of their country" not only because they left us a constitution better built than they knew, but because they had the great wisdom to understand the limits of their wisdom.

"Maybe, too, we can accept their affirmation of our capacity to carry on the experiment they began, and consciously accept their invitation to participate in a founding that never really ended, but remains, as it must, an ongoing act of creation."

A version of this article appeared in the April 14, 1999 issue of MIT Tech Talk (Volume 43, Number 26).

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