Impeachment and the "American Experiment"
The Constitution launched what George Washington called the "American experiment" in self-government. No one knew how it would turn out. No one still does. In arguing for its ratification in the Federalist Papers, Alexander Hamilton challenged Americans: "it seems to have been reserved to the people of this country," he said, "by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." It is a challenge we still face.
The American creed is that we are "a government of laws and not men." That phrase, written by John Adams into the constitution of the new state of Massachusetts in 1779, is a principle the framers of the U.S. Constitution hoped would guide the nation. But they understood human nature - how selfish people, including those who govern us, could seek their own ends at the cost of justice.
They understood that an unrestrained Chief Executive was a threat to liberty, that periodic elections might not be enough to turn dangerous rulers out of power. Thus, they created safeguards. As James Madison put it in Federalist #51: "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
We are now engaged in one of those "auxiliary precautions," the process of presidential impeachment. It has been used just three previous times. It is a step to be taken with caution and executed with care. In arguing for it at the Constitutional Convention, George Mason said "No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?"
The grounds for impeachment are spelled out in a Constitutional articulation that is less than articulate: "Treason, Bribery, or other high Crimes and Misdemeanors." It is essential to note that a president need not be accused of breaking a law to be impeached. The standard is at the same time less legal and more substantial. Impeachment rests on whether a president has violated his constitutional oath to faithfully execute the laws and preserve, protect, and defend the Constitution. As Hamilton said in Federalist #65, impeachment is for "offenses which proceed from the misconduct of public men . . . from the abuse or violation of some public trust."
While similar to a legal proceeding, in that the House "indicts" and the Senate conducts a trial, it is a decidedly political process. The jury is not peers but politicians. A unanimous verdict is not required. The courtroom gallery is public opinion. The process is thus filled with partisan conflict. Hamilton again: "The prosecution ... will seldom fail to agitate the passions of the whole community and to divide it into parties more or less friendly or inimical to the accused."
Including the current impeachment process, three of the four times it has been used in our history have been in the last 45 years. This may be due to the growth of presidential power and thus concerns about its misuse. At the same time, Congress has been willing to cede power to the president. This has delayed but not eliminated the need for it to defend its own Constitutional relevance. How it does so in the coming months may well decide the future of the American Experiment.
America is at fever pitch. Many members of the House and Senate seem already to have come to partisan conclusions.. Many in the public, excited by endless partisan coverage, seem to have reached a judgment before all the evidence is in. Justice, fairness, and our future impel us to calm down and slow down. This requires the House to put nothing in an article of impeachment that does not meet the Constitutional test. It will require Senators, should a trial ensue, to remember the oath they will swear before sitting in judgment: "I will do impartial justice according to the Constitution and laws: So help me God.’’ It is an oath that puts country above party and their own electability.
As the delegates left Independence Hall at the conclusion of the Constitutional Convention, a woman asked Benjamin Franklin what they had created. His reply: "A republic, madam, if you can keep it." What Franklin said just before is equally important. In a concluding speech to the delegates, he acknowledged the Constitution was not perfect. But, he said, it would be "a blessing to the people if well administered, and . . . is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other."
The next few months will test the ability of Congress to "administer" the government. It will test the moral courage of every representative and senator. It will require the president to respect the Constitutional process and help Americans honor the one document that binds them as a nation. It will test the ability of every citizen to use their reason, to avoid being corrupted by party appeals and conspiracy theories. These are tests that Franklin hoped we would pass.
Photo Credit: Louis Velasquez
