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Once again, the Demorats are abusing the power of impeachment for naked partisan purpose only this time the spectacle is worse since the object of their outrage and wrath no longer holds office.
I have already discussed the nature of impeachment [here] and see no point in repeating myself, pleasing as that may be. I would, however, like to expatiate briefly on the scope of impeachment.
As is well known by now, the Constitution gives the power of impeachment to the Commons and reserves trial of charge to the House of Lords. With respect to the latter, the Constitution provides,
Now sage pundits writing in august papers have told us that "America was the birthplace of modern democracy." Even more sage "legal experts" testified before Congress last year that America "invented" the principle that no man, including the President, is above the law. When the laughter in Great Britain dies down, we might observe that such pronouncements are completely and totally wrong. So wrong as to be classed as downright ignorant.
I will forgo discussing medieval law or the revival of Roman jurisprudence during the Renaissance. Suffice to say that in in recent modern times, the principle that the King was subject to the Law was pronounced by Lord Coke before James I to his face. The king "grew mightily wroth" and moved to strike Coke who "fell on all foures" before scurrying away to safety. Five years later Coke made the same announcement, this time with the backing of Parliament and the stage was set for the English Civil War.
The concluding chapter of that century long struggle was the Glorious Revolution of 1688 which deposed James II and established Parliamentary supremacy. In what, precisely, that supremacy consisted called for a little tempering given the fact that sovereignty was still thought to be embodied in the King. The characteristically English way of expressing the matter was to say that the Sovereign could only act with the consent of Parliament. This Fusion of Powers is expressed in the phrase "The King (or Queen) in Parliament" which signifies the totality of sovereignty shared and participated in jointly by the monarch and both houses of Parliament in the understanding that Parliament is the absolute and supreme legislative power but that no act can become law without the assent of the Monarch who in turn can only act with the consent of Parliament. If this sounds circular, it is; but it has worked reasonably well for 332 years.
The "Founding Fathers" were steeped and versed in this constitutional "Settlement" (as it was called). Anyone (even a legal scholar) who bothers to read them can see that the Bill of Rights of 1689 and the Act of Settlement of 1701 provided the rough drafts of the U.S. Constitution. Anyone who does not read the Constitution in the light of its historical English antecedents is playing the sola scriptura fool
The Constitution of course abolished hereditary monarchy. But it established a presidency with monarchical powers -- in effect, a pro tem elected monarchy. But what to do when this new monarch got out of hand, the way James II had done?
As Hamilton observed in Federalist Paper No. 69, " The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution." That indeed had been the case. The only way to remove James II was through a Glorious Revolution which somewhat more than half of the country supported. But since the American Monarch was elected and had no possible claim of Divine Right, the expedient offered for his removal from office was by means of impeachment, viz.: "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.
Now, it must be said that, as pamphleteer, Hamilton was being a tad tongue in cheek when he implied that the British monarch could only be removed by a revolution. After running James II out of country Parliament invited William and Mary to assume the throne; and when Queen Anne, Mary's sister and James II's youngest daughter, died, Parliament invited "the Hanoverians" to assume the throne, on which they have sat to this day. Since 1688, England has never had to "impeach a monarch" but should the need arise, there could be no doubt whatsoever that Parliament could do so on the principle that who grants can revoke. More precisely, the 1701 Act of Settlement established the qualifications, by lineage and religion, of all future British monarchs. The act has been on auto-pilot since then. But no one doubts the power of Parliament to alter the terms of succession provided for in the Act. Nor does anyone doubt the power of Parliament to enlarge or restrict the prerogatives, such as remain, of the monarch. Writing in 1789, Hamilton was certainly aware of English constitutional history. Were Parliament to seek to remove a monarch it would produce an political upheaval but removal would not require what the word "revolution" suggests.
In all events, the American Constitution made the matter simple and straightforward. Our pro tem, elected monarch could be removed from office by means of Congressional impeachment and conviction. But to say as much is to say that "impeachment" has to be understood as an adaptation of the principle established by the Glorious Revolution; i.e. the legitimate head of state can be removed from office when there is a national consent that he is abusing his power and trust, albeit under colour of law.
Again, I have discussed the matter elsewhere; but to understand what was meant by "high crimes and misdemeanors" one again has to turn to the reign of James II, otherwise known as James-the-Envelope Pusher. From the beginning of his reign, that monarch was pushing the limits of his prerogatives and testing the limits of the nation's tolerance. A lot of what he did fell into the category of "obnoxious and annoying things kings always do" -- high handed running over roughshod stuff.
But one matter in particular irked most (but not all) of the country: James' announced Catholicism. There was no law against his being Catholic, but people preferred he do it in the closet especially given the fact that he was supposed to be the temporal head of the English Church. Well James was old and childless and when he died the throne would pass his Protestant sister Mary. So the country grit its teeth and waited.
But then James had a son whom, he announced, would be raised as a Catholic. That was a high misdemeanor the country could not tolerate, because it signaled the end of the Reformation in England. Nor was it only a matter of religion. Behind the religious issue was James II's friendship with France and his preference for the centralized French mode of governance. He was also allowing too many Jesuits into the country to meddle in All Things English. He was, in short, legally and under color of law subverting the General Understanding which had been reached as to how things ought to be done and what the country was about.
The debates at the Constitutional Convention reveal that there was some question as to whether impeachment applied to lesser and more ordinary forms of malfeasance. But the fact the participants were arguing over lesser points does not mean that they did not have the bigger lesson in mind. If they didn't talk about James II and the Glorious Revolution, it was because they didn't need to. It was understood; and not only as a matter of history in the Mother Country. One of James II's initiatives was the so-called "Andros Plan" which aimed to centralize administration of the American Colonies. The plan was hated by the Colonists for obvious reasons and led to American's small but significant participation in the Glorious Revolution. To wit:
Oh the Ironies of History!!!
Whether or not our Founding Father's were sympathetic to rioting insurrectionists taking over the seat of government, they certainly had not forgotten misbehaving king's abusing of government.
Two conclusions flow from this historical background: (1) "impeachment" extends no further than removal from office and (2) "impeachment" is not to be confused with or used as the equivalent of a parliamentary vote of no-confidence.
The first conclusion ought to be obvious. The Constitution expressly states: impeachment "shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, ..." The provision does not read "... or to disqualification...etc." The conjunction "and" signifies that "disqualification" is an adjunct of "removal from office." That "disqualification" is merely a derivative (and rather obvious) consequence of "removal" is further shown by the fact that Hamilton doesn't even bother to mention "disqualification." He refers only to removal from office. The reason Hamilton only mentions "removal" is that his thinking was infused by the history I have just outlined. Once James II was run out of town, his further "qualification" for holding any office was more than moot.
The second conclusion requires some further explanation. Under the "Westminster System" the administration of government is handled by a Prime Minister. If and when the opposition to the government attains a majority in Parliament, the government can be "toppled" by a vote of no-confidence. A change of administration then takes place.
In the American system the position of head of state and head of government ("executive administration") are fused. Thus, if the President could be removed from office on account of mere political opposition to his policies "impeachment" would become the equivalent of a "vote of no-confidence."
The Constitution gives the power of impeachment to the House (the American "Commons") on a mere numerical majority. But the Constitution prevents that from becoming a vote of no confidence by the fact that a trial is required in the Senate (our Lords). Here again, a mere majority does not suffice to convict, but rather requires two thirds of those present. The phrase "of those present" provides a certain amount of wiggle room but the overall thrust and intent of the provision is that "conviction on articles of impeachment" is not the equivalent of a vote of "no-confidence."
That the impeachment process was viewed as something transcending ordinary partisan politics is also shown by the fact that the consequence is mere removal from office. The party in power remains in power. The Vice President assumes the presidency and the majorities in the House and Senate remain unaffected. No new elections are called for.
In my view nothing could be more clear than that impeachment was aimed solely at removing the head of state from office when there was a substantial national consensus that he was in some very serious manner subverting the Constitution, even if he was doing so under colour of law or in the exercise of an asserted prerogative "in the manner of James II."
That is an important constitutional device and it ought to be preserved for what it was intended. Instead, Nancy Pelosi and the Democrats are abusing the process to exact personal revenge and for the sake of partisan advantage. In this latter respect they are tacitly joined by a number of Republicans who seen political advantage in neutralizing the hold Trump holds on their party.
I have already discussed the nature of impeachment [here] and see no point in repeating myself, pleasing as that may be. I would, however, like to expatiate briefly on the scope of impeachment.
As is well known by now, the Constitution gives the power of impeachment to the Commons and reserves trial of charge to the House of Lords. With respect to the latter, the Constitution provides,
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.
Now sage pundits writing in august papers have told us that "America was the birthplace of modern democracy." Even more sage "legal experts" testified before Congress last year that America "invented" the principle that no man, including the President, is above the law. When the laughter in Great Britain dies down, we might observe that such pronouncements are completely and totally wrong. So wrong as to be classed as downright ignorant.
I will forgo discussing medieval law or the revival of Roman jurisprudence during the Renaissance. Suffice to say that in in recent modern times, the principle that the King was subject to the Law was pronounced by Lord Coke before James I to his face. The king "grew mightily wroth" and moved to strike Coke who "fell on all foures" before scurrying away to safety. Five years later Coke made the same announcement, this time with the backing of Parliament and the stage was set for the English Civil War.
The concluding chapter of that century long struggle was the Glorious Revolution of 1688 which deposed James II and established Parliamentary supremacy. In what, precisely, that supremacy consisted called for a little tempering given the fact that sovereignty was still thought to be embodied in the King. The characteristically English way of expressing the matter was to say that the Sovereign could only act with the consent of Parliament. This Fusion of Powers is expressed in the phrase "The King (or Queen) in Parliament" which signifies the totality of sovereignty shared and participated in jointly by the monarch and both houses of Parliament in the understanding that Parliament is the absolute and supreme legislative power but that no act can become law without the assent of the Monarch who in turn can only act with the consent of Parliament. If this sounds circular, it is; but it has worked reasonably well for 332 years.
The "Founding Fathers" were steeped and versed in this constitutional "Settlement" (as it was called). Anyone (even a legal scholar) who bothers to read them can see that the Bill of Rights of 1689 and the Act of Settlement of 1701 provided the rough drafts of the U.S. Constitution. Anyone who does not read the Constitution in the light of its historical English antecedents is playing the sola scriptura fool
The Constitution of course abolished hereditary monarchy. But it established a presidency with monarchical powers -- in effect, a pro tem elected monarchy. But what to do when this new monarch got out of hand, the way James II had done?
As Hamilton observed in Federalist Paper No. 69, " The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution." That indeed had been the case. The only way to remove James II was through a Glorious Revolution which somewhat more than half of the country supported. But since the American Monarch was elected and had no possible claim of Divine Right, the expedient offered for his removal from office was by means of impeachment, viz.: "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.
Now, it must be said that, as pamphleteer, Hamilton was being a tad tongue in cheek when he implied that the British monarch could only be removed by a revolution. After running James II out of country Parliament invited William and Mary to assume the throne; and when Queen Anne, Mary's sister and James II's youngest daughter, died, Parliament invited "the Hanoverians" to assume the throne, on which they have sat to this day. Since 1688, England has never had to "impeach a monarch" but should the need arise, there could be no doubt whatsoever that Parliament could do so on the principle that who grants can revoke. More precisely, the 1701 Act of Settlement established the qualifications, by lineage and religion, of all future British monarchs. The act has been on auto-pilot since then. But no one doubts the power of Parliament to alter the terms of succession provided for in the Act. Nor does anyone doubt the power of Parliament to enlarge or restrict the prerogatives, such as remain, of the monarch. Writing in 1789, Hamilton was certainly aware of English constitutional history. Were Parliament to seek to remove a monarch it would produce an political upheaval but removal would not require what the word "revolution" suggests.
In all events, the American Constitution made the matter simple and straightforward. Our pro tem, elected monarch could be removed from office by means of Congressional impeachment and conviction. But to say as much is to say that "impeachment" has to be understood as an adaptation of the principle established by the Glorious Revolution; i.e. the legitimate head of state can be removed from office when there is a national consent that he is abusing his power and trust, albeit under colour of law.
Again, I have discussed the matter elsewhere; but to understand what was meant by "high crimes and misdemeanors" one again has to turn to the reign of James II, otherwise known as James-the-Envelope Pusher. From the beginning of his reign, that monarch was pushing the limits of his prerogatives and testing the limits of the nation's tolerance. A lot of what he did fell into the category of "obnoxious and annoying things kings always do" -- high handed running over roughshod stuff.
But one matter in particular irked most (but not all) of the country: James' announced Catholicism. There was no law against his being Catholic, but people preferred he do it in the closet especially given the fact that he was supposed to be the temporal head of the English Church. Well James was old and childless and when he died the throne would pass his Protestant sister Mary. So the country grit its teeth and waited.
But then James had a son whom, he announced, would be raised as a Catholic. That was a high misdemeanor the country could not tolerate, because it signaled the end of the Reformation in England. Nor was it only a matter of religion. Behind the religious issue was James II's friendship with France and his preference for the centralized French mode of governance. He was also allowing too many Jesuits into the country to meddle in All Things English. He was, in short, legally and under color of law subverting the General Understanding which had been reached as to how things ought to be done and what the country was about.
The debates at the Constitutional Convention reveal that there was some question as to whether impeachment applied to lesser and more ordinary forms of malfeasance. But the fact the participants were arguing over lesser points does not mean that they did not have the bigger lesson in mind. If they didn't talk about James II and the Glorious Revolution, it was because they didn't need to. It was understood; and not only as a matter of history in the Mother Country. One of James II's initiatives was the so-called "Andros Plan" which aimed to centralize administration of the American Colonies. The plan was hated by the Colonists for obvious reasons and led to American's small but significant participation in the Glorious Revolution. To wit:
"The 1689 Boston revolt was a popular uprising on April 18, 1689 against the rule of Sir Edmund Andros, the governor of the Dominion of New England. A well-organized "mob" of provincial militia and citizens formed in the town of Boston, the capital of the dominion, and arrested dominion officials. Members of the Church of England were also taken into custody if they were believed to sympathize with the administration of the dominion. Neither faction sustained casualties during the revolt. Leaders of the former Massachusetts Bay Colony then reclaimed control of the government. In other colonies, members of governments displaced by the dominion were returned to power." (Wiki)
Oh the Ironies of History!!!
Whether or not our Founding Father's were sympathetic to rioting insurrectionists taking over the seat of government, they certainly had not forgotten misbehaving king's abusing of government.
Two conclusions flow from this historical background: (1) "impeachment" extends no further than removal from office and (2) "impeachment" is not to be confused with or used as the equivalent of a parliamentary vote of no-confidence.
The first conclusion ought to be obvious. The Constitution expressly states: impeachment "shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, ..." The provision does not read "... or to disqualification...etc." The conjunction "and" signifies that "disqualification" is an adjunct of "removal from office." That "disqualification" is merely a derivative (and rather obvious) consequence of "removal" is further shown by the fact that Hamilton doesn't even bother to mention "disqualification." He refers only to removal from office. The reason Hamilton only mentions "removal" is that his thinking was infused by the history I have just outlined. Once James II was run out of town, his further "qualification" for holding any office was more than moot.
The second conclusion requires some further explanation. Under the "Westminster System" the administration of government is handled by a Prime Minister. If and when the opposition to the government attains a majority in Parliament, the government can be "toppled" by a vote of no-confidence. A change of administration then takes place.
In the American system the position of head of state and head of government ("executive administration") are fused. Thus, if the President could be removed from office on account of mere political opposition to his policies "impeachment" would become the equivalent of a "vote of no-confidence."
The Constitution gives the power of impeachment to the House (the American "Commons") on a mere numerical majority. But the Constitution prevents that from becoming a vote of no confidence by the fact that a trial is required in the Senate (our Lords). Here again, a mere majority does not suffice to convict, but rather requires two thirds of those present. The phrase "of those present" provides a certain amount of wiggle room but the overall thrust and intent of the provision is that "conviction on articles of impeachment" is not the equivalent of a vote of "no-confidence."
That the impeachment process was viewed as something transcending ordinary partisan politics is also shown by the fact that the consequence is mere removal from office. The party in power remains in power. The Vice President assumes the presidency and the majorities in the House and Senate remain unaffected. No new elections are called for.
In my view nothing could be more clear than that impeachment was aimed solely at removing the head of state from office when there was a substantial national consensus that he was in some very serious manner subverting the Constitution, even if he was doing so under colour of law or in the exercise of an asserted prerogative "in the manner of James II."
That is an important constitutional device and it ought to be preserved for what it was intended. Instead, Nancy Pelosi and the Democrats are abusing the process to exact personal revenge and for the sake of partisan advantage. In this latter respect they are tacitly joined by a number of Republicans who seen political advantage in neutralizing the hold Trump holds on their party.
They rushed the articles of impeach through without any investigation or hearings. Even the language of the article was vague and uncertain. What Pelosicrats wanted was to get the impeachment started while Trump was in office so that they could then claim that, Oh gee, the ball was pitched, we'll now just have to try him while he is out office. Meritless. The process "shall not extend further than removal." Since Trump is no longer capable of being "removed" the process has reached its extent.
To be fair, abuse of the process began with the Republicans when they impeached President Clinton over nothing of any constitutional significance. Now the chickens they spawned are coming home to roost. But they are bad chickens all the same. The use of impeachment to embarrass, stymy, forestall, blackmail the President and his party's agenda will serve only to turn partisan politics into ongoing political civil war. The political life of the country should not be allowed to degenerate to such a state of affairs, no matter how much Nancy hates Donald, no matter how much Mitch wants Trump neutralized. Once Trump is out of office, the issue of impeachment and conviction are moot.
This is not to say that Trump should not be neutralized. It is only to say that the way to do so is by the way the Constitution allows. The same provision that provides for "removal" from office also provides for criminal prosecution once out of office. That is what should done upon a diligent and thorough investigation and with all the attendant safeguards of a public jury trial. That much would at least have judicial credibility, instead of the tawdry and sordid affair unprincipled politicians are pursuing.
©wcg 2021
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