Impeachment = reform of our antique political system

by Fabius Maximus

Summary: For a minute forget the personalities and politics of Trump vs. Democrats, and look at this as a historical evolution. Impeaching Trump is a step towards reforming America’s 18th-century constitutional regime, making it more like modern parliamentary systems. The occasional impeachment of Presidents would make Congress into the power center the Founders intended it to be – and stop the growth of an imperial presidency.

Impeachment buttons

 

In the early 1980s Bruce Ackerman (Prof Law, Yale) studied the process of constitutional change in America. He found an informal method of evolution other than the formal processes specified in the Constitution. He called this “higher lawmaking.” After 230 years of higher lawmaking, America’s political regime bears little resemblance to the Founders’ design. Presidents’ actions have hammered our government into a new form.

“This process is slow, normally taking hundreds of years. But occasionally political evolution leaps forward.”
— A slight tweak of Professor Xavier’s words from the title sequence of the film X-men (2000).

On 2 March 1781, the Republic version 1.0 was born, as Maryland ratified the Articles of Confederation, making it the basis of the revolutionary government.

On 21 June 1788 version 2.0 of the Republic was born, as New Hampshire ratified the Constitution — replacing the Articles (ignoring the Articles provisions for amendment).

On 9 April 1865 General Lee surrendered, ending the 4 year long birth throes of version 2.1 of the Republic.

On 2 September 1945 the Empire of Japan surrendered, ending the 12 year long birth throes of version 2.2 of the Republic (the New Deal and WWII mobilization).

On 11 September 2011 al Qaeda attacked America, giving Bush Jr the opportunity to initiate massive changes in US domestic and foreign policy. Obama ratified and expanded these changes, taking two giant steps beyond Bush’s.

  • Obama explicitly authorized assassinations (his “kill list”). He then took a giant step towards tyranny by authorizing the assassination of a US citizen without trial or even warrant. See the details here. This violated not only American law, but also Magna Carta. This might be the most serious Presidential “innovation” in our history. This was an obvious basis for impeachment.
  • Obama explicitly broke the Constitution by not submitting the Paris Agreement for Senate approval. No other democracy, no other developed nation, no other major nation, allowed one person to commit it to such a massive undertaking. This might be the largest Presidential “innovation” in our history. See the details of this sad story.

As with the previous transitions, the magnitude of these changes will become obvious only slowly. This might be the largest transformation of all, perhaps ending with America 2.3. If other presidents build upon them, we might have America 3.0.

Each of these actions bent the Constitution. The result was a massive expansion of presidential power, beyond anything imagined by the Founders. Eventually a President will take one step too far – bending the Constitution until it breaks.

The American people have shown themselves willing to accept these incremental expansions of presidential power. Frogs jump from a pan of warming water before it boils; people are not that smart – and will tolerate slow changes that produce awful results. Nor do elections restrain the discretionary exercise of presidential power. A president can do a lot of damage in four years (as President Buchanan proved). That leaves Congress’ power of impeachment as the outer boundary to Presidential power.

Why we should worry.

Much of America’s social change since WWII results from elites’ recognition that they can break the informal norms that govern their behavior. Doctors can practice medicine as a business and become rich. CEOs can arrange corporations to pay themselves fantastic sums and so become plutocrats. Elected representatives can arrange to become almost permanent fixtures, and retire wealthy. All of these changes seemed impossible before they happened. Then each group realized that the social norms that constrained them were just paper shackles.

Slowly presidents are realizing that too are constrained only by paper shackles. Bush Jr. (or perhaps VP Cheney) realized that, and exploited the president’s power to radically change America.

Time for structural reform: impeachment.

The Democrats have given 86 reasons to impeach Trump, starting on inaugural day. Some are serious and some imaginary, but none are as significant as Obama’s violations of the Constitution. The obvious reason to impeach Trump in his last year of office is to influence the 2020 election. They have taken the second step to making impeachment – and trial in the Senate – a purely political joust. The GOP’s impeachment of Clinton was the first attempt. The next will be even easier. Eventually an attempt will succeed. After that, presidents will be removed if they lose the confidence of Congress. This would make America’s governmental structure similar to the parliamentary system used by almost all other republics (being smart, few nations have copied America’s).

To better understand this, let’s turn to someone from a nation with a longer history. He sees the Constitution more clearly because distance gives perspective and allows a dispassionate analysis. Baranger shows that we can interpret the Constitution’s 175 words describing the impeachment process in many ways. They give Congress a powerful stick to use against presidents. He explains that purely political impeachment could restore the lost balance to our political system. A new kind of balance.

Impeachment clauses and the different meanings
of ‘constitution’ in the United States of America

By Denis Baranger.
From Responsibility of the Head of State (La responsabilité du chef de l’État).
Volume 12 of the Colloques Collection (October 2009).
Slightly paraphrased for clarity. Links added.

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Interpreting the impeachment clauses.

In the 1787 Constitution, lawyers identify a series of provisions known as ‘impeachment clauses’ {4 of them, listed here}. These include Section 4 of Article II of the Constitution with which it is customary to begin. This text provides that ‘The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other high Crimes and Misdemeanors’.

The best starting point is observing that the Constitution creates a removal procedure without specifying whether it is ‘criminal’, ‘political’ or whatever else. The constitution is silent about the nature of the procedure. …I will outline three series of problems of interpretation posed by the impeachment clauses: (1) Who can be subjected to impeachment? (2) To what extent and in what way does the Constitution determine the behaviour of those who intend to bring an accusation? (3) What does ‘removal’ mean? …

{The answers} cannot be deduced from the impeachment clauses themselves, but arise from a sort of interpretive convention. Such conventions are very common in impeachment law. It might even be said that this law is paved exclusively either with questions for which there are no answers or with answers consisting only in stating such constructive conventions. Controversy has arisen over just about every possible question, with each party being able to assert reasonable arguments. …

There seems to {agreement} that impeachable acts are limited to {offenses} of criminal law …Except for ‘Treason’, which is defined elsewhere in the Constitution …there is no principle of strict definition of offences. …the founding fathers did not grant an unlimited power to impeach and condemn, but a limited one. …We cite Madison’s criticism of Mason’s proposal to extend removal to take in ‘maladministration’: ‘so vague a term will be equivalent to a tenure during pleasure of the Senate’. …In 1970 Gerald Ford declared:

“An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” (Ford was speaking in the House on 15 April 1970, as recorded in the Congressional Record.)

Impeachment as a form of constitutional accountability.

…Political accountability in parliamentary regimes is a test of the agreement in political views between the executive and parliament. It is a governmental accountability. Who will govern and how?

This is where presidential impeachments take on a special prominence. Because of the President’s central constitutional mission, because he takes an oath to abide by and uphold the Constitution, the accusations that may entail his removal must bring out the character of his relation with the Constitution. They must state what the holder of the presidential office must or must not do. This is a form of what Bruce Ackerman has called ‘higher lawmaking’. Each impeachment is a new opportunity to state the Constitution. Conversely, resort to impeachment is a danger for the state and its stability. …

The kind of accountability in impeachment procedure is a ‘constitutional’ one. By ‘constitutional accountability’ I mean that which is incurred for calling into question the constitutional equilibrium. That appears in the impeachment articles passed by the House of Representatives against Johnson, Nixon and Clinton. In all these instances, the President was criticized for violating the Constitution: by ignoring the obligation it imposed (especially ‘that he should take care that the laws be faithfully executed’); by ignoring his oath of office by which he undertakes to uphold the Constitution; or by a more general formula observing that he has acted ‘in violation of the Constitution and laws of the United States.’

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America's Constitution

Conclusions

The remainder of Baranger’s essay discusses the meaning of violating the constitution, the clashing authority of Congress and the President to determine what the Constitution says, and the inevitable involvement of values and morality in determining what violates the words of the Constitution. It is valuable reading for those who want to understand what might lie ahead.

The requirement for a super-majority in the Senate means that it will always be rare to remove a president. But political impeachment would change the balance of power between Congress and the President. This might restrain the growth of presidential power and create a firmer foundation for the Republic.

In the first two comments are more notes from history about the Imperial Presidency vs. Congress and the Courts.

Abstract of Baranger’s paper

“The purpose of the present article is not to review all the aspects of executive accountability in the United States. Rather, I will attempt to make a few steps towards a better understanding of the removal procedure applicable, among others, to the President of the United States and that is commonly termed ‘impeachment’.

“Impeachment is central to the Constitution, exerting both an attractive and an inhibitive effect. It is attractive because the political will to hold the President accountable must fit into the mould of impeachment. It is inhibitive because impeachment has such solemnity that it is not an instrument for everyday use. Lawyers consider impeachment as a procedure of an exceptional nature.”

Denis Baranger

About the author

Denis Baranger is professor of Public law at Panthéon-Assas University and a fellow of the Institut universitaire de France. He graduated from Panthéon-Assas, as well as Sciences-Po Paris and the University of Cambridge. He specializes in French and comparative constitutional law, history of political thought.”  {From his University profile.}

Follow him on Twitter at @DenisBaranger. See his Wikipedia entry and his books(both in French).