Impeachment Is Not Enough

12th March 2019 Off By binary
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Sanford Levinson

I am extremely grateful for this opportunity to comment on Gene Healy’s excellent essay bewailing what lawyers might call the “desuetude” that has befallen the Impeachment Clause as a truly functioning part of our operating political system. As he notes, part of the reason is the retroactive belief by none other than Ken Starr himself that the impeachment of Bill Clinton might have been ill-advised; perhaps, Starr seems to be suggesting, liberal legal scholar Ronald Dworkin was correct that impeachment should be considered a “constitutional nuclear weapon” to be used only in the most truly dire of circumstances. Yet, just as some conservatives like Starr are reconsidering their role in the Clinton impeachment, at least some liberals are beginning to think they were far too quick to rally behind Clinton and to diminish the importance of his lying and truly recklessly disgraceful behavior. It is tempting, of course, to dismiss both changes of mind as being simply “politically motivated reasoning,” where the “real topic,” as it were, is the advisability of impeaching Donald J. Trump.

“Whatever one’s assessment of the current president,” Healy writes, “the notion that impeachment is a ‘constitutional nuclear weapon’ is unhealthy for our democracy.” I could not agree with him more, particularly given his closing description of the modern American president as occupying an office that is both “powerful and dangerous.” One can argue whether or not the Framers envisioned such an office or, instead, imagined a president who would basically serve as an assiduous clerk “taking care” to enforce laws passed by Congress. Frankly, it doesn’t matter. As historians agree, the “modern” presidency is exactly what Healy says it is.

The only debate would be exactly when that presidency emerged. Some might go all the way back to Washington’s unilateral declaration of neutrality in the war between Great Britain and our notional ally France, or Thomas Jefferson’s decision to violate his own constitutional principles by accepting the almost literally incredible opportunity offered him to purchase not only Louisiana, but also the entire Midwest extending into Montana. Others might wait until Teddy Roosevelt initiated the “bully pulpit” conception of the presidency or Woodrow Wilson was delegated vast “war powers” to conduct the war that would ostensibly end the prospect of future wars (and, in addition, make the world safe for democracy). No doubt Franklin Roosevelt would play an essential role in such arguments. I myself would emphasize Harry Truman, the purportedly modest man from Missouri who not only decided to drop two atomic bombs on Japan but also chose to develop hydrogen bombs and to take the United States into the Korean War without any explicit authorization from Congress. As Thomas Wolfe suggested, one can’t go home again, and it is simply unthinkable that the office of the presidency could ever return to more halcyon conceptions. As Donald Rumsfeld might put it, we must conduct our politics with the presidency we have, not the presidential office we might prefer. Both the “power” and “danger” are inevitably attached to the contemporary office, and we must respond accordingly.

If I have a disagreement with Healy, it is only that he focuses exclusively on reviving the Impeachment Clause as a means of disciplining presidents we truly find dangerous to our political order. Part of his strategy is making entirely cogent arguments about the original conception of the Clause as defining impeachable behavior more broadly than we think is the case today, when the notion of “high crimes and misdemeanors” has often been interpreted in quite narrow fashions. But, of course, there will be competent lawyers who will offer more restricted “original understandings.”

I deeply regret that the Impeachment Clause has become almost entirely the province of lawyers and, therefore, of what we properly label “legalistic” modes of argumentation. For some, this requires careful historical excavation of what Madison and others in 1787 meant by “high crimes and misdemeanors” or, for others, what the “original public meaning” of such terms were at the time. Others are less historically oriented and instead want to examine the precedents, whether emanating from courts or from prior Congresses at the time, say, of the Johnson, Nixon, and Clinton impeachments. There are, of course, other approaches to constitutional interpretation that are available, but most lawyers and laity are uncomfortable if one forthrightly asks a simple question: What approach to the Impeachment Clause would in fact be best for our polity now and in the foreseeable future? That is surely the central focus of Healy’s essay. He is properly concerned that we do not have adequate means of disciplining presidents, including forcing their dismissal from office prior to the conclusion of what the Constitution establishes as a fixed four-year term.

My fear is that we cannot achieve real progress so long as we remain fixated on the Impeachment Clause, even if, like Healy and myself, we would readily interpret in a quite broad fashion. It is not that I truly oppose such efforts at reinterpretation, given the desirability of putting some fear in the hearts of overreaching presidents. But it would, I believe, be far more productive if we would actually consider the possibility that we need more dramatic revision of the Constitution. Decisions that might have made perfect sense in 1787—including a fixed term limited only by the possibility of impeachment—do not serve us well 232 years later.

Alexander Hamilton begin Federalist 1 by saying that American exceptionalism in effect consisted of our collective ability to engage in “reflection and choice” as to how we should govern ourselves. Other essays in The Federalist emphasized the importance of learning from “the lessons of experience” and therefore taking advantage of the opportunity given by Article V of the Constitution to amend the document in order to make it more suitable for an inevitably changing set of circumstances. I fear that we have lost any confidence in our ability to engage in such “reflection and choice.” As someone who has for some years advocated the desirability of calling a new constitutional convention to ask probing questions about what aspects of our political system might need even quite radical changes, I am fully aware that most of my family, friends, and professional colleagues consider any such suggestion to be crazy. The primary reason, I am afraid, is not necessarily that my critics in fact believe the Constitution is nearly perfect as it is; instead, they are paralyzed by the fear of what might happen if “We the People” might really believe that we could exercise our “popular sovereignty” to assess and then perhaps change the Constitution that for many serves the function of a secular holy writ.

In any event, one of the things I would very much want to be discussed at any such convention is the addition of a new provision that would at the very least allow Congress, by a two-thirds vote of the House and Senate meeting together, to pass a vote of “no confidence” in any sitting president that would serve to end his or her term immediately. If the basis of a lack of confidence is the personal character or behavior of the president, then, of course, the vice-president should succeed. If, on the other hand, the basis is a deep fear of the wisdom of the policies identified with the Administration, then instead the caucus of the party to whom the president belongs should be allowed/required to pick a successor, subject to ratification by an absolute majority of both houses of Congress voting as one.

There would be no good reason to rely on vice-presidents to succeed to the Oval Office if in fact one mistrusted their judgment to the same degree as the president’s. If one, for good reason, does not trust Congress to take its responsibilities with adequate seriousness, then I would be fully open to adopting the possibility offered by the Wisconsin and California state constitutions, i.e., a “recall election” upon a sufficient percentage of the electorate signing the requisite petitions endorsing such an election. One can only imagine what our politics would be like right now if Republicans actually had to explain to their constituents exactly why they continued to have confidence in Donald Trump or if we could collect signatures at every street corner for a recall election. Of course, it’s possible that a convention would engage in the most truly fundamental debate: Are we well served in the 21st century by a presidentialist system, which appears to advantage primarily candidates of both parties whose chief skill-set is campaigning and not necessarily actual governance?

Healy notes that many of those who are impeachment-averse fear that the American political system is simply too potentially unstable to be able to handle the forced eviction of an elected president from the White House. But why? Richard Nixon’s unprecedented resignation led to what was in context a brief era of good feelings, at least until Gerald Ford pardoned Nixon. More to the point, parliamentary systems all over the world offer examples of repudiated prime ministers who are forced out of office, and the polity does not quake with instability. Margaret Thatcher, probably the most important peacetime prime minister in 20th century Great Britain, was unceremoniously driven from office. John Major not only succeeded her; to the surprise of many, he led the Tories to victory in the next election. Similarly, whatever one thought of the merits of recalling California governor Grey Davis from office, it is scarcely the case that one would describe the consequences as chaotic. Arnold Schwartzenegger won election and proved himself a quite popular leader.

If one is fearful, that perhaps is evidence itself of the grotesque over-emphasis we now place on the office of the presidency. The “imperial presidency” is as much a function of popular psychology and projection of often unwise and unmerited hopes onto our own version of a “Fearless Leader” as it is the product of the actual conduct of given presidents. We should ask ourselves why great cities are almost literally shut down when they are visited by the president and his ever-growing security entourage. We should question the frequent playing of the semi-fascistic “Hail to the Chief,” itself linked to the development of the national security state following World War II. We would be a far healthier polity if we treated presidents as Ross Perot described them in 1992—our “employees” to be retained or fired to the extent that we think they’re serving us well. One can only hope that Healy’s cautionary essay will get the wide readership and attention that it deserves.

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