Archives for June 2018

Article I, Section 2, Clause 5: “The House of representatives shall chuse the Speaker and other Officers; and shall have the power of Impeachment.”

Originally published as part of the “90-Day Study of the U. S. Constitution,” Constituting America, February 28, 2011.

 

The Articles of Confederation had established a federal government in which all three powers—legislative, executive, and judicial—resided in one body, the Congress. This proved unwieldy and in effectual. In principle, such an arrangement violated the Jeffersonian precept that any person or institution holding all of these powers constitutes a tyranny. The popular foundation of Congress under the Articles mitigated this danger but did not remove it, inasmuch as popular majorities might well tyrannize. The primary guard against congressional tyranny thus consisted precisely in Congressional incompetence, an incompetence derives not from the incapacity of its members but from the structure of the institution itself. At the Constitutional Convention in Philadelphia, the Framers needed to remove the structural impediments to good government while simultaneously preventing governmental efficiency from malign use. Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

The House of Representatives chooses its own officers, including its chief officer, the Speaker of the House. This seems obvious to us now, but consider the other possibilities. The Framers might have empowered the President to choose these officers, selecting them from each newly-elected batch of Representatives. This quite obviously would have compromised the independence of the House from the Executive branch. After the 2010 Congressional elections (for example) it would have enabled President Obama to choose the officers of a House that had been elected in part as a popular rebuke to the president’s party and its policies. After the 1972 Congressional elections, President Nixon would have been entitled to choose those officers, which might very well have ended the Watergate investigation and precluded his eventual impeachment.

Alternatively, the Framers could have provided that the Speaker and perhaps some of the other officers might be elected by the Electoral College—i.e., by representatives of the people as a whole meeting prior to and independently of the first meeting of the newly-elected House. But this would elevate them to the same status as the President and Vice-President; separation and balance of powers requires that equal prestige be attached to the legislature as a branch of government and not to particular members within it. Choice of the House officers by the House members ensures that those officers will be well known and esteemed by the majority of their colleagues. Other methods of selection could not guarantee this.

The power of impeachment bespeaks the character of the American regime, of republican government itself. In his 1791 Lectures on Law, James Wilson writes, “The doctrine of impeachments is of high import in the constitutions of free states. On one hand, the most powerful magistrates should be amenable to the law; on the other hand, elevated characters should not be sacrificed merely on account of their elevation. No one should be secure while he violated the Constitution and the laws; every one should be secure while he observes them.” The laws are the considered judgments of the elected representatives of the American people; to violate them while entrusted with a Constitutional office must deserve the swiftest punishment consistent with a fair trial. However, only a violation of the law can deserve such punishment, or else no sensible person would undertake the responsibilities of public office. To keep impeachment and trial within the bounds of the rule of the people’s law, as distinguished from the envy, partisan rancor, or other passions of the hour must be a fundamental purpose of any just and reasonable constitution-maker.

The Framers assigned the power of impeachment to the House. That the House wields the sole power of impeachment speaks not only to the separation of powers but to their interdependence. The House alone can impeach an officer of the federal government. Impeachment means accusation or indictment, parallel to the power of a grand or petit jury. Under the British constitution the House of Commons was regarded as “the grand inquest of the nation”; as the most democratic branch the one most frequently elected, the United States ‘house of commons’ indicts officers in the name of the sovereign–namely, the American people, unencumbered by any dynasty or aristocracy. This provides for the independence of the House from all other branches, including the other legislative branch.

But, once impeached, the accused officer then has his day in court, so to speak, not in the House but in the Senate; further, presiding over that trial will not be any senator but the Chief Justice of the United States. In analogy to a trial, the House indicts, the Senate serves as the jury, and the Chief Justice serves as the judge. This illustrates and provides for the interdependence of the three branches. Without interdependence, the American government would feature branches not merely separated but isolated from one another. Each branch would lean in its own way, producing governmental incoherence—what Publius calls, in another connection, a hydra or many-headed monster. The incompetence of the Articles of Confederation would reappear, albeit in a more complex, interesting, and elegant form.

As intended by the Framers, impeachment and conviction of wayward federal officers has proven rightly difficult but possible in cases of clear malfeasance. Removal from officer has remained mostly in the best hands—namely, the people themselves, who elect, re-elect or dismiss their representatives in free elections.

Originally published in Big Government, September 13, 2010.

 

As we celebrate Constitution Day this week, a simple question suggests itself: What exactly does the Constitution constitute? Or, with respect to the Framers: What were these men trying to do?

The Constitution cannot have constituted the American people. The Preamble begins, “We the People….” The American people already existed. They didn’t need a constitution to call themselves into existence. On the contrary, they called it into existence.

Although clearly labeled “The Constitution of the United States,” the Constitution didn’t constitute the United States, either. Eleven years earlier, the Declaration of Independence had already described itself as “The Unanimous Declaration of the Thirteen United States of America.” We the People (the People tell us) ordain and establish “this Constitution for the United States of America.”

The Constitution constitutes not the people, not the states, and not the union of the states, but the federal government of these United States. With characteristic bluntness, the Framers identify their constitution as a framework for ruling. Each of the three sentences introducing what we call the “branches” of the new government forthrightly speak of “powers”: “all legislative powers herein granted shall be vested in a Congress of the United States”; “the executive Power shall be vested in a President of the United States”; “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress shall from time to time ordain and establish.” The American people “grant” their government some of their powers—amendable, even revocable at pleasure by a sizeable majority following lawful procedures, to be sure–but ruling powers nonetheless.

The people “vest” certain powers in each of the three ruling “branches.” To “vest” literally means to clothe; in a monarchy the king or queen puts on the robe and the crown of authority. (An emperor ‘with no clothes’ has more than a problem of embarrassing display with which to concern himself.) In a republic the people vest their government with their own natural powers, arranging those powers in such a way as “shall [in the Declaration’s words] seem to them most likely to effect their Safety and Happiness.” The people so clothe the government in order to secure their unalienable rights—unalienable because natural, given by God and not by men, including the people themselves.

Modern states were invented in order to give governments the power really to secure territories, lives, and property of the people who lived on those territories. Feudal societies had consisted of a variety of authorities, each with its own sources of military and economic power: kings, aristocrats, churches, cities. At best, these authorities existed in a sort of equilibrium, each respecting the others’ spheres of rule, uniting on the occasion of any serious foreign threat.

Builders of the modern state designed differently. They centralized governmental powers, subordinating aristocrats, churches, and cities by establishing a network of bureaucrats who collected revenues, enforced law, defended and extended territories. Modern states crushed tribal and feudal societies in all but the most geographically inhospitable places—Afghanistan, for instance, where the mountainous terrain conduces more to pockets of political authority than to governmental centralization. Without a modern state, most peoples would soon have one, anyway: A state ruled by some foreign conqueror who exploited the decentralization of his victims’ feudal society.

But the same power that enables modern states to secure the rights of peoples, protecting their lives and property, can also ruin lives and take property from the very peoples who rightly ‘own’ that power. This seems to lead humanity into self-contradiction. To borrow an old joke on a slightly different topic, we can’t live with states and we can’t live without them.

With the government the Constitution constitutes the Framers solved the problem of the modern state. They gave the modern state a certain form, a certain regime, which retained the power of the centralized modern state while restricting its power to harm the people who had authorized its existence. The founded a republic, with rulers elected by the citizens—the ultimate rulers—or appointed by those elected representatives. They founded a commercial republic, in which every citizen could acquire and keep the property earned by working. They founded a federal republic, whereby each constituent state shared equal power in the Senate and population-apportioned power in the House of Representatives. They founded a republic of laws, limiting the central government to expressly enumerated and logically implied powers over each citizens, leaving most governing to be done at the local, county, and state levels of the federation. With representation, commerce, rule by law, and federalism in hand they could then frame an extended republic, big enough to defend itself against the geopolitical heavyweights of their day—and every day since then, so far.

Americans thus secured their status as a self-governing people, ready to resist any of their current or future regime enemies. That is what the Constitution is for.

Originally published in Big Government, April 18, 2010.

 

Geoffrey R. Stone, professor of law at the University of Chicago and editor of The Supreme Court Review, has a pertinent suggestion: The retirement of Justice Stevens and the impending nomination of his successor should spark “a frank discussion” of “the proper role of judges in our constitutional system” [“Our Fill-in-the-Blank Constitution,” the New York Times, April 14]. True to his promise of frankness, he charges “conservative” judges with advancing “disingenuous descriptions of what judges—liberal or conservative—actually do.” Such men as Justices Roberts and Scalia claim to seek the original meaning of the Framers, to serve as umpires who call the plays as they see them, according to the rules. But, Professor Stone charges, they do no such thing.

Such Constitutional phrases as freedom of speech, due process of law, free exercise of religion, cruel and unusual punishment do not define themselves, he remarks; “they did not have clear meanings even to the people who drafted them.” The Framers left such definition “to future generations.”

This conservatives on the Court all too eagerly have done. “Fueled by their own political and ideological convictions, they make value judgments, often in an aggressively manner that goes well beyond anything the Framers themselves envisioned.” The list of horrors proves long: examples include First Amendment protection for advertisers; prohibition of the regulation of guns; the right of the Boy Scouts to exclude ‘gay’ scoutmasters, although presumably not cheerful ones. Meanwhile, liberal judges have upheld Madisonian principle by striking down laws prohibiting interracial marriage whilst forbidding forced sterilization, protecting the rights of political dissenters and of minority religious denominations, and similarly handsome things. Bad conservatives. Good liberals.

Conservatives, he continues, don’t protect people. They protect “corporations, business interests, the wealthy and other powerful interests in society.” Driven by “their own political and ideological convictions,” conservatives “employ judicial review to protect the powerful rather than the powerless,” pretending to construe the Constitution as written but in fact injuring those “who are unlikely to have their interests fully and fairly considered by the majority” of their fellow citizens.

What conservatives lack and what liberals have, Professor Stone maintains (echoing Presidents Bill “I feel your pain” Clinton and Barack Obama) is empathy. Empathy, fellow-feeling, “helps the judges understand the aspirations”—don’t forget, intentions and meaning are inscrutable—”of the Framers.” Not only that, empathy “helps judges understand the effects of the law on the real world,” on “the lives of real people”—as distinguished, evidently, from such surreal people as corporate executives, gun owners, and Boy Scouts. If no one today can parse the Framers’ intentions and meaning, divining their aspirations might seem even more difficult, but Stone knows how, and someday might be so kind as to let the rest of us in on that.

Leaving aside Professor Stone’s odd equation of the rich and the powerful with the majority of people in this or any other society—are not property rights, for example, designed in part to protect the few who are rich from the many of us who are not?—two problems arise with this “frank” discussion of judicial deportment.

First, to say that such formulations as free speech, equal protection, and due process had no clear meanings to the Framers, that they are “blanks” to be “filled in” by “future generations” of judges, ignores the several centuries of legal precedent and philosophic reflection that preceded the year 1787. The Framers didn’t pull the Constitution out of thin air, that summer. They had read their Blackstone. The English common law, the treatises of Grotius, Locke, Montesquieu, Vattel and a dozen more philosophers and jurists: no blank slate, surely? True, such foundational terms “are not self-defining.” That’s why the Framers took care to read the books that defined them.

Did the Framers, and those who’ve tried to follow their intentions, understand that Americans will always need living judges to interpret the Constitution and apply it to cases? Good news, here: They were not idiots. They did indeed understand that. but this did not commit them to “empathy,” a word that does not loom large in their writings. When Publius considers judicial overreaching in Federalist # 78, he says that judges “declare the sense of the law”—rather strongly implying that framers of laws put some sense in there, and do not simply draw boxes marked ‘to be filled in later.’ Publius worries not about empathy or the lack thereof, but rather that judges might “be disposed to exercise WILL instead of JUDGMENT,” to substitute “their pleasure to that of the legislative body.” The will, benevolent or malign, empathetic, or cold, does not counsel anyone. The will may command; it may exhort; it does not reason, and it tends to disrespect limits. Judges therefore should not so much empathize or disdain. Judges should judge. That is to say, they should reason, using the law as their guide.

The claim that empathy deserves a central place in judging itself has a history, one traced in Paul Eidelberg’s seminal book, A Discourse on Statesmanship: The Design and Transformation of the American Polity, published in 1974. Eidelberg notices that the Progressives, notably Woodrow Wilson, required of judges and political men generally not so much prudence, reasoning, and judgment but compassion. Wilson did not suppose judges did not really know what the Constitution meant. He rather supposed that to be the problem. Reasoning founded on Constitutional law tends not toward the expansion of the modern state, including large provisions for public charity, which Progressives so fervently commended. Such reasoning tends to find limits to legislative and executive action, and therefore to government. More profoundly, reasoning founded upon Constitutional law tends not to register the Progressives’ historicist conviction that humanity has outgrown the thought of previous generations and that such reasoning must prove inadequate both morally and politically for today. Compassion, being a passion, tends toward the unlimited, toward boundlessness, and endless horizon. Hence such notions, among Progressives, and “the elastic Constitution” (Wilson) and “the living Constitution (Justices Roscoe Pound, William Brennan).

And so it has gone, for much of subsequent judicial decision-making by the new liberals, the Progressives. Compassion ‘helps’ those judges fill in the (alleged) blanks of Constitutional language with, to use Professor Stone’s phrase, “their own political and ideological convictions.” But shouldn’t a constitution, well, constitute something—say, a set of ruling institutions providing a tolerably knowable and stable framework for conducting public business? Precisely what empathy, elasticity, and growth cannot provide?