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.
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