Some musings on the US Constitution

In the fire and fury of current political debate, I thought it might be interesting to put a few thoughts down for your consideration. I said in the fire and fury of current political debate. I hope these thoughts and opinions, which are purely my own, are a small antidote to that. Calm, reflective, suggestive and welcoming of comment; even from those who disagree with me. I have a personal liking for busting myth balloons but, in the space of a short article, I can only suggest some themes of interest in the nature of a mediation rather than a dissertation.

This piece was actually stimulated by the media response to the suggestion that President Trump wanted to give Air Force 1 a new paint job! I found the media response interesting so I wanted to look at a couple of things that I think are of current interest.

Firstly the “I Word” as it is being called. What is the nature of the impeachment process of a President, and the standards required. Then I’d like draw some conclusions from that. I should point out that this article has nothing to do with whether the current President should be Impeached or not, which is a different subject and one upon which I will not express an opinion here! My thoughts in this article are intended to relate solely to principles connected with the rule of law.

The second is the general relationship of an(y) executive to the constitution. Many claims are made about US Presidents (of both persuasions) acting “unconstitutionally”. I wanted to examine the consequences and risks of over reliance on precedence. 

As you can see, these are not easy subjects for a short article! But let me just provoke some thoughts for you. If I get disagreement from both sides of the argument there are two possibilities; (i) I’m wrong and everyone agrees I’m wrong or (ii) everyone tells me I’m wrong for a hundred different reasons upon which they cannot agree, thus convincing me I’m probably right!!

Impeachment

Under the US Constitution, the Impeachment of a President (as opposed to “removal” from office, which is a different power) is possible by Congress for the (now famous) reason of “High Crimes & Misdemeanors” (hereinafter HC&M). 

Much legal scholarly analysis has gone into this subject. I propose that most of this analysis has been an utter waste of time! It has been a waste of time because it has been analysis conducted by lawyers looking for a precise legal definition. This is the equivalent of asking a medical doctor to tell me whether a microchip is working properly or not. The wrong discipline is being deployed.

To prove it, let’s look back into history for the origin and application of the phrase. 

In United States-v-Burr, Chief Justice Marshall made it clear that he understood constitutional expressions to have their origin in English Law from which many of the principles were drawn. The Due Process Clause being an obvious example taken directly from Magna Carta. These expressions and meanings would have been familiar to the extremely Learnéd Founding Fathers; well versed in both law and philosophy of many kinds. The original meaning was the reason they chose to use specific terms.

From the late middle ages, the English Parliament used the expression (HC&M) in respect of the actions of government officials (some of which we might now call “Ultra Vires”). They used it for a wide variety of actions, seemingly for things that they simply didn’t like. Some of those actions were not even identifiable crimes in Law! For example, not spending money allocated by Parliament. The power to impeach was something Parliament had reserved to itself for pretty much anything it decided was impeachable.

So it was that Benjamin Franklin described the US Constitutional power to impeach as being available when the Executive "rendered himself obnoxious," and “when his conduct should deserve it”. Benjamin Franklin was a clever guy! He knew what he was writing. Do you think a man as clever as Franklin could only come up with “if he’s obnoxious” because it was the best he could think of? No, neither do I.

James Madison thought, "...impeachment... was indispensable" to defend the community when "loss of capacity or corruption….might be fatal to the Republic.” Again, Madison hasn’t here listed a set of specific clauses with sub-clauses and specificity. (I note the Constitution also says for “Treason” but I leave that issue aside for today’s purposes). The justification for impeachment sets the bart no higher than just being a generally bad person.

Therefore, being so general, how is Impeachment to be determined? I note that the Founding Fathers gave the power of the conduct of the investigation, the conduct of the Trial and the judgment to the legislature and not to the Supreme Court. Is it not reasonable to presume that if they had intended Impeachment to be a legal, rather than a political, process that the Supreme Court would have been given complete conduct of the matter? I draw the conclusion they intended Impeachment to be a political process and not a legal one.

The criteria for Impeachment, therefore, has no strict legal measure and it is futile to look for one except for reasons of precedent (which I will return to below). There is no fixed quality bar which must be overcome to start, and successfully implement, an impeachment except one, and one only; that the Congress wants to. There is no limitation in the Constitution on Congress’ power. No limit to the number of times it can do it. Nothing! Just “HC&M” which, we ought to now conclude, actually means “whenever Congress wants to, for whatever it wants to.”

As a result, in a functioning democracy, the question may therefore be reduced to the following; “we don’t like President X but do we have enough popular support to remove President X”.

This is a bitter pill to those who support the idea of, as John Adams said, a “country of laws not of men”. However, the big and obvious point here is that Impeachment was, on the contrary, intended to be a political issue and conducted at the unimpeded discretion of the legislature. Our search for some high-principled definition of HC&M is both bound to fail and is mistaken as a point of constitutional practice.

“Unconstitutionality”

So, if, as I suggest, Congress has the unrestricted power to determine that a President has met the requirements for Impeachment, and they want to Impeach, what is to stop each successive Congress from Impeaching each successive President of the opposing Party just because that President does something they disagree with?

This is where we come to an important aspect of many constitutions, that of Precedent. In this context precedent is actually a euphemism for self-restraint. There may be a number of reasons for that self-restraint; Mutually Assured Destruction (“MAD”), the risk of unpopularity, the greater good of not wanting to create instability, two thirds of the Senate required to vote in favor, and so on. But (with the exception of the Senate number) these reasons not to impeach are not constitutional and are entirely self-imposed constraints.

In fact, much of what the President does is based on precedent. For example, giving the State of the Union Address in person is entirely precedential. Until quite recently in historical terms (1913), the requirement was (and still can be) satisfied simply by the President sending a written report to Congress. There is no criteria for what the State of the Union Address should include except Article 3 says the President shall “give to the Congress information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient.”

So let me put a proposition to you; President X sends a letter to Congress consisting of “Dear Mr Speaker, The State of the Union is good and as you are all a bit of a waste of space, I won’t be recommending any legislation to you this year. Yours Sincerely, The President.”

The response may be uproar in the press, etc etc, but it certainly is not unconstitutional. Thus, we must separate two different issues; when a President does something controversial and/or does not follow precedent, as opposed to a President doing something unconstitutional. (I note it is possible for a President to do something contrary to Statute and for the Supreme Court to ultimately determine that issue, but I am not discussing that today.)

So, what is my point this second section? It is to ask the reader to recognize that a constitution which was adopted with an extensive provision for Amendments is in danger of becoming ossified. The Federalist Paper No. 43 stated that the Amendment process “guards equally against that extreme facility which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults.” 

This was Prescient but has the balance shifted too far towards "immutable"? Almost immediately upon the Constitution's coming into effect, 10 Amendments were adopted (known as the “Bill of Rights”; borrowing that expression from a similar package in England from the 17th Century).

Oops, we forgot to put Freedom of Speech in, we’d better correct that! (I exaggerate, of course!). So, the Founders were clear sighted enough to know that it couldn't (probably ever) be a perfect document. It would need improving as time went on. Since that time, the United States has become enormously more complicated and, with it, the role of the President has expanded beyond anything I think the Founders would have imagined. The use of Executive Orders, for example, has assumed an importance they could not have imagined.

Added to this problem is the issue that President Washington warned of in his valedictory address; a caution against the rise of political parties. He warned that the US constitutional system wasn’t designed to operate in the “Westminster” style of Party politics and operating in that way would cause problems. The Constitution was designed in such a way that, in the event of a failure of compromise, nothing much can happen unless previously accepted precedents are not adhered to. If the system of precedent ceases to function, MAD or tyranny is often the result. So, in a scenario where precedent breaks down, the response of constitutional government should be to reassess the gaps in the constitution and fill them with Amendments designed to plug the gaps.

That would be the remedy to protect everyone and ensure a nation governed by Laws and not by “men” (or women!). Unfortunately, this seems to have become virtually impossible judging by the decreasing rate at which Amendments have been ratified.

The current US President does things that some consider as not following precedent (eg. extensive use of Twitter, not holding press briefings or whatever) some have been invoking the Constitution in their complaints (duty of a free press to have access to the President or his views etc). I have two cautions against both the trend to avoid precedent and the claims that not following pure precedents amount to unconstitutionality.

The first is that as precedent breaks down, only the Constitution can serve the purpose of protecting against Tyranny. Any constitution frozen in time cannot do that. Secondly, that for Presidential impeachment, don’t look to the lawyers! HC&M is HC&M if and only if the Congress says it is!