Impeachment Won’t Stop the Debasement of Our Government

The Senate as a Court of Impeachment for the Trial of Andrew Johnson," 1868.

“The Senate as a Court of Impeachment for the Trial of Andrew Johnson,” 1868.

Proper as it is to dismiss President Obama’s daring his opponents to impeach him as childish posturing for his political base – secure as he is that the Senate’s Democratic majority would prevent his conviction regardless of any Constitutional evidence brought against him – nevertheless we must note that Obama risks disaster, as do children who play with matches in the presence of gasoline. His flaunting of impeachment sets up the alternative between the unfettered power of any president supported by a Senate majority and, on the other hand, the unfettered power of any Congressional majority coherent enough to remove presidents politically unpalatable to it.

Either way, Obama is opening the door to the partisan erasure of the distinction between executive and legislative power.

The question before us has far less to do with President Obama than it does with whether America will be governed by a succession of parties, each working its unfettered will. Anyone (including Obama) who imagines that the Democratic Party is an extension of the Obama presidency and hence that Obama is merely adding to the presidency’s powers has reality precisely backward. By underlining that the foundation of presidential power – what keeps the president in office – is partisan power in Congress rather than the Constitution, Obama is transforming the American system into a parliamentary one, just like in Europe, just as Woodrow Wilson advocated in 1885. Obama, by breaking down the separation between the presidency and his party in Congress, is eliminating the distinction between the executive and legislative branches – a distinction that makes the United States government different from any other in the world (except Switzerland). Absent that division, the only practical question becomes: “which party shall work its will?”

A glance at the record of the 1787 Constitutional Convention as well as at the Federalist Papers removes doubt about what impeachment is supposed to do and not do. It should lead Democrats, Republicans, and the rest of us to ask whether we really want to continue down the road that Obama is tracing for us.

Connecticut’s Roger Sherman, “contended that the legislature should have power to remove the Executive at pleasure.” Nobody agreed. Virginia’s George Mason expressed the general sentiment when he argued that, while “the fallibility” of electors and “the corruptibility of the man chosen” makes indispensable “some mode of displacing an unfit magistrate,” nevertheless he “opposed decidedly making the Executive the mere creature of the Legislature in violation of the fundamental principle of good government.” New York’s Gouverneur Morris agreed, but was wary, lest impeachment “render the Executive dependent on those who are to impeach.”

Having agreed to provide for the president’s impeachment, the question became how to define the occasions of it so as to prevent impeachment from becoming a mere tool of political control. Everyone agreed that “treason and bribery ” ought to be causes. But George Mason noted that “Treason as defined in the Constitution will not reach many great and dangerous offenses….He movd. to add after “bribery” “or maladministration.” Mr. Gerry seconded him. Virginia’s James Madison objected: “So vague a term will be equivalent to a tenure during pleasure of the Senate.” Seeing the sense of that, “Col. Mason withdrew “maladministration” & substituted “other high crimes and misdemeanors”

That solution-by-vagueness, adopted eight states to three, simply left safeguarding the separation of powers to future generations’ patriotic good sense.

Immediately, Alexander Hamilton warned that this would be in short supply. In Federalist 65 he wrote: “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective.” That is because the “subjects of its jurisdiction…are of a nature which may with peculiar propriety be denominated POLITICAL… The prosecution of them…will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

A president’s flouting of the Constitution, sustained by his party, is precisely the danger that Obama and the Democratic Party are bringing upon America. Let us look closely at the joint nature of this enterprise.

No one in the Democratic Party has evinced the slightest opening to the possibility that he or she might consider seriously the merits of accusations that president Obama has refused to enforce laws that are on the books or that he has enforced laws contrary to the wording of those very laws. On the contrary: the Party seems quite united in the proposition that anything at all that its president might do in the service of its constituencies’ desires is cause for celebration. No exceptions.

How is any opponent of those desires to regard this? Impeaching Obama misses the bigger part of the problem, namely a Democratic party so partisan that it places its desires above the Constitution. This party not only supports its own executive regardless of the Constitution but, in the past, was ready and willing (but it lacked the requisite majority) to remove the opposite party’s president simply because it disagreed with him. Quite simply, the Democratic Party is moving beyond the Constitution because a majority of its voters is doing so. But how does one impeach a party that represents a substantial part of the body politic?

What is the solution? The Constitution offers only the prayer that patriotic good sense will prevail. But in its absence? The Hydra-like Administrative State in which we now live offers so many temptations to stick it to one’s least favorite people as to render it unlikely that rival sectors of society will divorce amicably and agree to let the other live in its own way. Most likely, we will get one form or another of what Woodrow Wilson wanted: alternating governments by parties so partisan as to unite legislative and executive power. It won’t be America. In fact, it’s already ceasing to be.

Angelo M. Codevilla is professor emeritus of international relations at Boston University. He served as a U.S. Senate Staff member dealing with oversight of the intelligence services. His new book Peace Among Ourselves and With All Nations was published by Hoover Institution Press.

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Comments

  1. gabe says

    A welcome counterpoint to Buckley’s “The Once and future King….”

    What we have instead is a Parliamentary system without the benefit of a “no-confidence vote.”
    I suspect however, that even with such a mechanism, we would have no alternative as one party (Dems) appears to have adopted the typical stance of Parliamentary parties and have found it to their liking.

  2. kldimond says

    I agree with just about all of this, but one point that I think deserves light: the GOP is just as bad about sidestepping the Constitution.

    Yes, they (as do the Dems) trot it out when it serves their purposes, but it would be fun if they all (all who have taken the oath–yes, that’s millions of people) had to take the oath again and, as in the movie, “Liar, Liar,” they had to tell the truth–physical impossibility to do anything else.

    There’d be a lot of groaning, grimacing and guilty or malicious giggling, I’m sure, in addition to outbursts of hatred for the limits it imposes and derision of the ethics and goals written into it.

  3. David Frisk says

    On the contrary. The only weakness in this piece is the suggestion that the Republicans would act the same way, firmly closing ranks behind a president who deserves to be impeached. I seriously doubt that, and the Nixon precedent argues otherwise. The problem is that the Democratic party has become, as Codevilla writes, “so partisan that it places its desires above the Constitution … moving beyond the Constitution because a majority of its voters is doing so.” He didn’t write that about the Republican base because he couldn’t.

    • djf says

      David Frisk is quite right about the Republican base. However, it should also be noted that the Republican establishment (including most of its senators) would not remove Obama from office, even if it had the power to do so, because the Republican establishment simply is not partisan in the same way the Democrats are. They see their primary role as serving as lobbyists for their risk-averse, angle-seeking business donors, rather than exercising national power, find much of Obama’s agenda acceptable (e.g., immigration and even, truth be told, Obamacare), and have not the stones to do something that would make their donors nervous and would call down upon them the wrath of the harpies of the media, academia, and the legal establishment.

  4. Thomas Taylor says

    This articles begs the question of; when did the debasement of the USG begin? I submit that the debasement that the author refers to, began shortly after the election of Obama. As noted above establishment Republicans would not remove Obama nor would they remove a Republican President acting in similar manner. Obama has exploited that fatal flaw in our Constitution…it assumes honest actors. A corrupt Executive and cowardly Congress can be corrected at the ballot box. If not then, the 2nd Ammendment becomes operative.

    • Mark says

      Debasement of the Federal Republic began with the election of Obama? No. All of this was foreseen in the 19th Century with the rise of partisan politics and abuse of executive power. Each President, from 1828 until John Tyler took office, abused their power through party politics. The parties began having conventions during this time to select the 1 representative they would run in the Presidential Election. The great triumvirate warned of the shift in interests with the convention system.

      Fast forward to the 16th and 17th amendments… the final blow was dealt in the original structure of our government by removing all state checks on federal power by handing special interests the Senate (the body with a final say on treaties, federal judges, the cabinet, an impeached officer’s guilt, and all federal legislation). The 16th Amendment took away State protection of its citizens from stuff like the tariff of abominations as well.

      By the people seeking more control, they actually relinquished their protections from tyranny.

  5. JP Knight says

    The good professor is sadly and dangerously naive because he overlooks this most important fact: Obama is acting the way he is in order to guarantee that there will never again be another Republican president.

  6. libertarian jerry says

    What is the use of arguing over the usurping of Constitutional power. The Constitution has been a dead letter for at least 80 years. We now live in an administrative state ruled by one political party with two branches. Elections are meaningless and tilted. Whichever of the two political branches obtain power the system,with it’s administrative bureaucracies,stays in place. To imply that the 2nd.Amendment would change the status quo is unrealistic. First of all most of the voting population either are employed by or live off of the state. They like things just the way they are which means keeping the government gravy train rolling. The problem in America is not the Congress or the Presidency but the majority of American people. The majority of the people could care less about the Constitution and liberty. The majority have,after the last 3 or 4 generations, exchanged their liberty for security. The founders of the Republic stated that the only way that Americans could keep their liberty was to stay a moral people. Unfortunately that morality is long gone and with its going so went the Constitution.

    • gettimothy says

      In every great rebellion are the tiresome, tepid voices of men who lament “what is the use? it cannot be done!”

      Our founders where not those men and by God’s grace neither am I.

      • David Frisk says

        Without minimizing the Founders’ tremendous achievements, I would say that their task, although certainly hard, was much simpler than ours.

  7. Scott in PA says

    Codevilla is being very optimistic that there will be “alternating governments by parties” in the future. But the Democrats are in the process of replacing the electorate, a process begun with the Immigration Act of 1965. Obama’s granting amnesty by fiat is just the next step. The result of this process is that the Republicans will be so marginalized if not extinct in a matter of 20-30 years. It’s unlikely that a GOP candidate will ever again win FL, CO, or NV. Soon, every federal judicial seat will be Dem appointed.

    • gabe says

      You are quite right about the Immigration Act of 1965 and it’s “unintended” effects, Ted Kennedy’s protestations to the contrary notwithstanding. Clearly, the Dems were looking down the road for a “feeder system” for their electoral base. The success of this policy is what has convinced them to go all out with current immigration push.

      Thus there is some concern as to whether there will be alternating parties.
      If it is not stopped now, the feeder system will have worked so well, that there will be no chance for the GOP (who incidentally is congenitally unable to see a threat to its own existence while it courts the interests of businesses seeking continuing downward pressure on wages.

    • David Frisk says

      I think that scenario is a little too pessimistic, but it’s possible. Certainly Codevilla is too quick to assume a political future in which the Republicans frequently displace the Democrats in the presidency.

  8. phwest says

    Sadly, this is the inevitable outcome of the Progressive amendments, which wrecked critical elements of the balance of powers in the Constitution. The onset of this was delayed, oddly enough, by the Civil War legacies of the political parties. For years, the Democratic party was an alliance between white Southern populists (who were very conservative on some, but not all issues) and Northern labor. As such, the party checked presidents (see FDR, on numerous issues) who went too far polically because there was generally a strong faction in the party that was against the president on that particular issue. With the ideological sorting of the parties that followed the Democrats abandonment of segregation, that restraint on the union of president and party was removed.

    The rot started with the popular election of Senators. With that amendment, the states lost a critical check on the federal legislature. The now routine bullying of states by the threat of withholding federal funds would never have been allowed if the states were still appointing Senators. Progressives were well aware that state legislatures, jealously protective of their own power, would continue to check the expansion of federal power unless the Senate could be freed of this oversight. The Reconstruction amendments dealt a blow to the autonomy of the states, but the Progressive amendments permanently rendered them subordinate wherever the federal government decided to exert power.

    The progressive amendments were all about increasing democracy at the expense of the Republic. The shift to a more parlimentary style of government was the whole point of the exercise.

    • gabe says

      Absolutely – and as of late we now see a number of the political intelligentsia criticizing the “separation of powers” – once this is deemed inoperative, say hello to parliamentary Government where the dominant party may work its will!

    • Mark says

      Exactly. Not to mention the Senate has a say in administrative appointments and SCOTUS nominees… by removing the very purpose of the Senate, we removed State approval of high-level executive branch officials and of the final arbiters as to constitutional/unconstitutional status of exercised federal power.

    • David Frisk says

      Too much has probably been made of the 17th Amendment (the direct election of senators). The senators appointed by today’s California legislature, for instance, would be as bad as Barbara Boxer and even worse than Dianne Feinstein.

  9. HC68 says

    The fundamental problem is class-based. Not economic class so much as _social_ class. Modern America is governed, and has been the the 1970s, but a social class that is getting ever more out of step with the rest of the country, religiously, socially, culturally, etc. It’s true that both the country class and the ruling class, to use Codevilla’s terms, have a mixed record on respect for the Constitution, but the ruling class is far far worse. Their basic religious and social beliefs force them to see the rest of America as fundamentally flawed and bad, and to simultaneously hold them in contempt and a certain amount of fear.

    The problem is not that the public won’t oppose Obama. It’s that the anti-Obama anger, and the anti-ruling class anger, so far has nowhere to land. The country class is angry about defense weakness, open borders, free trade agreements that undercut national sovereignty and middle-class prosperity, abortion, gay ‘marriage’, anti-Christian and anti-Jewish bias, anti-English language biases, conscious anti-assimilation policies, anti-gun efforts, using environmentalism as a cover for anti-American actions, and any number of other things. But the GOP has nothing to offer in response to that anger.

    Remember the old Reagan ad from the 80s, where they listed a set of national problems and pointed out that in each case, the Dem solution was to ‘raise taxes’? Today it’s the GOP that sounds like a broken record.

    Democrats trying to throw the border wide open and import voters? GOP response: We’ll cut capital gains taxes.”

    Democratic efforts to undercut marriage and family? “We’ll leave it up to the States, and cut capital gains.”

    Middle class economic squeeze? “Cut capital gains and more free trade!”

    Millions of illegals demanding a ‘right’ to vote and stay? “Path to citizenship, and cut capital gains!”

    I’m exaggerating, but the one thing the GOP really wants to do is focus on the economic part of their platform…and that is precisely where public support for them, including in their own voting ranks, is weakest and most ambivalent. The Chamber of Commerce likes Obamacare, because it lets them offload their health care liabilities onto the public. They’d rather cut SoSec and Medicare, which represent costs to them.

    So the GOP wins big in 2010 on the backlash against Obamacare, and immediately tried to change the subject to ‘entitlement reform’, meaning Social Security and Medicare cuts and privatization, and tries to paint Paul Ryan as a ‘TEA Party favorite’, even though he never was any such thing and you hardly heard his name in the runup to 2010.

    When 2012 came, they offered a business-wing guy with a track record of social liberalism and close ties to Wall Street, and then wondered why he lost.

    Winning and holding a viable GOP majority means addressing the issues the voters are about, not somehow changing their minds about Wall Street and free trade. It’s no use trying to win with business wing or libertarian candidates when the huge majority of their voters don’t trust the business wing and are not libertarians.

  10. Michael says

    False choice error.

    This is not a decision an unfettered president who chooses to take unlawful actions and daring Congress or a Congress majority that pursues impeachment of a president it finds politically unpleasant.

    This is an institutional issue of Congress reassert its authorities as granted under under the Separation of Powers. In a three branch “coequal” structure, there will always be tensions. But it is an institutional obligation when one branch usurps the authorities granted to another by the Separation of Powers to rebalance the structure. In the current circumstance you have a president bullying the legislative branch and acting unilaterally to the fullest extent possible and then some.

    The political aspect really should be immaterial as it largely was within Congress during the Watergate hearings culminating in the Articles of Impeachment of Richard M. Nixon.

    A politically activist president and an obliging Democrat controlled Senate has corrupted the process for reestablishing and rectifying the Separation of Powers. This is the essence of Constitutional gridlock. Political opportunism has run roughshod over statesmanship.

    One should not take for granted that it requires a complete takeover of both houses in order to impeach the president. But in this heighten state of partisanship it is likely essential.

Trackbacks

  1. […] Angelo Codevilla writes that President Obama’s flaunting of impeachment threats “…sets up the alternative between the unfettered power of any president supported by a Senate majority and, on the other hand, the unfettered power of any Congressional majority coherent enough to remove presidents politically unpalatable to it. Either way, Obama is opening the door to the partisan erasure of the distinction between executive and legislati….” […]

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