Impeachment- a Citizen's Guide

by Cass R Sunstein

  The most revealing words are those prohibiting titles of nobility. No kings, no queens, and no princes or princesses. The clause goes back to the Declaration of Independence, which announced that “all men are created equal.”

  In the early 1980s, I was privileged to serve as law clerk for Justice Thurgood Marshall, one of the greatest lawyers and judges in American history, and an architect of the legal strategy that struck down “separate but equal” in public schools. Marshall was also irreverent, and he had a twinkle in his eye, and he was tough. He told me a story about meeting a member of British royalty, Prince Philip, who asked him, immediately after shaking hands, “Would you like to hear my opinion of lawyers?” Marshall shot back, “Would you like to hear my opinion of princes?”

  After that was established, the two got along famously. But Marshall knew all about the prohibition on titles of nobility, and his edgy response to the prince runs in the American bloodstream. It is traceable to the founding document and those events in Concord, back on April 19, 1775.

  The impeachment clause is a sibling to the titles of nobility clause. In the colonies, impeachment was used to fight royal prerogatives. It was itself a kind of shot—a mechanism by which colonial legislatures struck a blow against what they saw as illegitimate governance. After independence was won, impeachment became a republican mechanism for controlling officials who abused their authority. As the founding generation saw it, the power to get rid of the president was indispensable to avoiding a return to the monarchical heritage. But on what grounds? People strongly disagreed. The question provoked an intense and terrific debate, which produced the defining principles.

  But the tale starts well before the American colonists started to resent the idea of being ruled by a king. With respect to impeachment, we’re going to take a very brisk tour, starting with English practice, turning to the experience in the colonies, shifting to the Revolution, exploring the post-revolutionary experience, moving to the drafting of the Constitution, and concluding with the ratification debates.

  All the while, let’s think of the participants not as formal, white-haired, elderly men from history books, but as passionate, active, full of life but willing to die, and very much focused on what they were handing over to posterity. To appreciate the spirit of what we’re about to see, and the period in which the impeachment clause was drafted, remember these words spoken by Patrick Henry, on March 23, 1775:

  They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? . . .

  The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!1

  Our Radical Revolution

  We often think of the American Revolution as pretty conservative, certainly as revolutions go. The French Revolution shook the world, and so did the Russian Revolution. The American Revolution seems much milder.

  Maybe it was a matter of escaping British rule, but without fundamental changes in people’s understandings of society and politics. After all, much of American law and culture reflects our British heritage, and in many respects, our constitution draws directly on that heritage. Americans refer proudly to Anglo-American traditions. They love Shakespeare, Wordsworth, and the Beatles. Long before the Constitution, there was the Magna Carta. Were the British really so bad? Sure, the Americans didn’t want to be ruled by a king, and no taxation without representation and all that, and we had some kind of tea party in Boston—but was there such a big break?

  Yes, there was. If you study the decades that preceded the revolution, you can see the rise of republicanism everywhere, and it was a radical creed. As the American colonists understood it, republicanism entailed self-government; their objection to British rule was founded on that principle. Republicanism takes many forms, and it can be traced all the way back to Rome. But the colonists were particularly influenced by the French theorist Montesquieu, who famously divided governments into three kinds, with associated definitions, over which it is worth lingering:

  a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice.2

  The colonies came to despise both monarchy and despotism. They thought that the former often led to the latter. If you have any doubt on that count, consider the Declaration of Independence, which objects that “a long train of abuses and usurpations” from the monarchy “evinces a design to reduce” the colonies “under absolute Despotism”—which is what led to the conclusion that “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

  In the colonies, republican thinking, focused on the supreme power of the body of the people, led to fresh ideas about what governments can legitimately do. It also fueled novel uses of impeachment. More broadly, it spurred new understandings of how human beings should relate to one another, and in the process it undid established hierarchies of multiple kinds. Thurgood Marshall’s quip to Prince Philip was an outgrowth of distinctly American thinking in the last four decades of the eighteenth century.

  The best and most vivid account comes from the historian Gordon Wood, who shows that the American Revolution was social as well as political, and that it involved an explosive principle: the equal dignity of human beings.3 Wood does not say a word about impeachment, but his account is indispensable to an understanding of how that issue was resolved at the Constitutional Convention.

  In the early decades of the eighteenth century, Americans lived in a traditional society, defined by established hierarchies, which permeated people’s daily lives, even their beliefs and their self-understandings. Wood writes that “common people” were “made to recognize and feel their subordination to gentlemen,” so that those “in lowly stations . . . developed what was called a ‘down look,’” and “knew their place and willingly walked while gentlefolk rode; and as yet they seldom expressed any burning desire to change places with their betters.”4 In Wood’s account, it is impossible to “comprehend the distinctiveness of that premodern world until we appreciate the extent to which many ordinary people still accepted their own lowliness.”5 That acceptance had a political incarnation. In England, of course, national sovereignty was found in the king, and for a long time, the American subjects of the king humbly accepted that understanding.

  As late as 1760, the colonies consisted of fewer than two million people, subjects of the monarchy, living in economically underdeveloped communities, isolated from the rest of the world. They “still took for granted that society was and ought to be a hierarchy of ranks and degrees of dependency.”6

  Over the next twenty years, their whole world was turned upside down, as the monarchical view of the world crumbled. This was a revolution of everyday values as well as politics. In Wood’s words, the American Revolution was “as radical and social as any revolution in history,” producing “a new society unlike any that had ever existed anywhere in the world.”7

  It was republicanism, with its proud commitment to liberty and equality, that obliterated the premodern world. To be sure, the transformative power of republicanism could be f
elt everywhere, including in England itself. As David Hume put it, “to talk of a king as God’s vice-regent on earth, or to give him any of those magnificent titles which formerly dazzled mankind, would but excite laughter in everyone.”8 But in the American colonies, the authority of republican thinking was distinctive and especially pronounced. As the Revolution gathered steam, people were not laughing. Rule by the king wasn’t funny. In 1776, Thomas Paine described the king as “the Royal Brute” and a “wretch,” who had “the pretended title of FATHER OF HIS PEOPLE.”9 With amazement, John Adams wrote that “Idolatry to Monarchs, and servility to Aristocratical Pride, was never so totally eradicated, from so many Minds in so short a Time.”10

  David Ramsay, one of the nation’s first historians (himself captured by the British during the Revolution), marveled that Americans were transformed “from subjects to citizens,” and that was an “immense” difference, because citizens “possess sovereignty. Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others.”11 Paine put it this way: “Our style and manner of thinking have undergone a revolution more extraordinary than the political revolution of a country. We see with other eyes; we hear with other ears; and think with other thoughts, than those we formerly used.”12 As the transformation started to occur, the idea of impeachment, which originated in England but had fallen into disuse there, began to take on a whole new meaning. It became thoroughly Americanized. It turned into an instrument of popular sovereignty, an emphatically republican weapon, a mechanism by which the people might rule.

  The thinking behind the Revolution led to an attack on royalty and aristocracy, to be sure. If republicanism was about anything, it was about that. But the same thinking placed a new focus on the aspirations, the needs, and the authority of ordinary people. Hierarchies of all kinds were bound to disintegrate—not through anything like envy, but through the simple assertion, immortalized in the Declaration of Independence, that all men are created equal. As Wood puts it, “To focus, as we are today apt to do, on what the Revolution did not accomplish—highlighting and lamenting its failure to abolish slavery and change fundamentally the lot of women—is to miss the great significance of what it did accomplish: indeed, the Revolution made possible the anti-slavery and women’s rights movements of the nineteenth century and in fact all our current egalitarian thinking.”13

  In the nineteenth century, Walt Whitman, America’s poet laureate, spoke for the Revolution when he wrote, “Of Equality—as if it harm’d me, giving others the same chances and rights as myself—as if it were not indispensable to my own rights that others possess the same.”14 Bob Dylan, Whitman’s successor, put it more simply: “While preachers preach of evil fates/Teachers teach that knowledge waits/ Can lead to hundred-dollar plates/Goodness hides behind its gates/But even the president of the United States/Sometimes must haveto stand naked.”15

  The Failed Confederacy

  The Declaration of Independence was signed in 1776. Hostilities with England substantially ceased in 1781 after the Yorktown campaign, which trapped the British Army and forced the surrender of General Cornwallis. The American Revolution was formally completed in 1783 with the signing of a peace treaty with England.

  As early as the summer of 1776, the Americans started to draft a kind of constitution, which they submitted to the states in 1777. It was ratified in 1781. Only it wasn’t called a constitution at all. Its name: Articles of Confederation. That’s not an uplifting title, but it’s revealing. The nation operated as a confederation of states, each of which enjoyed a lot of independence. The Articles begin without any poetry:

  To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting. . . .

  Articles of Confederation and Perpetual Union between the states of New-Hampshire, Massachusetts-Bay, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia.

  Notice that the Articles are formed by the states and their delegates—not by We the People. Compare, if you would, the soaring start of the Constitution that followed the Articles, produced just sixteen years later:

  We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

  There’s poetry there, and plenty of substance, too. With the first seven words, you know who is in charge. A lot happened during the years that separated the two documents.

  The very first article of the Articles did give a good name to the confederacy: “the United States of America.” But the second kind of took it back: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled.”

  The Articles of Confederation were written when the colonies were fighting against King George III. The colonists were not eager to have a king of their own. But they didn’t merely dispense with monarchy. More than that, they refused to create an executive at all—which meant that there would be no one to impeach.16 The Articles did create a legislature, but a weak one. For example, it had no power to tax or to regulate commerce. There were no national courts of general jurisdiction.

  Under the Articles, the young nation, if you could call it that, was riven by discord and instability. States were at odds with one another. They failed to cooperate; protectionism was rampant. Local economies were failing. The nation could not raise revenue. To many people, the United States seemed on the verge of disintegration. A mere decade after the American Revolution, the nation’s high ideals and aspirations appeared doomed. James Madison wrote to one friend that people “unanimously agree that the existing Confederacy is tottering to its foundation,” and to another, “It is not possible that a government can last long under these circumstances.”17

  In 1786, state representatives met in Annapolis to consider commercial problems arising under the Confederation. Because so few delegates showed up (only twelve from five states), they adopted a resolution to hold a convention in Philadelphia to address the deteriorating situation. But the charge to the delegates was narrower and more modest than the ultimate product would suggest. The delegates, chosen by state legislatures (except in South Carolina, where they were chosen by the governor), were instructed “to meet at Philadelphia . . . to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”18

  The limited character of this charge raised some problems for the delegates, whose product reflected their view that it was necessary to provide not “further provisions” but an altogether novel document. Among the most important changes were the creation of an executive branch; the grant to Congress of the powers to tax and to regulate commerce; and the creation of a federal judiciary, including the Supreme Court and, if Congress chose, lower federal courts. To its defenders and to its critics, the most noteworthy feature of the new Constitution was its dramatic expansion of the national government, giving it fresh powers and authorizing both the executive and the judiciary to exercise considerable authority over the citizenry.

  For present purposes, the most important point is that when the delegates originally came to Philadelphia, the absence of an executive seemed, to essentially all of them, to be among the most glaring defects of the Articles. The United States needed someone who could speak for the nation with respect to foreign affairs. It needed someone who could execute the laws. The chief executive would need a staff, consisting of departments and agencies. By and large, it would work for him. And to
help make the new nation work, he needed to be powerful.

  Just how powerful? Excellent question.

  The Unitary Executive

  For the framers, an initial issue was structural. Should the executive branch consist of one person, or of several? Should it be unitary, or plural, with powers shared or divided among a group of people? The answers to these questions were closely connected to the debates over impeachment.

  At the Convention, James Wilson, a leading thinker who had signed the Declaration of Independence and was later appointed to the Supreme Court, argued for a unitary executive on the grounds that it would give the “most energy, dispatch and responsibility to the office.”19 With recent history firmly in mind, some of the delegates vigorously disagreed. Edmund Randolph contended that a unitary executive would be “the fetus of monarchy.”20 Hugh Williamson said it would mean that the nation would have “an elective king.”21 John Dickinson, also a leading thinker, objected that Wilson’s approach would produce an executive “not consistent with a republic” and more akin to that in Great Britain.22 The great Dickinson knew how to go for the jugular.

  Nonetheless, the delegates opted, by a vote of seven to three, for a unitary executive, as captured in these words, which have resonated through the centuries:

  The executive power shall be vested in a President of the United States of America.

  Even more than Wilson, Alexander Hamilton was a major force behind that sentence. In The Federalist, he wrote with a kind of pride: “The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate.”23 But doesn’t that sound like a kind of king? Explaining why a single magistrate would be tolerable, Hamilton immediately added: “That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever.”