Post No. 10. The Sunday Evening Post, Nov. 29, 2009
By Neal Q. Herrick
While our form of government was shaped by crises, economics and political circumstances, it was also influenced by philosophers and the men who read their books. Some of our forefathers were among these readers and were determined to apply the theories of political philosophy to the formation of our government. We (and the inhabitants of many other countries) are indebted to our forefathers for their love of learning and for their ability to apply this learning to the creation of a new form of government: a government of, for and by the people. They wanted their creation to serve, to quote Hamilton in Federalist No. 9. as “the broad and solid foundation of other edifices, not less magnificent.” And it has served the world as a model. This essay comments briefly on the role of philosophy and, in particular, on the roles of Locke, Montesquieu and Bentham in helping our forefathers create the then unique government that “burst upon the world” (to borrow Lord Acton’s phrase) in 1791.
Mankind’s Political Dilemma
In order to survive, we humans must delegate some of our power to other humans. In return, these others (our civil officers) provide for our common defense and undertake those other tasks that we cannot accomplish individually. However, since power tends to corrupt, our civil officers tend to use the power we give them primarily for their own benefit rather than for ours. This is one of the basic dilemmas of human existence
In our times of hunting and wandering, we dealt with this dilemma by keeping a close eye on our tribal leaders. When they became too oppressive, we resorted to violence and put new leaders in their place. Where these revolutions were successful, we would live under the rule of our new leaders until they, in turn, became too oppressive and were overthrown. Under these arrangements, skilled and moderate leaders could remain in power for extended periods of time.
When we became more numerous and less nomadic, our leaders organized armies for our protection against other competitive tribes. Their control of these armies, unfortunately, also greatly increased their power over us. As they became more powerful, they became correspondingly more corrupt. We began to call them kings and, in order to rationalize their arbitrary and absolute power over our lives, imagined that they were descended from God and, therefore, had the divine right to oppress us (or not) as they choose.
The Age of Enlightenment and Our Revolution
Of course, many philosophies and many philosophers contributed to the intellectual climate of America in 1787. Locke, Montesquieu and Bentham seem to me to be especially relevant to the framing of our Constitution.
John Locke (1632-1704)
With the age of enlightenment, our attitude toward our relationship with our civil officers changed radically. For example, John Locke (1632-1704) attacked the idea that kings had a divine right to impose their will upon us. He argued, in The 2nd Treatise on Government, II, 6, that human beings have a natural “right to life, heath, liberty (and) possessions.” He also proposed a radical view of the purpose of government. “Political power,” he wrote, should be used “only for the public good.” Other philosophers of the period echoed Locke’s views and, gradually, ordinary people began to expect more from their leaders and from their lives.
These philosophical thoughts were necessary precursors to change. However, they left many questions to be answered. For example, how were the rights claimed by Locke to be secured on a continuing basis from both benevolent and non-benevolent leaders? Something more than a change in attitude was required. The next step was to imagine arrangements under which benevolent treatment might be secured as a right rather than as a privilege.
Baron de Montesquieu (1689-1755)
Montesquieu conceived of a specific system aimed at accomplishing this desirable state of affairs. This was “a system in which different bodies exercised legislative, executive and judicial power, and in which all these bodies were bound by the rule of law” (The Stanford Encyclopedia of Philosophy). His specific ideas about how to apply enlightenment principles came at a propitious time for us Americans. His concepts were embraced by James Madison (the “father” of our Constitution) and accepted by Madison’s fellow framers. Montesquieu posited three forms of government: the republic (which can be either democratic or aristocratic), the monarchy and the despotic government. The difference between a monarchy and a despotic government, according to Montesquieu, is that a monarch rules by law while a despot rule by his or her arbitrary will.
A Requisite Principle for Each Form of Government
Each form of government, said Montesquieu, has its own principle which must be cultivated in order to achieve success. The principle of a democratic republic is political virtue. The principle of aristocracy is moderation and the principle of monarchy is honor. The principle of despotism is fear. Montesquieu considered democracy’s need for political virtue to be a serious weakness. While the principles for aristocracy, monarchy and despotism are “natural” parts of human nature, the desire to be politically virtuous is not. It “requires a constant preference of public to private interest” (The Spirit of the Laws, 4.5) and “limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow citizens” (The Spirit of the Laws, 5.3). In non-philosophical terms, “forget it.”
Remedies for the inherent weakness of our form of government
In order to remedy this weakness, democratic governments require a supply of virtuous civil officers. In order to supply this need, Montesquieu says, “the whole power of education is required” (Spirit of the Law, 4.5). Censorship is also needed in order to preserve self-renouncing values. Further, in a democracy, according to Montesquieu, frugality should be required by law and law should also preserve an equal distribution of property among citizens (SL 4.1).). Monarchies, on the other hand, have the advantage that “unlike the virtue required by democratic republics, the desire to win honor and distinction required by monarchies comes naturally
“Experience shows us.” wrote Montesquieu, “ that every man invested with power is apt to abuse it ... it is necessary from the very nature of things that power should be a check to power" (SL 11.4).To this end, he proposed that the executive, legislative, and judicial powers of government be kept separate. Then, if one department attempts to abuse its powers, the others can check it. On the other hand, if one department holds al or several powers, there is nothing to prevent it from acting tyrannically.
Jeremy Bentham (1748-1832)
We should also be especially grateful to another, more recent, philosopher, Jeremy Bentham (1748-1832). He published his Fragments of Government in 1776, just eleven years before the framers met in Philadelphia. While Madison does not give Bentham the credit he gives Montesquieu, both the structure and the specific provisions of the Constitution seem to this citizen to reflect Bentham’s views of human nature. His utilitarian idea that “It is the greatest happiness of the greatest number that is the measure of right and wrong” (A Fragment on Government, Preface) is certainly a pillar of our Constitution. After all, what is our Constitution but a set of structures and processes designed to give the greatest happiness to the greatest number of Americans?
These words of Bentham’s bear on the central difficulty faced by the framers as they set up a government “for the people:” how could they persuade its civil officers to use their power for the people’s benefit rather than for their own? He goes on to say, “ . . . the only consequences that men are at all interested in, what are they but pain and pleasure?” (AFOG, p. 11). Simply put, civil officers, being human, choose their courses of action according to the pleasure or pain they expect to experience as a result. In order to persuade our civil officers to avoid corruption of any kind, we must persuade them that honesty will result in more pleasure and less pain than will dishonesty. Montesquieu suggests placing them in situation where they would compete with each other for power, thus preventing any one department from becoming dominant Bentham suggests that the framers seek other ways to make the self-interests of civil officers consistent with the interests of the people. As Montesquieu implies, there are people whose nature leads them to maximize their pleasure and minimize their pain by placing the public good before their own. There are also, no doubt, benevolent dictators. However, it is wiser to assume that our civil officers will not be “angels” (as Madison put it in Federalist No. 51), In this way, Bentham advised the framers to devise as many constitutional provisions as possible to increase the pleasure civil officers could anticipate as a result of good behavior along with the pain they could expect as a result of choosing to behave corruptly..
Comment
The extent to which the framer’s were guided by Locke, Montesquieu and Bentham will be discussed in a later post, to be titled The Philosophical “Bones” of Our Constitution.
Sunday, November 29, 2009
Sunday, November 22, 2009
Sen. Leahy’s Truth Commission; Promises and Pitfalls
Post No. 9. The Sunday Evening Post, Nov. 22, 2009
By Neal Herrick
Sen. Leahy is to be commended. He is one of a few Members of Congress who have not been seduced by the foolish (but politically attractive) “Let’s move on” doctrine. I have already commented on this self-serving, short-sighted, and dangerous doctrine in Sunday Evening Post No. 7 – Learning How to Fight Corruption from American History. In this Post, I will discuss some of the positive aspects of Sen. Leahy’s proposal. Then I will point out some of its pitfalls and suggest ways of avoiding them. Finally, I will comment on the “peaceful revolution” that is needed to restore truth, honesty and responsiveness to our federal government.
The positive aspects of Sen. Leahy’s Truth Commission
The strength of Sen. Leahy’s proposed Commission is that it addresses the most serious aspect of the most serious problem facing our country today. The offenses allegedly committed by Bush and Cheney are the most serious offenses that can be committed by a civil officer of the US. The executive’s usurpation of congressional and/or judiciary powers (for example, issuing signing statements and conducting illegal invasions) leads to tyranny. The exceeding of constitutional powers (for example, permitting torture) brings into play illegal powers that do not exist in our legitimate culture. It is, therefore, the most insidious of all offenses. It erodes the moral core of our originally unique and even now wonderful country. By bringing attention to the probability that these offenses occurred and that we are now threatened by their consequences, the Leahy Commission is performing a much needed service.
The pitfalls of the proposed Leahy Commission
The weaknesses of the Leahy proposal are, first, that it is partisan and, second, that it will make its report to Congress. It is partisan in that it would investigate the “delusional” offenses of Bush-Cheney, but would fail to investigate the similar offenses that were probably committed by former presidents Carter, Reagan, Bush Sr., Clinton and George W. Bush (and that are now very likely being committed by President Obama. Mr. Carter initiated our shameful war against the people of Nicaragua in 1979, Mr. Reagan seems to have played a role in Iran-Contra, Bush Sr. conducted the first Gulf war, Mr. Clinton repeatedly called down air strikes and missiles on the inhabitants of other countries, George W. Bush invaded Iraq and must be held accountable for the torturing of human beings that occurred during his presidency. Mr.Obama has continued both the war in the Middle East and the practice of issuing “signing statements. Bush-Cheney have been, no doubt, the most egregious miscreants. To limit the investigation to them, however, would forestall any constructive result. It would force half the country to make a choice between endorsing corruption and betraying their party.
The second weakness of the proposed Commission is that, since it would issue its report to Congress, the likelihood that it would result in meaningful reform is virtually nil. It is not in the interests of individual Members of Congress to take back their lost war powers from the executive nor would they dare, as a general rule, to participate in calling a halt to the presidential usurpation of their legislative powers. Only we, the people, have both the motive and the power to reform our federal government.
The only remedy is a peaceful revolution
In short, the proposed Leahy Commission might help create a public awareness of the dangers of an executive that usurps the powers of Congress and creates new and terrifying powers with no basis in our law or culture. This would be a very good thing and I support Senator Leahy wholeheartedly. However, the only remedy for governmental corruption is revolution. To expect government to reform itself is a failure of reason. The framers understood that our civil officers would be motivated by self-interest and so should we. The genius of our Constitution lies in its attempt to make the interests of our civil officers congruent with the interests of the people. Madison famously explained that our civil officers would serve us well by fighting to protect their constitutional powers, thus “supplying . . . the defect of better motives” (Federalist Paper No. 50). Since actual reform would not serve the interests of our 2,000 or so civil officers, it is nonsensical to suppose that government can reform itself. Meaningful governmental reform can be accomplished only by the people. Since violent revolutions are likely to re-create corrupt governments, what is needed in America today is a peaceful revolution – that is, a major change achieved by lawful means.
We have the motive and we have the means to reform our lawless government
Madison foresaw the time when it might “become necessary to enlarge, diminish, or new model the powers of government,” the task should “recur” to the people (Federalist No. 49). It seems re4asonable to suppose that he and his fellow-framers crafted Article V to give this sentiment effect. Hamilton says in Federalist No.80 that “There ought always to be a constitutional method of giving efficacy to constitutional provisions” Article V provides a little-noticed and never-used method of giving efficacy to the people’s ultimate power alluded to so often by the framers. While all law-making power is given to Congress in a reasonably pure republican manner, Article V makes one exception. The people are given the power to make law that defies, nullifies, adds to or changes any statute passed by Congress and signed by the president.
Acting either through state constitutional conventions or through their state legislatures, we have the supreme power to decide how our country should be governed and to instruct the three branches accordingly. This power was given us with the explicit intent that it be used, when necessary, to “enlarge, diminish or new-model” the powers of government. The framers’ acknowledgment that diminishing or new-modeling the powers of government might become necessary was prescient. They understood that, however finely crafted, our government might “run amuck.”
The alternative to action is tyranny
The fact that we have never used the power given us by Article V to initiate an anti-corruption amendment is probably due to a variety of factors. First, we are largely unaware that we possess this power. Second, the approach of tyranny is incremental. We have difficulty knowing when things have reached the point where we must act in order for our country to survive. Third, Article V gives Congress the power to decide whether a particular amendment should be decided by state legislatures or by state constitutional conventions. The list of difficulties goes on and on. However, the inevitable long-term alternative to governmental reform is tyranny – the end of the America we love - an America in name only. If Senator Leahy’s Truth Commission helps us understand the nature and the seriousness of the threat posed by our lawless government, it will have performed a valuable service.
By Neal Herrick
Sen. Leahy is to be commended. He is one of a few Members of Congress who have not been seduced by the foolish (but politically attractive) “Let’s move on” doctrine. I have already commented on this self-serving, short-sighted, and dangerous doctrine in Sunday Evening Post No. 7 – Learning How to Fight Corruption from American History. In this Post, I will discuss some of the positive aspects of Sen. Leahy’s proposal. Then I will point out some of its pitfalls and suggest ways of avoiding them. Finally, I will comment on the “peaceful revolution” that is needed to restore truth, honesty and responsiveness to our federal government.
The positive aspects of Sen. Leahy’s Truth Commission
The strength of Sen. Leahy’s proposed Commission is that it addresses the most serious aspect of the most serious problem facing our country today. The offenses allegedly committed by Bush and Cheney are the most serious offenses that can be committed by a civil officer of the US. The executive’s usurpation of congressional and/or judiciary powers (for example, issuing signing statements and conducting illegal invasions) leads to tyranny. The exceeding of constitutional powers (for example, permitting torture) brings into play illegal powers that do not exist in our legitimate culture. It is, therefore, the most insidious of all offenses. It erodes the moral core of our originally unique and even now wonderful country. By bringing attention to the probability that these offenses occurred and that we are now threatened by their consequences, the Leahy Commission is performing a much needed service.
The pitfalls of the proposed Leahy Commission
The weaknesses of the Leahy proposal are, first, that it is partisan and, second, that it will make its report to Congress. It is partisan in that it would investigate the “delusional” offenses of Bush-Cheney, but would fail to investigate the similar offenses that were probably committed by former presidents Carter, Reagan, Bush Sr., Clinton and George W. Bush (and that are now very likely being committed by President Obama. Mr. Carter initiated our shameful war against the people of Nicaragua in 1979, Mr. Reagan seems to have played a role in Iran-Contra, Bush Sr. conducted the first Gulf war, Mr. Clinton repeatedly called down air strikes and missiles on the inhabitants of other countries, George W. Bush invaded Iraq and must be held accountable for the torturing of human beings that occurred during his presidency. Mr.Obama has continued both the war in the Middle East and the practice of issuing “signing statements. Bush-Cheney have been, no doubt, the most egregious miscreants. To limit the investigation to them, however, would forestall any constructive result. It would force half the country to make a choice between endorsing corruption and betraying their party.
The second weakness of the proposed Commission is that, since it would issue its report to Congress, the likelihood that it would result in meaningful reform is virtually nil. It is not in the interests of individual Members of Congress to take back their lost war powers from the executive nor would they dare, as a general rule, to participate in calling a halt to the presidential usurpation of their legislative powers. Only we, the people, have both the motive and the power to reform our federal government.
The only remedy is a peaceful revolution
In short, the proposed Leahy Commission might help create a public awareness of the dangers of an executive that usurps the powers of Congress and creates new and terrifying powers with no basis in our law or culture. This would be a very good thing and I support Senator Leahy wholeheartedly. However, the only remedy for governmental corruption is revolution. To expect government to reform itself is a failure of reason. The framers understood that our civil officers would be motivated by self-interest and so should we. The genius of our Constitution lies in its attempt to make the interests of our civil officers congruent with the interests of the people. Madison famously explained that our civil officers would serve us well by fighting to protect their constitutional powers, thus “supplying . . . the defect of better motives” (Federalist Paper No. 50). Since actual reform would not serve the interests of our 2,000 or so civil officers, it is nonsensical to suppose that government can reform itself. Meaningful governmental reform can be accomplished only by the people. Since violent revolutions are likely to re-create corrupt governments, what is needed in America today is a peaceful revolution – that is, a major change achieved by lawful means.
We have the motive and we have the means to reform our lawless government
Madison foresaw the time when it might “become necessary to enlarge, diminish, or new model the powers of government,” the task should “recur” to the people (Federalist No. 49). It seems re4asonable to suppose that he and his fellow-framers crafted Article V to give this sentiment effect. Hamilton says in Federalist No.80 that “There ought always to be a constitutional method of giving efficacy to constitutional provisions” Article V provides a little-noticed and never-used method of giving efficacy to the people’s ultimate power alluded to so often by the framers. While all law-making power is given to Congress in a reasonably pure republican manner, Article V makes one exception. The people are given the power to make law that defies, nullifies, adds to or changes any statute passed by Congress and signed by the president.
Acting either through state constitutional conventions or through their state legislatures, we have the supreme power to decide how our country should be governed and to instruct the three branches accordingly. This power was given us with the explicit intent that it be used, when necessary, to “enlarge, diminish or new-model” the powers of government. The framers’ acknowledgment that diminishing or new-modeling the powers of government might become necessary was prescient. They understood that, however finely crafted, our government might “run amuck.”
The alternative to action is tyranny
The fact that we have never used the power given us by Article V to initiate an anti-corruption amendment is probably due to a variety of factors. First, we are largely unaware that we possess this power. Second, the approach of tyranny is incremental. We have difficulty knowing when things have reached the point where we must act in order for our country to survive. Third, Article V gives Congress the power to decide whether a particular amendment should be decided by state legislatures or by state constitutional conventions. The list of difficulties goes on and on. However, the inevitable long-term alternative to governmental reform is tyranny – the end of the America we love - an America in name only. If Senator Leahy’s Truth Commission helps us understand the nature and the seriousness of the threat posed by our lawless government, it will have performed a valuable service.
Sunday, November 15, 2009
Impeaching Bush-Cheney is not a good idea
Post No. 8, The Sunday Evening Post, Nov. 15, 2009
By Neal Q. Herrick
There is no statute of limitations on impeachment. Further. Sen. Leahy, Rep. Conyers and many others have made a strong case that it is important to impeach miscreants who commit the kind of offenses committed by Bush-Cheney. It is true that they violated both their oaths of office and our Constitution and that these are the most serious crimes that civil officers can commit. But would impeaching them help or harm our chances at reforming our lawless federal government? If there were a reasonable chance of convicting and disqualifying them, it should certainly be done. However, there is no such chance. This short essay comments on the history of the impeachment provisions and suggests that – however beneficial it might be to convict and disqualify Bush and Cheney – we must first reform the impeachment provisions themselves. Trying and failing to convict and disqualify Bush and Cheney would simply strengthen the belief of civil officers that they are above the law.
Our impeachment provisions are unworkable
The framers were unanimous in their belief that we needed an impartial (and, therefore, a judicial) impeachment process. Hamilton emphasized its “judicial character” and the need that it be regulated by “the real demonstrations of innocence or guilt” and not by “the comparative strength of parties” (Federalist Paper No. 65). He and his fellow framers thought our freedom depended on our ability to keep our civil officers within the bounds of our law. They discussed the matter at length and agreed on our present impeachment provisions. Time and events, however, have made the impeachment process they agreed upon political and legislative rather than impartial and judicial. This has rendered it, not only useless, but a danger to our Republic. While the impeachment provisions are consistent with the letter of the Constitution, they are inconsistent with its tenor.
The Bush-Cheney exploits are symptoms – not causes
First, we must realize that our present predicament has not been caused by either political parties or by presidents. It has been caused by what has proved to be a near-fatal flaw in our Constitution. It is now time to go back to basics. Let’s consider the intent of the impeachment provisions, their history, and our present predicament. These considerations might well shed some light on the question of what we should do about presidents and other civil officers who exceed their constitutional powers. More specifically, it might help us think about whether attempting to impeach Mr. Bush and Mr. Cheney would be a good idea. .
Our freedom depends on dealing with causes, not symptoms
James Monroe. in The People, the Sovereigns (p. 16), called the impeachment provisions the “mainspring of the great machine of government” and “the pivot on which it turns,” (reference) The framers intended this “pivot” to establish a judicial process that would deter our presidents, members of Congress, federal judges and subordinate members of the executive branch from violating the Constitution and otherwise breaking the law. They explicitly declared that impeachment, removal and disqualification should be impartial judicial judgments. They should be arrived at, neither by the people nor by their elected representatives, but by an impartial court of law. Civil officers should not be impeached because they make mistakes or because we disagree with their policies. Framer James Iredell of North Carolina said, “God forbid that a man . . . should be punished for want of judgment.” Civil officers should be impeached and removed for “treason, bribery, or other high crimes and misdemeanors.”
We must reform impeachment if we are to deter executive usurpation
The most serious impeachable offenses are those committed in violation of our supreme law (the Constitution) and those that attack our system of statutory law. The former offenses would include treason and the usurping, abdicating or exceeding of constitutionally assigned powers. The latter would include bribery, perjury, and the obstruction of justice. Preventing the former offenses would maintain our balance of powers, thus forestalling tyranny. Preventing the latter offenses would strengthen the integrity of all three branches of government, thus assuring us of a Congress and president that respond to the needs of the people – as well as assuring us of an impartial judiciary. Madison wrote, during Washington’s presidency, that the “wisest” part of the Constitution was “the clause that confides the question of war and peace to the legislature, and not to the executive department.” He continued “In war, our public treasures are to be unlocked; and is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed.” (quoted in Fisher’s Presidential War Power, 1995). Clearly, any action that conflicts with Congress’s power to declare war is an impeachable offense of the first waters.
The way impeachment has (not) worked in the past
The framers assigned our most critical judicial power (the power to try impeachments) to the body of government they believed would have the greatest credibility and the greatest capacity for rendering impartial justice. There were only two non-elective bodies available: the Supreme Court and the Senate. They chose the Senate. The Senate was both credible and impartial until the 1830’s. During that decade it became de facto politicized.
In 1846, Polk precipitated a war with Mexico, thus usurping Congress’s war powers. He was not impeached. In 1854, Pierce followed the precedent set by Polk and bombarded Greytown, Nicaragua for failing to respect the dignity of our Central American ambassador. Instead of impeaching Pierce, Congress commended him. In 1868 Andrew Johnson was impeached for taking it upon himself to fire his secretary of war without seeking a court interpretation of the Tenure of Office Act. He was acquitted. In 1913, the 17th Amendment made the Senate elective, thus putting its seal of approval on the politicization of that body. In 1999, Mr. Clinton was acquitted of perjury and obstruction by 100 senators who admitted (some explicitly, some tacitly) to a virtually unanimous belief in his guilt. At this point, the impeachment provisions lost any remnants of their deterrent value
Although the framers intended the impeachment provisions for all Members of Congress and
subordinate officers of the executive, as well as for the president, vice-president and federal
judges, only one senator and one cabinet officer have ever been impeached. Neither was removed. Only seven judges have been convicted in our 227 year history.
Our predicament in 2009
Impeachment was designed to be swift and certain, with neither the due process nor the technicalities that encumber criminal law. In recent years, impeachment has become virtually useless and there has been nothing to stand between us and chaos but criminal law. Since criminal law is slow, uncertain, and subject to presidential pardons, our president is now out-of-control and we have no way to keep our Congress honest. This governmental lawlessness knows neither party nor person. Democrat Clinton was more promiscuous in his use of air strikes and missiles than was Republican Bush. Mr Bush, however, laid force on with a heavier hand. Democratic and Republican members of Congress are equally inclined to venal corruption.
While Mr. Obama seems less inclined to lawlessness than were his predecessors, our governmental culture of lawlessness has not been created by presidents and cannot be solved by presidents.
Charles Pinckney of South Carolina said that, if his fellow framers were to extend the powers of the president to peace and war, it would “render the executive a monarchy, of the worst kind, to with an elective one.” We now fit that description. Congress has abdicated its powers of peace and war and Mr. Bush has usurped them. The framers said that it would be up to the people to keep their government honest. Iredell wrote that, “. . the only real security of liberty in any country is the jealousy and circumspection of the people.” Yet the FBI finds $80,000 in the freezer of William Jefferson (D-LA) and he still sits in our House of Representatives. Even when civil officers are indicted and convicted, as in the Espy case under Mr. Clinton and in the Libby case under Mr. G.W. Bush, they receive presidential pardons.
We the people caused the problem and we the people must solve it
Because we, the people, have failed to exercise “jealousy and circumspection,” the civil officers of Congress and the executive branch, including presidents past and present, have committed the full gamut of impeachable offenses and remain unscathed, impervious and arrogant. This can be easily explained. The power to keep the civil officers of our government honest is in the hands of (Congress) a body that is incapable of using it against other branches of government and disinclined to use it against its own members.
Clearly, an elective body is incapable of rendering impartial justice. Just as clearly, Congress will not voluntarily surrender the power to try impeachments – lest that power be used against its members. Yet, almost a century after the Senate became officially elective, we, the people, have done nothing to “jealously” guard ourselves against this threat to our liberty. Instead we propose still another political means of controlling our president or suggest that another Clinton-style impeachment and acquittal (this time involving Mr. Bush) would keep our future presidents in line.
Unless the root cause of our governmental lawlessness is removed, all three branches of our government will be free to continue acting lawlessly: both exceeding their constitutional powers and yielding to the temptations of venal corruption. This root cause is that we have not amended our impeachment provisions to take into account the politicization of the Senate. We need a 28th amendment transferring the power to try non-judicial impeachments from the Senate to the judiciary. This would put teeth in the impeachment provisions and deter our civil officers from committing impeachable offenses. Without such a system, we are on a slippery slope leading to tyranny and venal corruption at all levels of our society..
Conclusions
A constitutional amendment is needed to transfer the power to try impeached Members of Congress and civil officers of the executive to the Supreme Court and to set strict rules for impeachments and impeachment trials. . Since Members of Congress and other civil officers would naturally oppose such an amendment, we cannot rely on Congress to propose it. Fortunately, the framers provided us with an alternative path. Article V empowers state legislatures (or state conventions) to amend the Constitution over the objections of Congress. In this way, the framers anticipated our present dilemma. In short, it is up to us to persuade our state legislators to act under Article V. Given the natural opposition of the federal government to any genuine reform and given the lack of any interest in changing the status quo on the part of the establishment media, this task falls upon the shoulders of grass roots America. University students calling for a 28th Amendment (supported by a coalition of churches, non-governmental organizations, and community media) could provide the spark and the energy for a reform movement. For a book-length discussion of power, corruption and society in America, see After Patrick Henry: A Second American Revolution, Black Rose Books, 2009.
By Neal Q. Herrick
There is no statute of limitations on impeachment. Further. Sen. Leahy, Rep. Conyers and many others have made a strong case that it is important to impeach miscreants who commit the kind of offenses committed by Bush-Cheney. It is true that they violated both their oaths of office and our Constitution and that these are the most serious crimes that civil officers can commit. But would impeaching them help or harm our chances at reforming our lawless federal government? If there were a reasonable chance of convicting and disqualifying them, it should certainly be done. However, there is no such chance. This short essay comments on the history of the impeachment provisions and suggests that – however beneficial it might be to convict and disqualify Bush and Cheney – we must first reform the impeachment provisions themselves. Trying and failing to convict and disqualify Bush and Cheney would simply strengthen the belief of civil officers that they are above the law.
Our impeachment provisions are unworkable
The framers were unanimous in their belief that we needed an impartial (and, therefore, a judicial) impeachment process. Hamilton emphasized its “judicial character” and the need that it be regulated by “the real demonstrations of innocence or guilt” and not by “the comparative strength of parties” (Federalist Paper No. 65). He and his fellow framers thought our freedom depended on our ability to keep our civil officers within the bounds of our law. They discussed the matter at length and agreed on our present impeachment provisions. Time and events, however, have made the impeachment process they agreed upon political and legislative rather than impartial and judicial. This has rendered it, not only useless, but a danger to our Republic. While the impeachment provisions are consistent with the letter of the Constitution, they are inconsistent with its tenor.
The Bush-Cheney exploits are symptoms – not causes
First, we must realize that our present predicament has not been caused by either political parties or by presidents. It has been caused by what has proved to be a near-fatal flaw in our Constitution. It is now time to go back to basics. Let’s consider the intent of the impeachment provisions, their history, and our present predicament. These considerations might well shed some light on the question of what we should do about presidents and other civil officers who exceed their constitutional powers. More specifically, it might help us think about whether attempting to impeach Mr. Bush and Mr. Cheney would be a good idea. .
Our freedom depends on dealing with causes, not symptoms
James Monroe. in The People, the Sovereigns (p. 16), called the impeachment provisions the “mainspring of the great machine of government” and “the pivot on which it turns,” (reference) The framers intended this “pivot” to establish a judicial process that would deter our presidents, members of Congress, federal judges and subordinate members of the executive branch from violating the Constitution and otherwise breaking the law. They explicitly declared that impeachment, removal and disqualification should be impartial judicial judgments. They should be arrived at, neither by the people nor by their elected representatives, but by an impartial court of law. Civil officers should not be impeached because they make mistakes or because we disagree with their policies. Framer James Iredell of North Carolina said, “God forbid that a man . . . should be punished for want of judgment.” Civil officers should be impeached and removed for “treason, bribery, or other high crimes and misdemeanors.”
We must reform impeachment if we are to deter executive usurpation
The most serious impeachable offenses are those committed in violation of our supreme law (the Constitution) and those that attack our system of statutory law. The former offenses would include treason and the usurping, abdicating or exceeding of constitutionally assigned powers. The latter would include bribery, perjury, and the obstruction of justice. Preventing the former offenses would maintain our balance of powers, thus forestalling tyranny. Preventing the latter offenses would strengthen the integrity of all three branches of government, thus assuring us of a Congress and president that respond to the needs of the people – as well as assuring us of an impartial judiciary. Madison wrote, during Washington’s presidency, that the “wisest” part of the Constitution was “the clause that confides the question of war and peace to the legislature, and not to the executive department.” He continued “In war, our public treasures are to be unlocked; and is the executive hand which is to dispense them. In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed.” (quoted in Fisher’s Presidential War Power, 1995). Clearly, any action that conflicts with Congress’s power to declare war is an impeachable offense of the first waters.
The way impeachment has (not) worked in the past
The framers assigned our most critical judicial power (the power to try impeachments) to the body of government they believed would have the greatest credibility and the greatest capacity for rendering impartial justice. There were only two non-elective bodies available: the Supreme Court and the Senate. They chose the Senate. The Senate was both credible and impartial until the 1830’s. During that decade it became de facto politicized.
In 1846, Polk precipitated a war with Mexico, thus usurping Congress’s war powers. He was not impeached. In 1854, Pierce followed the precedent set by Polk and bombarded Greytown, Nicaragua for failing to respect the dignity of our Central American ambassador. Instead of impeaching Pierce, Congress commended him. In 1868 Andrew Johnson was impeached for taking it upon himself to fire his secretary of war without seeking a court interpretation of the Tenure of Office Act. He was acquitted. In 1913, the 17th Amendment made the Senate elective, thus putting its seal of approval on the politicization of that body. In 1999, Mr. Clinton was acquitted of perjury and obstruction by 100 senators who admitted (some explicitly, some tacitly) to a virtually unanimous belief in his guilt. At this point, the impeachment provisions lost any remnants of their deterrent value
Although the framers intended the impeachment provisions for all Members of Congress and
subordinate officers of the executive, as well as for the president, vice-president and federal
judges, only one senator and one cabinet officer have ever been impeached. Neither was removed. Only seven judges have been convicted in our 227 year history.
Our predicament in 2009
Impeachment was designed to be swift and certain, with neither the due process nor the technicalities that encumber criminal law. In recent years, impeachment has become virtually useless and there has been nothing to stand between us and chaos but criminal law. Since criminal law is slow, uncertain, and subject to presidential pardons, our president is now out-of-control and we have no way to keep our Congress honest. This governmental lawlessness knows neither party nor person. Democrat Clinton was more promiscuous in his use of air strikes and missiles than was Republican Bush. Mr Bush, however, laid force on with a heavier hand. Democratic and Republican members of Congress are equally inclined to venal corruption.
While Mr. Obama seems less inclined to lawlessness than were his predecessors, our governmental culture of lawlessness has not been created by presidents and cannot be solved by presidents.
Charles Pinckney of South Carolina said that, if his fellow framers were to extend the powers of the president to peace and war, it would “render the executive a monarchy, of the worst kind, to with an elective one.” We now fit that description. Congress has abdicated its powers of peace and war and Mr. Bush has usurped them. The framers said that it would be up to the people to keep their government honest. Iredell wrote that, “. . the only real security of liberty in any country is the jealousy and circumspection of the people.” Yet the FBI finds $80,000 in the freezer of William Jefferson (D-LA) and he still sits in our House of Representatives. Even when civil officers are indicted and convicted, as in the Espy case under Mr. Clinton and in the Libby case under Mr. G.W. Bush, they receive presidential pardons.
We the people caused the problem and we the people must solve it
Because we, the people, have failed to exercise “jealousy and circumspection,” the civil officers of Congress and the executive branch, including presidents past and present, have committed the full gamut of impeachable offenses and remain unscathed, impervious and arrogant. This can be easily explained. The power to keep the civil officers of our government honest is in the hands of (Congress) a body that is incapable of using it against other branches of government and disinclined to use it against its own members.
Clearly, an elective body is incapable of rendering impartial justice. Just as clearly, Congress will not voluntarily surrender the power to try impeachments – lest that power be used against its members. Yet, almost a century after the Senate became officially elective, we, the people, have done nothing to “jealously” guard ourselves against this threat to our liberty. Instead we propose still another political means of controlling our president or suggest that another Clinton-style impeachment and acquittal (this time involving Mr. Bush) would keep our future presidents in line.
Unless the root cause of our governmental lawlessness is removed, all three branches of our government will be free to continue acting lawlessly: both exceeding their constitutional powers and yielding to the temptations of venal corruption. This root cause is that we have not amended our impeachment provisions to take into account the politicization of the Senate. We need a 28th amendment transferring the power to try non-judicial impeachments from the Senate to the judiciary. This would put teeth in the impeachment provisions and deter our civil officers from committing impeachable offenses. Without such a system, we are on a slippery slope leading to tyranny and venal corruption at all levels of our society..
Conclusions
A constitutional amendment is needed to transfer the power to try impeached Members of Congress and civil officers of the executive to the Supreme Court and to set strict rules for impeachments and impeachment trials. . Since Members of Congress and other civil officers would naturally oppose such an amendment, we cannot rely on Congress to propose it. Fortunately, the framers provided us with an alternative path. Article V empowers state legislatures (or state conventions) to amend the Constitution over the objections of Congress. In this way, the framers anticipated our present dilemma. In short, it is up to us to persuade our state legislators to act under Article V. Given the natural opposition of the federal government to any genuine reform and given the lack of any interest in changing the status quo on the part of the establishment media, this task falls upon the shoulders of grass roots America. University students calling for a 28th Amendment (supported by a coalition of churches, non-governmental organizations, and community media) could provide the spark and the energy for a reform movement. For a book-length discussion of power, corruption and society in America, see After Patrick Henry: A Second American Revolution, Black Rose Books, 2009.
Sunday, November 8, 2009
What recent history tells us about fighting corruption
Post No. 7: The Sunday Evening Post, Nov. 8, 2009
. . . people and governments never have learned anything from history,
Georg Wilhelm Friedrich Hegel. 1832.
There are reasons we never learn anything positive from history. One reason is that we and our leaders are addicted to “moving on” from corrupt or questionable behavior on the parts of our civil officers. This guarantees that neither we nor our other civil officers will learn anything positive from the miscreants corrupt behavior. Instead, we learn to be cynical about governmental corruption. Our leaders, for their part, learn that, even if they get caught usurping power or peddling influence, they have little to fear from either impeachment or the criminal courts. The only way we can begin learning positive lessons form history is to stop “moving on.” We must begin to hold our civil officers accountable for their unconstitutional and felonious behavior.
Some examples of “moving on”
Three recent examples of “moving on” should be instructive. First, when asked where he stood on impeaching George W. Bush and Dick Cheney, Mr. Obama said he favored “moving on..” Second, the South Carolina General Assembly has evidently decided to “move on” past Governor Sanford’s alleged illegal use of state aircraft. Jim Davenport, of the Associated Press, wrote on Oct.27 of this year that SC House Speaker Harrell “turned aside an impeachment resolution,” Third, University of Louisville President James Ramsey says it is time to “move on” with basketball coach Rick Pitino, who he described as “our guy.” The circumstances are different in each case. Bush and Cheney are former civil officers of the federal government who are alleged to have exceeded their constitutional powers. Governor Sanford of South Carolina is alleged to have violated a state law. Ramsey is a public official of the State of Kentucky who is, in my opinion, failing to perform his most important duty: that of setting an example of principled behavior for his students. There is, however, a common thread. In all three instances, the rich and powerful are getting a free pass.
A comment on impeaching Bush-Cheney
The free pass issued Bush and Cheney by the House is probably the lesser of two evils. Until the power to try impeachments is transferred to the judiciary, conviction and disqualification are virtually impossible. It is highly probable that either the House would fail to impeach the miscreants or the Senate would fail to convict. Either result would strengthen the executive branch, foster a disdain for the federal Constitution on the part of other civil officers, and lead us further down the slippery slope to tyranny. A wiser course of action would be for us to amend the impeachment provisions of our federal Constitution. Among other things, this amendment would transfer the power to try impeachments to the judiciary making it more likely that federal impeachment trials would render impartial justice.
A comment on impeaching Gov. Sanford
The South Carolina House may yet redeem itself. Impeachment, removal and disqualification of Governor Sanford would teach the people of SC that their government honors state law (Sec. 16-13-230 states that a “person who commits a breach of trust with a fraudulent intent is guilty of larceny). It would also teach other SC civil officers the wisdom of abiding by the law. This is unlikely, however, since Art. XV, Sec. 2 of the SC Constitution follows the federal Constitution in giving the power to try impeachments to the Senate. The South Carolina provisions are further weakened by failing to include the power to disqualify impeachment defendants from holding future state offices. Thus the SC law lacks what are arguably the most powerful sanctions available to deter impeachable behavior. It is also noteworthy that the South Carolina Constitution does not provide South Carolinians with the “constitutional road” for initiating amendments that Madison said (in Federalist No. 49) “should be marked out and kept open.” In South Carolina the General Assembly initiates all proposed amendments and all proposals for constitutional conventions. The people’s role is limited to voting on these matters once they have been placed on the ballot. In short, the SC Constitution contradicts itself. After stating in Article I, Sec. 1 that “All Political power is vested in and derived from the people only,” Article XVI, Sec. 1 limits the people to a palliative vote on amendments after their government has defined the issues to be voted on. The people’s road to amend the SC Constitution has been neither “marked” nor “kept open.”
A comment on the Ramsey case
The President of the University of Louisville is not included among the “constitutional state officers” listed in Sec. 91 of the Kentucky Constitution. He is neither impeachable nor indictable. Nevertheless, Mr. Ramsey is a prime example of Hamilton’s contention (in Federalist No. 61) that “there is a contagion in example.” Sports at the university level have become legally corrupt. Universities place the importance of winning games (and thereby increasing revenue) above the importance of setting their students examples of institutions that value integrity and education above sports success and money. The unlikely possibility that some sports revenue may be used for academic purposes is not material. Education in state-supported universities should not be dependent on their sponsorship of semi-professional sports teams for its funding. Ramsey has decided to “move on” from the responsibility for behaving in an exemplary manner that is placed upon him by his job. This places a responsibility to set matters straight squarely on the shoulders of the University Of Louisville Board Of Trustees.
Let’s begin with a 28th Amendment
Even if it were possible to bring the Bush-Cheney impeachment to a vote in the House, they would almost certainly be acquitted in the Senate and this would be counter-productive. Unless we live in South Carolina, there isn’t much you and I can do to get Gov. Sanford impeached. Further, even if he were impeached, he would no doubt be acquitted in a “political” trial held by the NC Senate. As for Ramsey, we can only hope that the Board of Trustees recognizes its accountability for the University of Louisville’s institutional ethics.
What, then, can you and I do about our country’s tendency to “move on” from unlawful and unethical behavior? The answer is that we can write or call our state representatives and senators in support of a 28th “anti-corruption” amendment to our federal Constitution. Art. V gives them the power of setting standards for our federal civil officers by means of a constitutional amendment. Reforming our federal government is a strategically sound way to attack the “contagion” of corruption to other levels of government and institutions of society. For a book-length treatment of power, corruption and society, see After Patrick Henry: a second American revolution.
. . . people and governments never have learned anything from history,
Georg Wilhelm Friedrich Hegel. 1832.
There are reasons we never learn anything positive from history. One reason is that we and our leaders are addicted to “moving on” from corrupt or questionable behavior on the parts of our civil officers. This guarantees that neither we nor our other civil officers will learn anything positive from the miscreants corrupt behavior. Instead, we learn to be cynical about governmental corruption. Our leaders, for their part, learn that, even if they get caught usurping power or peddling influence, they have little to fear from either impeachment or the criminal courts. The only way we can begin learning positive lessons form history is to stop “moving on.” We must begin to hold our civil officers accountable for their unconstitutional and felonious behavior.
Some examples of “moving on”
Three recent examples of “moving on” should be instructive. First, when asked where he stood on impeaching George W. Bush and Dick Cheney, Mr. Obama said he favored “moving on..” Second, the South Carolina General Assembly has evidently decided to “move on” past Governor Sanford’s alleged illegal use of state aircraft. Jim Davenport, of the Associated Press, wrote on Oct.27 of this year that SC House Speaker Harrell “turned aside an impeachment resolution,” Third, University of Louisville President James Ramsey says it is time to “move on” with basketball coach Rick Pitino, who he described as “our guy.” The circumstances are different in each case. Bush and Cheney are former civil officers of the federal government who are alleged to have exceeded their constitutional powers. Governor Sanford of South Carolina is alleged to have violated a state law. Ramsey is a public official of the State of Kentucky who is, in my opinion, failing to perform his most important duty: that of setting an example of principled behavior for his students. There is, however, a common thread. In all three instances, the rich and powerful are getting a free pass.
A comment on impeaching Bush-Cheney
The free pass issued Bush and Cheney by the House is probably the lesser of two evils. Until the power to try impeachments is transferred to the judiciary, conviction and disqualification are virtually impossible. It is highly probable that either the House would fail to impeach the miscreants or the Senate would fail to convict. Either result would strengthen the executive branch, foster a disdain for the federal Constitution on the part of other civil officers, and lead us further down the slippery slope to tyranny. A wiser course of action would be for us to amend the impeachment provisions of our federal Constitution. Among other things, this amendment would transfer the power to try impeachments to the judiciary making it more likely that federal impeachment trials would render impartial justice.
A comment on impeaching Gov. Sanford
The South Carolina House may yet redeem itself. Impeachment, removal and disqualification of Governor Sanford would teach the people of SC that their government honors state law (Sec. 16-13-230 states that a “person who commits a breach of trust with a fraudulent intent is guilty of larceny). It would also teach other SC civil officers the wisdom of abiding by the law. This is unlikely, however, since Art. XV, Sec. 2 of the SC Constitution follows the federal Constitution in giving the power to try impeachments to the Senate. The South Carolina provisions are further weakened by failing to include the power to disqualify impeachment defendants from holding future state offices. Thus the SC law lacks what are arguably the most powerful sanctions available to deter impeachable behavior. It is also noteworthy that the South Carolina Constitution does not provide South Carolinians with the “constitutional road” for initiating amendments that Madison said (in Federalist No. 49) “should be marked out and kept open.” In South Carolina the General Assembly initiates all proposed amendments and all proposals for constitutional conventions. The people’s role is limited to voting on these matters once they have been placed on the ballot. In short, the SC Constitution contradicts itself. After stating in Article I, Sec. 1 that “All Political power is vested in and derived from the people only,” Article XVI, Sec. 1 limits the people to a palliative vote on amendments after their government has defined the issues to be voted on. The people’s road to amend the SC Constitution has been neither “marked” nor “kept open.”
A comment on the Ramsey case
The President of the University of Louisville is not included among the “constitutional state officers” listed in Sec. 91 of the Kentucky Constitution. He is neither impeachable nor indictable. Nevertheless, Mr. Ramsey is a prime example of Hamilton’s contention (in Federalist No. 61) that “there is a contagion in example.” Sports at the university level have become legally corrupt. Universities place the importance of winning games (and thereby increasing revenue) above the importance of setting their students examples of institutions that value integrity and education above sports success and money. The unlikely possibility that some sports revenue may be used for academic purposes is not material. Education in state-supported universities should not be dependent on their sponsorship of semi-professional sports teams for its funding. Ramsey has decided to “move on” from the responsibility for behaving in an exemplary manner that is placed upon him by his job. This places a responsibility to set matters straight squarely on the shoulders of the University Of Louisville Board Of Trustees.
Let’s begin with a 28th Amendment
Even if it were possible to bring the Bush-Cheney impeachment to a vote in the House, they would almost certainly be acquitted in the Senate and this would be counter-productive. Unless we live in South Carolina, there isn’t much you and I can do to get Gov. Sanford impeached. Further, even if he were impeached, he would no doubt be acquitted in a “political” trial held by the NC Senate. As for Ramsey, we can only hope that the Board of Trustees recognizes its accountability for the University of Louisville’s institutional ethics.
What, then, can you and I do about our country’s tendency to “move on” from unlawful and unethical behavior? The answer is that we can write or call our state representatives and senators in support of a 28th “anti-corruption” amendment to our federal Constitution. Art. V gives them the power of setting standards for our federal civil officers by means of a constitutional amendment. Reforming our federal government is a strategically sound way to attack the “contagion” of corruption to other levels of government and institutions of society. For a book-length treatment of power, corruption and society, see After Patrick Henry: a second American revolution.
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