The premise behind these essays is that we still have much to learn from the framers of our Constitution. In our time this is controversial, given that the framers were all male, many of them were slaveholders, and the document they drafted is now more than two centuries old.
There are those, primarily Democrats, who appear ready to jettison major features of the Constitution, such as the Electoral College, which provides for indirect election of the president, and occasionally results, as it did with Donald Trump, in a president who gains the office but did not win a numerical majority of votes cast.
For some, such as Mrs. Clinton, this is enough to render Mr. Trump illegitimate, and, surely, that feeling lies behind the unceasing attempts to tarnish the Trump Presidency, from the Russia Collusion hoax right onto the current secret impeachment proceedings.
Some have begun to understand that the impeachment effort is itself an attempt to subvert our Constitutional scheme.
Representative Andy Biggs (R-AZ), recently published an op-ed in the Washington Examiner, arguing that by proceeding in secret, Mrs. Pelosi and her designated impeachment hatchet man, Adam Schiff, are violating our Constitutional norms of due process. These violations include the fact that the president has been deprived of the right to confront witnesses, the failure to follow the Nixon and Clinton precedents of initiating impeachment proceedings by a vote of the entire membership of the House, and the failure to accord Republicans the right to summon witnesses to the closed-door hearings.
The framers understood that impeachment would be politically divisive, and by limiting impeachable offenses to “treason, bribery, or other high crimes and misdemeanors,” they sought to ensure that impeachment would not be simply a tool of a partisan majority, and that it would not be used to frustrate the will of the people. Representative Biggs quite properly believes that what is now occurring is just what the framers feared.
It is not easy to understand how a president who won the votes of an overwhelming geographical majority of the country, who has spearheaded a renaissance of employment and of the economy, who has appointed judges committed to the faithful interpretation of the Constitution, who has strengthened our military, and who has sought to ensure trade arrangements more favorable to American farmers and manufacturers, represents a danger to the republic. Surely this is something that American voters in 2020, and not a cabal of House Democrats, ought to decide.
Mrs. Pelosi defends her impeachment undertaking by noting that the Constitution is silent on the proper procedures to be followed by the House, and thus she claims complete discretion on how to proceed. She has the silent consent of her House majority, who, for their own political reasons, may wish not to go on record until further evidence is developed.
In the meantime, the American public are kept in the dark, as the party which usually trumpets transparency now shuns it.
Who has the better Constitutional argument, Mrs. Pelosi or Representative Biggs?
The framers clearly indicated, in the Preamble to the Constitution, that the reasons they were putting forth that 1787 document were “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”
Mrs. Pelosi and Mr. Schiff seem committed to a course of action that, as Congressman Biggs has urged, will have a divisive effect on the American people, and will profoundly diminish the chances of our forming a “more perfect Union,” or of maintaining “domestic Tranquility.” If due process is a matter of simple justice, the current deprivation in the impeachment proceedings of the basic rights accorded even to any criminal defendant would seem to be wrong.
The Star Chamber proceedings currently being conducted by the Democrats, and their selective leaking rather than open hearings, hardly seem consistent with historic American notions of Liberty or the promotion of the “general Welfare.”
When the Republicans moved an impeachment against President Clinton twenty years ago, Democrats claimed a horrific precedent was being set, and that Republicans were weakening the Executive Branch and thus fundamentally endangering the Constitutional principle of separation of powers. Bill Clinton had, however, obstructed justice and committed perjury. Still, if Democrats were right then, they are certainly wrong now.
It is not clear that the House will ever actually vote to impeach Donald Trump, and it still seems inconceivable that a Republican-controlled Senate will vote by a two-thirds majority to remove a successful Republican President.
Perhaps Mrs. Pelosi and Mr. Schiff are simply conducting political theater, to fire up their partisans. If so, they are irresponsibly and contemptibly endangering the American people and their Constitution.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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