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Without the People, Impeachment Fails

Constitution: House use of heavy-duty weapons is rejected, setting a precedent.

November 06, 1998|BRUCE ACKERMAN | Bruce Ackerman, professor of law and political science at Yale University, is the author of "We the People" (Harvard University Press, 1998)

It is a mistake to look upon the Constitution as if it were the exclusive creation of the Supreme Court. American history is full of great constitutional precedents created by Congress, the president and ordinary Americans at the ballot box. With this election cycle, we are well on the way to creating another.

Impeachment is only part of the story. The constitutional meaning of this election only unfolds against the background of a similar struggle, culminating in 1996. Then as now, Speaker Newt Gingrich and the House leadership searched through their constitutional armory for the most potent weapons in their struggle against the presidency. Last time, their weapon of choice was a government shutdown; this time, impeachment. Last time, they sought to cripple the president in the name of conservative economics; this time, they sought to drive him from office in the name of conservative morality.

From a constitutional point of view, these differences are less important than the similarities. While the Constitution provides the House with some very heavy weapons, they were never intended to be used as tools of ordinary government. From 16th century England to 20th century America, ultimate weapons like impeachment and fund-cutoffs have been successfully employed only on the most dire occasions, when a mobilized public was already convinced that the executive was out of control.

But the present leadership of the House has tried to convert them for a different use. Rather than waiting for an aroused public to rise up against the president, they have acted far in advance of public opinion. Both times they have used their ultimate weapons to jolt the public into action through the same technique: shock.

The government shutdown was a shock to ordinary people, who could not understand why their phone calls for government help went unanswered. The Starr report caused similar shock waves. It is not every day that we turn on the TV to find that the House of Representatives is sponsoring a prime-time pornographic newscast.

This shock treatment was not an ancillary part of the strategy. It was its aim.

Well, it hasn't worked. The House leadership said that it had learned this lesson after 1996, but apparently it did not learn it well enough. The temptations of the Starr report overwhelmed its better judgment.

Now the voters have proved to have a firmer grasp on the basic principles of our constitutional law than do their representatives. This fact is trivialized by pundits who observe that most voters were indifferent to the fate of the president as they cast their ballots. But this misses the key point. Unless the Republicans succeeded in jolting public opinion into action by means of shock therapy, their aggressive use of these weapons would be discredited. Thus, after the electoral debacle of 1996, Gingrich no longer could credibly threaten a second government shutdown in his recent budget negotiations with the president. Similarly, after the electoral debacle of 1998, the only serious question is the terms under which the impeachment process will come to an end.

The result is the construction of a constitutional precedent that will serve us well for decades to come. To see my point, imagine that the Republicans' shock tactics had succeeded in forcing the president from office and that, in 10 years, the shoe was on other foot, with a Republican president confronting a Democratic Congress. On this scenario, there is every reason to believe that the House would have used some pretext to bring its heavy weapons into play to drive the president from office. Even if this effort had proved unsuccessful, the result would have been the further weakening of the presidency and the separation of powers.

The cycle of incivility is easier to start than stop, and we have been cycling for quite a while. But now that the voters have refused to succumb to these shock tactics in two successive elections, perhaps our constitutional system may gradually regain a semblance of equilibrium.

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