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Checking the Executive Pulse: Mr. President, Where Is Thy Blush?

Impeachment: For censure to work, Clinton would need to have the capacity to feel shame.

November 19, 1998|JONATHAN TURLEY | Jonathan Turley is a professor of public interest law at George Washington University

Congress is on the brink of what may be an insurmountable legislative goal: the shaming of William Jefferson Clinton. Faced with compelling evidence of criminal acts in office, Congress has searched for some alternative to the constitutional process of impeachment. With the encouragement of the White House, some have suggested censure, the shaming of the president.

Before Congress throws a willing president into the briar patch of shame, however, it may want to consider why censure is not mentioned in any part of the Constitution or the original constitutional debates.

Shaming is, of course, nothing new in American law. At one time, American colonists used stocks, pillories, brands and other forms of shaming punishments.

While familiar with these punishments, however, the Framers never even mentioned censure as a penalty for a president or any other official. It is not difficult to understand why. The use of shame is hardly a convincing deterrent to a president contemplating criminal acts. By the time an impeachment inquiry has begun, a president has already been shamed by the public controversy. Shaming requires the disclosure, not the repetition, of information. Censure of a president in a long-standing scandal merely represents an effort to shame a president twice for the same conduct.

Shaming is also a penalty with meaningless historical value. If you would like to view the historical impact of censure by Congress, you need only remove a $20 bill from your wallet and gaze at the contented presidential image. Andrew Jackson was the only president ever censured. Jackson did not hide his contempt for the meaningless gesture and ultimately the next Congress rescinded the act.

The use of a shaming device against President Clinton is generally recognized as a rather laughable concept at this stage in his career. It is doubtful that the president's pulse would even register an increase at the very moment that members cried, "For Shame, Mr. President!"

If Clinton has one redoubtable characteristic, it is a certain immunity to shame. After years of personal scandal, our president has made shame his virtual element. This is precisely why the idea of censure is more to the liking of a James Carville than a James Madison.

Ironically, the use of shame and censure as an alternative to the constitutional process would have the greatest impact on future innocent presidents. The ones most susceptible to shame are those who have avoided shameful conduct but have been targeted by abusive legislators. The danger of creating new options in the Madisonian democracy is that they open new opportunities of abuse outside the system of checks and balances.

Few members believe that the president will be affected personally or politically by a censure by Congress. To work, this "exit strategy" requires a mutual understanding between the White House and Congress: Congress will pretend to shame the president and the president will pretend to be ashamed. The political gestures must be exaggerated like a bizarre form of constitutional Kabuki.

The president and Congress, however, may find the public searching the face of the president at that critical moment. Shame is the most difficult of emotions to replicate and the public may ask, as did Hamlet, "O shame! Where is thy blush?"

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