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Ironies of an Impeachment

October 11, 1998|Jack N. Rakove | Jack N. Rakove, a professor of American history at Stanford University, won a Pulitzer prize in history for his book, "Original Meanings: Politics and Ideas in the Making of the Constitution."

PALO ALTO — In moments of high political drama, it is no easy matter to preserve a sense of irony that, after all, may seem misplaced when so much is at stake. True, some facile ironies are already apparent in the current impeachment proceedings. We know that members of both parties will have to take positions diametrically opposite from the ones they adopted in 1974, when a Democratic Congress was hot on the trail of a Republican president. It was amusing but not surprising when Senate Majority Leader Trent Lott suggested that "bad conduct" might be an adequate definition of an impeachable offense. A quarter-century ago, as a young Republican on the House Judiciary Committee, he favored judging President Richard M. Nixon by a more rigorous standard, one that sounds suspiciously like the standard Democrats now say should be applied to President Bill Clinton.

So, too, Democrats, who then argued that the investigation of the Nixon White House had to precede the definition of impeachable offenses, now have a natural incentive to favor the opposite.

But this is not true irony. As much as we might like our officials to act with consistency when constitutional principles are at stake, that is not what the Constitution requires or its framers expected. James Madison put the crucial point in a famous passage of "The Federalist." "Ambition must be made to counteract ambition," he wrote in his brilliant explication of the American system of separated powers. "The interests of the man must be connected with the constitutional rights of the place." The system was supposed to work, in other words, by encouraging officials to ground their constitutional ideas on their obligations to their offices, not by expecting them to adhere to the same principles regardless of the positions they occupied. Constitutional consistency is the hobgoblin of small political minds.

There are, however, other genuine ironies in our current imbroglio, and examining their sources and content may provide a perspective that our aroused passions sorely need. For if a sense of the ironies of constitutional history does not provide the famous consolations that philosophy promises, it may still enable us to appreciate our predicament more fully.

Here, then, are three ironies that run deeper than the predictable reversal of partisan positions since Watergate.

Irony No. 1: Looking for guidance in Merry Old England. To resolve the current uncertainty over the extent of the impeachment power and the precise meaning of "other high crimes and misdemeanors," scholarly guns from both sides are scurrying to canvass relevant English precedents. They might not have to do so, had the framers of the Constitution been considerate enough to discuss these questions at length. But, in fact, the framers discussed the issue only twice, and during the first debate (July 20, 1787), they were still assuming the Supreme Court would try impeachments.

In the second debate, on Sept. 8, George Mason of Virginia proposed to add "maladministration" to the two other offenses, "treason" and "bribery," for which a president could be impeached. When Madison objected that this would leave the president vulnerable to continual oversight by the Senate (now the trial court for impeachment), Mason substituted "other high crimes and misdemeanors," and the convention quickly adopted his proposal. But neither Mason nor any other member explained what that meant.

Mason was deeply versed in English history, and for that reason the search for clues in English precedent and practice makes sense. Yet, it also entails some formidable risks. Though impeachment dates to the 14th century, its heyday came in the 17th century, an era of civil war, revolution, quasi-military rule, extensive corruption, recurring battles between Parliament and the Stuart crown, the execution of one king (Charles I) in 1649 and the deposition of another (James II) in 1689.

The use of impeachment by the House of Commons was one weapon in these struggles, as much a political threat as anything else. Its real purpose was to chastise officials for misbehavior or actions the Commons found insulting to its own standing. Few impeachments ended in convictions in the House of Lords, which was, and remains, the highest court in the realm. Unlike the emerging U.S. practice of impeachment, which was limited to public officials, the English practice knew no bounds. Citizens as well as officials were vulnerable, and when the House of Lords convicted, it also imposed criminal penalties, including execution.

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