Each generation, and each Congress in every generation, cannot escape responsibility for making the judgments required by the Constitution in light of the actual circumstances they experience. As with all truly practical endeavors, this is not a matter of general definitions that can be devised beforehand, to be adhered to in some mechanical way. It’s a matter of trial and error, with results that must be judged over time, in light of experience.
This reasonable train of thought has important implications for our understanding of the Constitution’s provisions for impeachment and trial. The first and most of these is the realization that the distinction between the two (impeachment and trial) has to be taken seriously. Whether from ignorance, or a deficiency of courage and prudential judgment, the current crop of politicos lump them together, in order to pretend that impeachment should never occur unless and until it’s certain that trial will result in a guilty verdict. But since our understanding of high crimes and misdemeanors is a matter of experience, involving trial and error, how can that experience be developed without letting trials take place. We pretend to be a generation government by the rational methods of empirical science. But what science dares to pretend that its conclusions are valid except on the basis of data carefully observed in the course of actual experience, for which “experiment” is just another word?
In this respect, impeachment is the stage of experience in which observations give rise to an hypothesis that must then be more rigorously tried and tested. The bill of impeachment is a bill of particulars in light of which the judgment is made that observed activities or events fall into a pattern of activity. The hypothesis as an attempt to state a conclusion about what that pattern portends; to come up with a form of words that captures what makes it distinct; an expression that allows us to recognize and reproduce the pattern, sometimes only in our thought, but sometimes also (in applied sciences) in the material world.
When it comes to human affairs, of course, a distinctly human element of experience appears. It results from our capacity for self-consciousness, by which we not only experience things, but in some sense stand apart from that experience to give an account of ourselves in relation to it. We thus become the subjects of experience in a special sense, responding to it in a way that’s all our own. So if someone offers to smash our heads in we respond by giving an account of ourselves in reaction to what they propose, before the blow falls, which stones and other material things apparently do not. (I say apparently because how sense of their reaction depends so heavily on the instruments we use to measure it.)
In response to certain offers, our reaction is decidedly negative, most often because we apprehend a result that damages or otherwise denies the wholesome continuity of what we know or imagine ourselves to be. When we have that reaction more or less in common with other human beings, we take it to be characteristic of humanity. And insofar as we identify with them in this respect, we assume their reaction to such offers to be like our own. We therefore shrink within ourselves from the blow that they suffer, and protest on their behalf as we would protest if their position.
When Hamilton speaks of the “injuries done immediately to society itself”, the phrase has meaning insofar as it relies upon this common sense of experience, such that we judge particular actions in light of what we imagine to be their damaging effect in terms of the inner judgment human beings are generally are inclined to reach about them. So we recognize the norm summarized in the philosophers’ rendering of the “Golden Rule”: Do not do to others what you would not want others to do to you.”
When it comes to the use or abuse of the general powers of civil society (i.e., the powers constituted by the active participation or acquiescence of its members) this becomes a common sense that, all other things being equal, we do not want government to inflict blows and burdens upon others we would know to be unjust if they were inflicted upon us. But two things are needed to make good sense of the phrase “all things being equal”. The first is the presumption of innocence, which makes sense of the relevant notion of equality. The second is the sense of responsibility toward the society as a whole, by which all agree equally to bear the burdens and blows connected with what is necessary for its preservation and safety.
Now we come to what is perhaps the fundamental point. In order to make good the presumption of innocence (literally, harmlessness, as in posing no threat) there must be a standard for what constitutes harm (the infliction of wrongful damage). Since the founding, Americans have embraced a concept of right that raises such a standard, but in a positive way. [This week in my columns for Barbwire.com on Wednesday, and WND.com on Friday, I will discuss that standard, and its implications for the actions we need to take to thwart Obama’s ongoing challenge to the survival of Constitutional self-government in the United States.]