The impeachment field—Ripe for the harvest

This week a major change took place at the web site that is the focus of the Pledge to Impeach mobilization.  A new number now adorns the masthead. It shows the total number of people who have signed the various petitions (many of them used as part of fundraising campaigns) calling for the impeachment of Barack Obama, updated hourly.  Even at first glance, it’s an eye-catching total, and it’s constantly growing.

A number of petitions calling for impeachment have been making the rounds, some of them for several years.  Even when you make SmallLogoLTLallowances for the fact that some people have probably signed several of the different petitions, it’s clear that hundreds of thousands of Americans support the conclusion that Barack Obama and his cohorts must be called to account for their open and ongoing assault on the U.S. Constitution, and the sovereignty of the people who ordained and established it.  It’s also likely that the ones who have done so represent many others who feel as they do, but as yet haven’t found the courage to come forward and say so.

The web tally of impeachment petitions includes about 50,000 signers of a petition at WhiteHouse.gov.  It is presented under the stock heading “We petition the Obama Administration to:”   Obviously, there’s something more than a little incongruous about this.  It’s like politely asking an armed home invader to leave your house.  It may be worth a try, but unless you have some way to back up the request, it’s more than likely that the only thing you achieve by it is to paint a bull’s eye on yourself.  This might make sense if your intention is to distract the home invaders while your family slips out of the house.)

When the situation involves civil officers who are abusing the power of the U.S. government, however, “slipping out of the house” means leaving America behind, along with decent liberty and the dignity of responsible self-government.  Moreover, the grim experience of people throughout the world during the last century hardly gives anyone reason to expect that officials bent on using government power to make war on the people that power is supposed to serve, will cease and desist just because people ask nicely.

In a profound sense it’s true to say that the whole point of the U.S. Constitution is to show respect for this intransigent fact about people who take advantage of their position to abuse government power.  As Madison put it in Federalist #51 “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”  In this respect Madison argues on behalf of the provisions of the U.S. Constitution that divide government power into different branches so that one branch cannot claim the authority tyrannically to abuse the whole power of government without meeting articulate and/or organized resistance from the others.

Where individuals are concerned, the Judicial Branch is supposed to raise articulate objections to such abuse, as authorized by the provisions of the U.S. Constitution and the laws made in pursuance thereof.  In fact, the Judiciary is meant to provide an ongoing and regular means for people to petition and seek redress of grievances under the law. Of course, the effective power of the Judiciary depends on the respect people in and outside of government have for the provisions of law, and the integrity and skill with which Judges and Justices demonstrate, by reasonable arguments, that those provisions give warrant for their decisions.

When respect for law breaks down among individuals outside of government, the Executive branch exists to restore it, by force if necessary.  But when it breaks down among the members of the Executive branch, what force can restore them to order? As he outlines the distribution of power Montesquieu saw in the British Constitution at the time,  Madison provides a clue to the answer (Federalist #47):

The entire legislature can perform no judicial act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.

The notion that “the supreme executive magistracy” is a branch of the legislature seems alien to the thinking of people accustomed to thinking of the separation of powers as it is implemented in the U.S. Constitution.  In this passage Madison is referring to the role of the British Monarch, acting as the “king in Parliament.”  But because he is discussing Montesquieu’s analysis of the British Constitution, the reference also brings to mind Montesquieu’s discussion of the whole nature of Executive power, in which he sees  judicial power as the species of executive power that deals with matters pertaining to civil law (or justice) when it comes to punishing crimes and judging the disputes of individuals.  (The Spirit of the Laws Bk.11, Ch.VI, para. 2)

When it comes to “high crimes and misdemeanors” by the President and Vice-President of the United States, the U.S. Constitution requires the Congress  to exercise this species of executive power. In case of Presidential impeachment, during the trial phase it requires, in addition, the participation of the Chief Justice of the U.S. Supreme Court.  In this respect, the impeachment/removal process has Congress exercising the power of “supreme executive magistracy” with respect to the person vested with the whole executive power of the U.S. government.  But in asserting this supremacy, on what force does Congress rely to assure execution of its judgment?

According to its sixth Article, the U.S. Constitution and the laws made in pursuance thereof are the Supreme Law of the Land.  With respect to lawmaking, Congress is vested with the legislative power.  But when it comes to the Constitution itself, its provisions are ordained by the will of the people, as expressed  “by legislatures in three-fourths of the several states or by conventions in three fourths thereof….”  This act establishes (gives force to) the U.S. Constitution. It is an act of the people of the United States, expressing itself as a whole.

The people as a whole are therefore, like the “king in Parliament” a branch of “the entire legislature”.  The people as a whole are therefore ultimately responsible  for giving force to the Constitution which expresses their promulgated will, especially when it comes to the power to impeach and remove the Chief Executive.  In this regard the “supreme executive magistracy” of the people is superior to the power vested in the President of the United States. The latter vestment of power derives from and ultimately depends on a decision (ratification of the Constitution) that expresses the will of the people as a whole.  It must therefore be supported, in the final analysis, by forces derived from their activities. [Read the conclusion of this discussion in my next post]

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