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Draining the swamp-The Constitution’s Article I.3 may make it easier than we think

Let me be clear at the outset that the aim of this article is not to assert, unequivocally, that the argument it considers is correct or incorrect.  I simply want to draw attention to a possibility so that others can consider it.  I act on the understanding that some aspects of the Constitution are like fire extinguishers.  People may not look for them in earnest until the need arises.

My readers know that I have lately tried on several occasions to highlight the importance of Congress’s power of impeaching, trying and removing Civil officers of the United States, including the President.  Thanks to Bill Clinton’s sexual foibles, much attention was focused on the Constitution’s provision for impeachment and removal of the President.  But now our nation is confronted with possible malfeasance on the part of subordinate Civil Officers,  This must lead us to consider what response the words of the Constitution suggest should be the ordinary course of events when their high crimes and misdemeanors are in question, including the abuse of their powers to influence and otherwise interfere with the elections by the people.

The Constitution distinguishes between the responsibility of the House and that of the Senate in this regard.  It simply says that the House has the sole power of impeachment, without further specification of any particulars. But when it comes to the Senate’s power to try and convict the accused it sets forth several specifications:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

At this point I must draw the reader’s attention to the colon that introduces the words quoted above.  What import did you assign to that colon? Upon seeing it, what did you expect to find in the quote that follows? I obviously can’t answer that question for each of my readers.  But I can refer to what grammarians say about what the colon is supposed to imply in ordinary usage:

Webster’s Dictionary (1828):

In grammar, a point or character formed thus [: ], used to mark a pause greater than that of a semicolon, but less than that of a period; or rather it is used when the sense of the division of a period is complete, so as to admit a full point; but something is added by way of illustration, or description is continued by an additional remark, without a necessary dependence on the foregoing members of the sentence. Thus,

A brute arrives at a point of perfection he can never pass: in a few years he has all the endowments he is capable of.

Thoughtco.com:

The colon ( : ) is a mark of punctuation used after a statement (usually an independent clause) that introduces a quotation, an explanation, an example, or a series.

Whitesmoke.com:

When a second independent clause explains or summarizes a preceding independent clause, you can use the colon to separate them.  In this way the colon serves as a prompt alluding to the second clause as being an answer to an implied question raised in the first independent clause….

When one unit of information expands or derives from another, consider putting a colon between them.  This makes the relation between the two units more obvious as it alerts the reader to regard the latter unit as significant to the former. This rather advanced use of the colon enables connecting two sentences together in an elegant and more concise manner, as it saves up on some wording.

Oxford dictionaries.com

here are three main uses of the colon:

between two main clauses in cases where the second clause explains or follows from the first:

That is the secret of my extraordinary life: always do the unexpected.

It wasn’t easy: to begin with, I had to find the right house.

Dictionary.com

Colon

the sign (:) used to mark a major division in a sentence, to indicate that what foloows in an elaboration, summation, 8mplication, etc., of what precedes; ….

What all these definitions and descriptions have in common is the fact that the colon establishes a certain relationship between the clause (usually a complete sentence) that comes before the colon, and the clause (which may also be a complete sentence) that follows it.  The sentence that follows the colon amplifies, explains, or applies to the context established by the sentence that comes before the colon.  In this sense the colon serves as a conjunction, joining the sentences together for consideration.  In the Constitutional provision in question, the word “And” confirms this conjunctive purpose in respect of that context.

Now here’s the rub:  The context established by the sentence we are inspecting is established with the words “When the President of the United States is tried….” This is the context to which the words “the Chief Justice shall preside” have to be applied.  The colon then draws our attention to another circumstance that also applies in that context, to wit: And no Person shall be convicted without the concurrence of two-thirds of the members present.”

The usual usage of the colon fails to explain why many people insist that the 2/3 majority applies to all cases of impeachment.  The limited conjunctive significance of the colon suggests nothing of the kind.  Some people have questioned the use of the word “Person”.  They suggest that it applies to all civil officers of the United States government subject to impeachment, trial, and removal, with prejudice in respect of future service.  But the inclusion of the word “And” following the colon re-enforces the connection with the limitation (“the chief justice shall preside”. It indicates that what follows is a further limitation connected to the trial of the President.

It’s worth noting that when Alexander Hamilton discusses the importance of the two thirds Senate majority it is in the context that “the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon encroachments of the executive.”  Later, when the impeachments and their determination are mentioned with reference to the judiciary, Hamilton makes no mention of the two thirds majority.  His silence in regard to the Senate’s power to adjudicate impeachments in such cases resembles the silence of the Constitution itself when it comes to the House’s power of impeachment.  In both cases, silence abets the assumption that simple majority rule applies.

Consider the implications of the colon in Article I.3.  It could mean that, except for the President, the U.S. House can impeach, and the U.S. Senate can convict and remove, any and all civil officers of the United States by simple majority voteThe two thirds majority applies only to the trial of the President. If this is accurate, draining the swamp just got a whole lot easier—provided the GOP Congress acts accordingly. Among other things, the days of Federal judicial tyranny would be over and done.

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  • Ken Peterson July 29, 2018, 2:41 am

    —provided the Congress acts…

  • Publius Huldah June 22, 2018, 12:35 pm

    Interesting! I’ll keep my eyes open for other comments from our Framers on this issue. Thank you for an interesting idea!

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