Gary Schmitt’s recent comment on impeachment in these pages was a breath of fresh air. But there is more—and perhaps it takes an outsider to see it.
When Americans hunker down for a constitutional crisis, the rest of the world can go hang as far as most are concerned. But what happens in Vegas, or Washington, never really stays in Vegas—or Washington. As some American once said, the whole world is watching.
When the world watches the current impeachment proceedings, what does it see? One thing it sees is a media and general public with a very uncertain grasp of constitutional history and principles—or at least a profound lack of concern with what it knows. I, as a non-U.S. national with a political science Ph.D. from a U.S. university, see a political class whose appreciation for what the Founders called civic virtue is not what it might be, and arguably used to be. I see a constitutional republic up for grabs.
Let me offer two examples, if I may, of what the American media politisphere seems to have missed.
Everyone repairs to the Constitution and the Federalist Papers, notably The Federalist (No. 65), for guidance on impeachment. Indeed, prominent constitutional law experts have recently done so. No one, however, has mentioned the Declaration of Independence, and this is a cardinal error.
Whatever else it was, the Declaration was a bill of impeachment against George III —with 27 specific indictments detailing his “long train of abuses and usurpations.” Does anyone think that what had happened in 1776—which started a war that ended only in 1781—was not on the minds of delegates in Philadelphia in 1787?
The specter of George III haunted them in Philadelphia. All the delegates knew with virtual certainty the identity of the first President—“the first man put at the helm will be a good one”—but as Benjamin Franklin lamented, “nobody knows what sort may come afterwards.” There was a not unfounded fear that subsequent presidents would turn out to be less like George Washington and more like George III.
Thus, when Charles Pinckney of South Carolina and Gouverneur Morris of Pennsylvania opposed making the President impeachable, Franklin and his fellow signers of the Declaration, James Wilson and Elbridge Gerry, declared strongly in favor of an impeachment process for the chief executive. Franklin urged that the new Constitution ought to provide “for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.” Gerry insisted that “a good magistrate will not fear them. A bad one ought to be kept in fear of them.”
In The Federalist (No. 77), Alexander Hamilton, the principal advocate of “energy” and a strong executive, also attempted to allay fears of presidential tyranny. He insisted that the President would be “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.”
As Schmitt noted, another impeachment episode was underway in London, even as the delegates sat at Carpenter Hall in Philadelphia. It involved Warren Hastings, Edmund Burke, and a cast of then-well known characters.
Hastings had been the East India Company’s governor-general in Bengal and stood accused of abusing his power in India. Burke, the manager of Hastings’s impeachment trial in the House of Lords, charged him with crimes “against those eternal laws of justice, which are our rule and birthright: his offenses are not in formal, technical language, but in substance and effect, High Crimes and High Misdemeanors.” Hastings was eventually acquitted after a seven-year trial, but his ordeal was a teachable moment for George Mason.
Mason knew that Hastings could not be impeached only on the letter of the law, so he sought to devise the mean between innocence and guilt solely by dint of treason or bribery—“high crimes and misdemeanors.” It was a Parliamentary term of art carefully and purposefully maintained to be open-ended and flexible enough to deal with a wide range of misconduct, much of which was not strictly “criminal” in the sense of violating any pre-existing statute or common law. That the convention accepted Mason’s expansive definition of impeachable offenses without debate or dissent speaks not only to the delegates’ familiarity with English parliamentary practices but also to their pragmatic recognition of the need for wiggle-room that allowed for prudent political judgment.
Moreover, it needs to be pointed out that bribery was nearly as vague a notion at the time, for no bribery statutes appeared in the Federal Code until 1853. Informed by their reading of Blackstone, the framers of the Constitution had a much broader understanding of bribery than what now exists in the criminal code. For them, bribery encompassed an official’s abuse of the power of his office to obtain a private benefit rather than for the commonweal.
Trump defenders who argue that his behavior did not break any law and so is not impeachable are either disingenuous or terminally ignorant. But similarly, Democrats who feign injury when the White House refuses to cooperate in their proceedings are also being disingenuous or ignorant. Impeachments are, as Hamilton said, “POLITICAL” affairs, and as such, it is risible to expect a President to conspire in his political undoing. If all this is mere political theater, it is bad theater. One suspects, however, that the principals involved really do not know what they are doing, and frankly, this is no time for amateur hour.
The current impeachment episode is, therefore, not just about the future of Donald Trump’s presidency. A great deal more is at stake than that. It is about the civic literacy of the American republic itself. Alas, amid the current impeachment proceedings, calls are heard to remedy “flaws” in the American constitutional design. But to paraphrase Cassius: “The fault is not in the Constitution, it is in ourselves.” It is the political class, who have elevated fealty to faction above their oath to defend the Constitution (along with the general public, who mostly think this passes for normal) who have failed to live up to the demands of the Constitution.
At the Virginia ratifying convention James Madison warned that “to suppose any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.” He was right then, and he is still right now.
Singapore is only 54 years old as an independent country. America nonetheless remains a model for future aspirations. If that model decays, the whole world will be the worse off—because the whole world is still watching.