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Toward An Impartial Impeachment Trial

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George Mason National Memorial
George Mason National Memorial
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This government will set out a moderate Aristocracy: it is at present impossible to foresee whether it will in its operation produce a Monarchy, or a corrupt tyrannical --Aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other ... George Mason's Objections to the Proposed Federal Constitution, June 18, 1788.

We the "people" now have the opportunity and the duty to prove Mr. Mason wrong. An impartial presidential impeachment trial now might well lead us toward a more honest, responsive body of civil officers and possibly even a less militaristic foreign policy. This is the first of a series of articles dealing with the flaws in our present impeachment trial system and the actions we might take to improve it before it is next called into use. In considering our present duty regarding impeachment, we can benefit from the words of James Madison, sometimes called the "Father" of our Constitution. He wrote on Oct. 15, 1788 (thirteen months into ratification) "The great desiderata on a Court of Impeachment are 1. Impartiality, 2. Respectability (credibility): the first in order to a right the second in order to a satisfactory decision... James Madison, Observations on Jefferson's Draft of a Constitution for Virginia

This article first looks at democracy through the words of a philosopher. Next it quotes three prominent framers on impeachment. Then it comments on the political nature of our two presidential impeachment trials. Finally, it suggests the use of The Senate Impeachment Rules as the means of securing an impartial trial in 2020. Subsequent articles will suggest specific changes in the Senate Rules'

A Philosopher's Comment on Democracy

The 17th C. French Philosopher (and mentor to James Madison) Baron Charles de Montesquieu believed that the democratic form of government has an "Inherent" weakness in that it gives to its people the final power over their government (on "parchment"), but fails to give them an effective way to control their civil officers. According to de Montesquieu, Kings control their civil officers by rewarding loyalty with titles. Dictators control theirs by punishing disloyalty with death. Perhaps the Framers of our democracy intended to put us, the people, in the places of kings and dictators. Instead, however, they gave us abstractions and "parchment." The people of democracies have their power in name only. The coming impeachment trial gives us another opportunity to devise a remedy to what de Montesquieu called democracy's "inherent weakness:" the great difficulty of creating a body of honest civil officers dedicated to our (the people's), even more than their own, best interests.

Hamilton on Impeachment

Hamilton submitted a statement of "principles" on Monday, June 18, 1787 (about three weeks after the Convention began). It read, in part, "The Governour, Senators and all officers of the United States to be liable to impeachment for mal and corrupt conduct and, upon conviction, to be removed from office and disqualified for holding any office of trust or profit - - - all impeachments to be tried by a court to consist of the Chief . . . or Judge of the superior Court of Law of each State. Between June and September, he changed his mind about the judiciary. During the last few days of the Convention, he proposed (and secured approval of) the Senate as the trier of impeachments. During the ratification period, Hamilton published Federalist 65 and 66 supporting the Senate as the trier of impeachments.

Madison on Impeachment

Madison quoted de Montesquieu in Federalist No. 47 and elsewhere. He evidently took de Montesquieu's warnings seriously when the Baron wrote about (1) the dangers of mixing the powers of government and (2) the "inherent" weakness of democracies. He must have regarded Hamilton's insistence on the Senate as the trier of impeachments as a double blunder. It both violated the separation of powers principle and missed an opportunity to strengthen the impeachment provisions in response to de Montesquieu's criticism of democracies. Madison opposed Senate impeachment trials from the first to the last days of the Convention. James Madison's Notes of the Constitutional Convention for Sept. 8 (The Convention ended on Sept.16th) read, in part. "Mr. Madison objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the legislature . . . He would prefer the Supreme Court for the trial of impeachments, or rather a Tribunal of which that should form a part".

Monroe on Impeachment

Our 5th President, James Monroe, writing during the five years between the end of his second term and his death, was optimistic about the ability of our impeachment provisions to maintain an honest body of civil officers. He wrote, in The People The Sovereigns (p. 16): "The right of impeachment and of trial by the legislature is the mainspring of the great machine of government. . . If preserved in full vigor and exercised with perfect integrity, every branch will perform its duty and the people will perform theirs." The willingness of Monroe and Hamilton to entrust impeachment trials to the legislative branch may be explained, in part, by their taking a monarchy (England) as their model.

Our Constitution and Impeachment

The reports of our two presidential trials indicate that our Constitution's presidential impeachment system is malfunctioning in a serious way. That is, it is functioning politically spite the fact that our senators and the Chief Justice of the Supreme Court are sworn to make it function impartially. In large part because of this failure, it has also been a dismal failure at discouraging presidential violations of our Constitution. It is impossible to say how much of our present government's chaos is due to the failure of the impeachment provisions. We do know, however, that our framers relied on them to motivate the civil officers of the three branches to dedicate themselves to our interests above their own. We also know that the Americans of the 18th C. could not anticipate the two-party system or the 17th Amendment of 1913. If they had, it seems unlikely that they would have trusted the Senate to vote impartially..

The Senate Impeachment Rules

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Neal Herrick is author of the award-wining After Patrick Henry (2009). His most recent book is (2014) Reversing America’s Decline. He is a former sailor, soldier, auto worker, railroad worker, assistant college football coach, (more...)

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