CONSTITUTIONAL CONVERSATIONS
by
M.E. Boyd, Esq., “Miss Constitution”
Miss Constitution treated herself to the just-released Downton Abbey in which Maggie Smith – the supremely gifted British actor – announces to her granddaughter that she will die but that Downton Abbey must remain eternal. What did she mean?
What she meant is what Alexander Hamilton meant in Federalist #65 regarding impeachment. Human beings need the timeless, the exemplary, the consummate, the enduring, though these things can never be perfect because human beings are not perfect and, in addition, have a deep penchant for faction. “. . . the demon of faction will, at certain seasons, extend his scepter over all numerous bodies of men.” In a previous column I mentioned Winston Churchill’s admonition to a young Queen Elizabeth II in The Crown, “When they look at you, they must see the eternal.” In America, our federal Constitution is that entity and she is holding up as magnificently as did Downton Abbey’s staff when faced with a visit from Edward VII and Queen Alexandra.
Impeachment of a President or other federal public servant is very rare, and our Constitution is both very specific about how it is to be conducted and very dependent upon the character and integrity of all the human beings involved. As Hamilton tells us, impeachable acts “relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason will seldom fail to agitate the passions of the whole community. . and will enlist their animosities . . there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.” Impeachment is about actions while in office. For those who called for President Trump’s impeachment in case he was elected or right after he was elected their views are to be dismissed as irrelevant to the proceedings. Here is a simple way to look at the matter.
First, elections make impeachment moot for those subject to it who are periodically elected by the public, unless the matter very grave. This would be especially true for the President and Vice President who are elected to office nationally. Impeachment is a more relevant tool for a judge who serves for life or for a civil servant who may serve many administrations and who may injure society over a long period of time. To nullify an election, particularly when one is so close at hand, is the most serious action that can be taken in a Constitutional Republic based on the Sovereignty of the People and the consent of the governed.
Article II, section 4: The President, Vice-President and all civil officers of the United States, shall be removed from office on Impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. The United States Constitution.
Second, the House of Representatives has the sole power of impeachment, when it is necessary, as it contains the most numerous elected representatives in a bicameral Congressional system. To impeach means to accuse with the Senate having the power to try and the Chief Justice of the Supreme Court presiding if a President is the one accused. Only the Senate can convict, it being thought the Senate of greater gravitas than the House. One reason for this arrangement is that the punishment for impeachment is removal from office. The accused and convicted may still be subject to criminal proceedings that might involve the Supreme Court so would be subject to double jeopardy if the Supreme Court were involved in the impeachment process. The House of Representatives, then, has both an ordinary legislative function and a rare prosecutorial function and they are not handled the same, in Miss Constitution’s opinion. When exercising the prosecutorial function of impeachment, the “House” is considered plural, meaning all members must vote to begin the inquiry, making it bipartisan, and the rules for such an inquiry must include strict Due Process or fairness for all concerned. While the House ordinarily may determine the rules of its proceedings as it chooses, when wearing a prosecutorial hat, it must function impeccably, with honor, impartiality, fairness, openness, transparency, and decency or the whole process will be seen by the public as illegitimate. The difficulty of placing it in government. . . is that. . . the most conspicuous characters in it will be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.” Alexander Hamilton; Federalist #65.
Third, Senate votes to convict are conducted under oath or affirmation, by standing, by voice vote, so that not only is each view known to all without any obfuscation, each Senator puts his or her own reputation for high honor on the line for all of history to note. We will have to see if the Senate will even take up a Bill of Particulars to impeach the current President if that Bill has been created without proper Due Process, without bipartisan support, and so close to a Presidential election.
Hamilton saw the rules for impeachment, outlined in our federal Constitution, as good as human beings can create in a partisan environment. Underlying it all is personal honor and virtue and a requirement that the process be scrupulously fair. Miss Constitution knows we are in a very wobbly era of United States history and the institutions that we take for granted to keep it all together are now under relentless attack or simply twisted factually for a desired outcome. Just as the King’s cook and servants took over Downton Abbey for the King’s visit and showed zero respect for those then serving its owner, so too have the cunning attempted to diminish the rules of the United States Constitution regarding the impeachment process. The Constitution, however, will be there for all of us – eternal, exemplary, and timeless, when all is forgotten about revenge on the South after the Civil War, the Watergate break-in, sex in the Oval Office, and quid pro quo. Just like Downton Abbey, just like the monarchy of Great Britain, and just like the United States Constitution, the eternal must prevail.
Copyright © 2019 M. E. Boyd, Esq., “Miss Constitution”
MissConstitution.com
