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Section 4 of 7 sections

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Commentary

Commentary

4.1

A second major consequence of this constitutional theory, and an even more important one to us today, is this: Congress has both the constitutional power and the duty to oversee the executive branch to a far greater degree than we have understood. This oversight power and duty has two roots. The first root, already noted, is a widespread awareness in the America of 1787 of the fallibility and corruptibility of human nature, and thus of the inherent danger of any and all government power. The second root is a constitutional consequence of this wary posture: no grounds are specified for impeachment and removal when removal is via a Senate trial. Because the danger of misusing government power is so great, our constitution does not try to fully anticipate how this may happen in the future. Instead, our constitution provides the option of a Senate impeachment trial as a kind of “safety value.” A Senate impeachment trial is a way to quickly and decisively remove from office anyone, for any reason, when the circumstances and the national interest demand immediate action. (Note: there is a strong argument that Congress can impeach judges, again without criminal grounds, but this must be understood in the context of the Article III provision that judges “shall hold their offices during good Behavior.”)

An expanded view of Impeachment and Removal from Office

We've seen the frame of this constitutional theory regarding impeachment. Let's now broaden the discussion to an historical perspective regarding the general problem of preventing government power, known always to be in the hands of fallible and corruptible people, from descending into tyranny.

At the time of the constitutional convention, this was a major concern among both federalists (who advocated establishing the constitution) and anti-federalists (who opposed the constitution). Here's what Madison wrote in The Federalist No. 47:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal constitution therefore really chargeable with this accumulation of power or with a mixture of powers having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”

We have a concern with preventing government from becoming tyranny, shared by federalists and anti-federalists alike. A war had just been fought over this issue. To better understand how, and how extensively, this concern resulted in strong constitutional provisions for multiple additional ways of removal from office, additional background is needed regarding both what Americans at the time of the constitutional convention understood law to be, and how they regarding English law and history.

The Concept of Law

Regarding law itself, people today may be inclined to think of it as something both “spelled-out” by legislatures, and as arbitrary at least in the sense that law is whatever legislatures (and some would add “activist” judges) specify it to be. However, from medieval times up to the time of the constitutional convention, it appears the main line of thinking was that “law” was not something that was “made” by men at all. As professor Mulford Sibley writes in Political Ideas and Ideologies: “...when we make this distinction between description and prescription, it is a rather artificial one from the viewpoint of the medieval thinker. For to him, all law tends to be discovered and the distinction between description and prescription fades: one discovers both the is and the ought by examining an objective universe of 'fact' and 'value'. Even when the king makes a law, he is essentially declaring it and not imposing it as a sheer act of arbitrary will.” In short, “we hold these truths to be self-evident” was a good summation of a general attitude and approach toward law.

Parliament's Judicial Powers

Parliament today is almost exclusively a legislative body. However, historically and up to the time of the constitutional convention, Parliament also had important judicial functions and powers – powers that went far beyond impeachment. Parliament's powers included:

Impeachment – As noted, the House of Commons had the power to impeach, and the House of Lords had the power to try impeachments. The respective powers of the U.S. House and Senate parallel these provisions. In England, anyone could be impeached, with the possible exception of the King. Professor Raoul Berger, in Impeachment: The Constitutional Problems, characterizes Parliament's impeachment powers as being for “'...the punishment of offenses of a public nature, which may affect the nation; as well in instance where the inferior courts have no power to punish the crimes committed by ordinary rules of justice;...'”.

The Bill of Attainder – The bill of attainder was a direct power of Parliament to judge and punish by death, on a case-by-case basis. This power was so extensive that it is specifically prohibited to the legislature in the U.S. constitution. By the bill of attainder, Parliament could and did: a) discover what the law is, and what is criminal, on an ex post facto (after the fact) basis, for any set of circumstances; b) convict a person of breaking the law, and c) sentence the offender to death. As with legislative bills, a bill of attainder required approval by both houses of Parliament, and also required the king's approval. As with a judicial conviction, a bill of attainder fully specified both the crime that an accused person was found to be guilty of, and the punishment (which by definition was death). A related power of Parliament, the bill of pains and penalties, could specify a lesser penalty than death, and could include removal from office(s), but was otherwise identical to the bill of attainder. Although our constitution specifically prohibits the bill of attainder per se, we will see that some elements of it are divided between Congress and the courts in cases of treason.

The Trial of Treason – An English statute of king Edward III established Parliament's direct judiciary power for cases where treason was suspected, but where no direct statutory enumeration of an act of treason applied. As recounted by professor Berger:

“The preamble of the treason statute recites, “Whereas divers opinions have been before this time in what case treason shall be laid, and in what not; the King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter followeth.'

“There ensues an enumeration of specific treasonable acts, for example, levying war against, or encompassing the death of, the King, or adhering to his enemies; which is followed by a proviso, often referred to as the salvo,

“And because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time, it is accorded, that if any other case, supposed treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony.”

Parliament was saying to lower courts: if you have a tough case, bring it to us -- we will discover whether it is or is not treason.

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