Sunday, January 5, 2020

A Dialogue on Impeachment


[The following dialogue is the Afterword in my new book Understanding Thomas Hobbes: The Smart Student’s Guide to Leviathan,  volume 6 of the Smart Student’s Guides to Philosophical Classics series ]

A Dialogue on Impeachment

Laurence D. Houlgate, Ph.D., Emeritus Professor of Philosophy,
California Polytechnic State University, San Luis Obispo.

Scene: A public house in 18th century London
Characters: Thomas Hobbes (1588-1679), John Locke (1632-1704) and James Madison (1751-1836).

[Note: The following conversation is entirely the product of the author’s imagination, although an attempt has been made to accurately convey the ideas,  political views and arguments of each character.]

James Madison
John Locke
Thomas Hobbes
Madison: Hello Hobbes, thanks for inviting me.  I must tell you that the ale served in this London pub is greatly superior to any of the ales brewed in Philadelphia.
Hobbes: I take no credit for the ale.  But the reason I invited you and Locke to join me this evening was not to talk about the quality of London ale but to ask about the Constitution that you, Hamilton, Jefferson and other former enemies of the Crown have been “brewing” lately – sorry about the pun.
Locke: And I join Madison in thanking you for the invitation to be a part of this discussion.  I am just as interested as you are about the form of government that the Americans are brewing. 
Locke (turning to Madison): I must say, James, that I am flattered that you and other framers of the Constitution at the convention in Philadelphia have said that they were influenced by some of the ideas I expressed in Second Treatise of Government.
Madison: As you know, Jefferson adopted most of your language on natural rights in the Declaration of Independence when he wrote that men have the unalienable rights of life and liberty. He added a new right to this duo that he called “the pursuit of happiness.” 
Hobbes: If I might make a comment here. I don’t understand why the pursuit of happiness should be protected as a right. In Leviathan I argued that the pursuit of felicity (my word for ‘happiness’) is an essential feature of human nature but unleashed it leads to constant competition between persons that soon becomes very destructive. Any man, not only a wealthy man, will kill to assure himself a future life of happiness.  This is how the pursuit of happiness is the root cause of the war of every man against every man that is the inevitable and miserable consequence of life in the state of nature.
But I digress.  I did not invite you and Madison here this evening to lecture you about felicity or the hypothetical state of nature.  I had a more serious and relevant topic that I want to discuss.
Madison: And what is that topic?
Hobbes: Impeachment.  It is a word that is familiar to those who have studied British constitutional history, but I did not know until recently that there is a clause in your new Constitution which gives Congress the power to impeach and remove any civil officer of the United States.  I understand that this power extends not only to federal judges and members of Congress, but to my astonishment, it even includes the impeachment and removal of the U.S. president.   Please explain what Americans mean by impeachment, the circumstances that lead to impeachment, and their justification of extending it to include the president.
Madison: Gladly.  We borrowed the word from the British.  The verb “to impeach” was first used in the fourteenth century when ministers of the government were charged or accused of treason and other crimes against the state.  In framing the U.S. Constitution, the word ‘impeach’ also means ‘to charge or accuse.’  It is the equivalent of the word ‘indict,’ with the difference that the word ‘impeach’ is used only for charges against public officials. As for the grounds for impeachment, we also borrowed them from the British.   After much discussion in the Constitutional Convention we voted for George Mason’s recommendation to add the words “and other High crimes and Misdemeanors” to the words “Treason and Bribery.” Mason reminded us that this now famous phrase is a well-known eighteenth-century technical term in British legal practice. It denotes crimes by public officials against the government.  But these need not be common law or statutory crimes.  As Alexander Hamilton wrote in the Federalist Papers, no 65, impeachment strictly involves the “misconduct of public men, or in other words the abuse or violation of some public trust.”
Hobbes: But surely the recommendation to make the impeachment of a president a part of your Constitution was contested by some of your fellow framers. 
Madison: Yes.  Some of them thought that the electoral process would suffice if there is a popular desire to remove from office a president who has engaged in misconduct.  If a democracy is truly government “by the people,” they argued, then the people, not members of Congress should decide by their vote whether a member of the House of Representatives or a senator suspected of violating the public trust should be re-elected.   A second concern, mentioned by Alexander Hamilton, was that impeachment can easily become a partisan affair in which one faction (party) would attempt to remove a president favored by another faction for no other reason than that the faction wants to retain or regain political power.
Locke: Why didn’t these concerns change your mind about impeachment?
Madison: We were finally persuaded that the impeachment clause might serve as a deterrent to a “rogue” president who might otherwise continue to violate the public trust .  As Elbridge Gerry put it, if we did not immediately impeach a president suspected of treason or bribery then we run the risk that he or she might violate the public trust again before the next election.  Better to have him removed from office now than to wait for him to do more damage.
Hobbes (turning to Locke): Locke, I noticed that you do not discuss impeachment in Second Treatise.  Why is this?
Locke: It is true that I do not mention the word ‘impeachment’, but I do recognize behaviors that I referred to as acts of ‘tyranny’, which I define as “the exercise of power beyond right.”  This happens when a prince (my word for ‘president’) uses his legislative or executive power not for the good of those who are subject to it, but for his own private advantage.  But when this happens, I warn that the people must be careful not to overreact.  They should be able to tolerate a little mismanagement of public affairs when a “heady prince” comes to the throne.  It is only in the extreme cases when the prince violates the trust that has been put in him by his subjects to protect their life, liberty and property that equally extreme remedies are justified.  The prince has effectively dethroned himself by violating this trust and has put himself back in the state of nature, nay back in a state of war, with the people.  As such, the people are at liberty to provide for themselves “by erecting a new legislative, differing from the other, by the change of persons, or form [of government] or both, as they shall find it most for their own safety and good” (Second Treatise, §220). 
Madison: And this is exactly what happened when we in the American colonies revolted against the British crown.  As colonists, we could not call for the impeachment of King George III because a king could not be impeached.  But even if the king could be impeached, colonists had no representation in Parliament.    Hence, we had no choice but to erect our own legislative, separate from that of Great Britain, after declaring our independence and then fighting a costly war that took the lives of almost 24,000 Americans who died on the battlefield or in prison. 
Locke: And an estimated 24,000 British regulars also lost their lives.  You make it obvious Madison, that this horrible bloodshed could have been avoided if only the Americans had been given representation in Parliament and if there had been a lawful way for Parliament to remove the king.  But before we get into more lamentation about the past and what we might recommend for the future, I am anxious to hear what Hobbes has to say about impeachment. 
Hobbes: Thanks for recognizing me.  I was afraid that you and Madison had forgotten that I was still here. 
My first question is whether it ever occurred to either of you that it is the form of government and the distribution of political power within the government that leads to these useless arguments about impeachment. If the form of government is a representative democracy and the powers to legislate, execute and adjudicate are distributed to different branches of the government, then ideally, the legislature would only have the power to create and change the law.  They would not have the power to investigate, impeach and remove anyone, including the president.  These are powers that should be allocated to the executive branch and it is doubtful that the chief executive, that is, the president of the United States, will impeach himself.  In fact, I would argue that the president cannot be impeached because the impeachment process implies the existence of another executive, who is above the president and who has the power to investigate and impeach him.  In that case, the investigator would be supreme, not the president. 
Madison:  It would appear from what you have just proposed that you approve of a representative democracy in which the three powers mentioned would be allocated to different branches of government.
Hobbes: No. You misunderstand.  I reject any proposal that separates or divides political power.  If the legislative, executive and adjudicative powers are each given to a different person or groups, then all you have accomplished is the creation of three sovereigns, not three parts of one sovereign.  Sovereign power cannot be divided!  If the U.S. Supreme Court can strike down a law passed by Congress, then at that moment the Court is sovereign.  If Congress can impeach and remove the president or a member of the Court, then Congress is sovereign.  If the president can veto a law passed by Congress that Congress fails to override, then the president is sovereign.  You call this “checks and balances.”  I call it nonsense.  There can only be one sovereign representative who has been authorized by the people to exercise all political power.
Locke: Are you proposing a monarchy? 
Hobbes: More than that.  I am proposing that all of those who have joined the social contract appoint and authorize one person or one assembly of persons to do whatever is necessary to prevent them from devolving back into the chaos, bloodshed and misery of the state of nature.   I would prefer a monarchy over an assembly because a monarchy is more efficient. The monarch would not need to take the time and energy to solicit the votes of his fellow rulers before they create or execute a law.  The second advantage of a monarchy is that the monarch is literally above the law.  I realize that this drives defenders of democracy nuts, but there must be someone who is above the law, even in a democracy.  In fact, it is a logical or conceptual impossibility for the sovereign ruler to be impeached and removed from office.  All laws and executive orders are made by the monarch.  But the monarch cannot bind (obligate) himself. (“He that is bound to himself only, is not bound.”).  If the monarch is bound to obey an order to cease and desist being a sovereign monarch, then there must be someone else who has the power to threaten that individual with harm.  But then the monarch would no longer be sovereign, and so on ad infinitum.   It follows that the sovereign monarch must be above the law.
Locke: But look here, Hobbes.  It would seem that you have not paid any attention to my counterargument in Second Treatise.  If the monarch is above the law and not subject to removal under any conditions whatsoever, then this puts the monarch in a state of nature relationship with each and all of his subjects.  You are proposing that the subjects of the sovereign monarch have no recourse if they believe they have been done an injustice or have been injured by the monarch  because there can be no third party above the monarch to whom they can turn to settle disputes with him.  But this is exactly the condition they were in before the existence of civil or political society. In sum, Hobbes’ argument is that the absolute monarch he proposes cannot be a part of civil or political society!
Madison: I am not claiming to be an arbiter of this debate, but I would like to add my two pennies worth before we move on to another subject.  It would seem, gentlemen, that you are at an impasse.  Hobbes argues that it is logically impossible for the sovereign to be impeached and removed from office because the sovereign is above the law, including laws governing impeachment. If all laws are commands backed with threats of harm to potential offenders, then such laws do not oblige the sovereign because the sovereign cannot command or harm himself.
But Locke has countered with the argument that the sovereign cannot avoid being under the law.  Subjection to the law is necessary to move a man out of the state of nature and place him in civil society.  Thus, in order to be appointed sovereign in a political society, the person selected must operate  under the law.  The very activity of authorization is a legal construct that necessarily exists only in civil society.
Locke: I might add that there is no logical impediment to those creating a new government that they separate legislative and executive powers by giving them to separate groups of persons, as I recommend in Second Treatise.
Madison: That has already been done, thanks to you, Locke.  In the U.S. Constitution, each branch is given a different power to exercise at their discretion, subject to certain conditions.  Congress, for example, has the power to create and change federal laws, subject to First Amendment limits.  But  Congress also has the power to impeach and remove public officials, including the Chief Executive.  It follows that the phrase “above the law” under this interpretation of “law” could only mean “to be immune to all powers exercised by other branches of government.”  I submit that this is not a logical impossibility. There is no contradiction in saying that the Chief Executive has the power to execute federal law but is not immune from Congress exercising its constitutional power to investigate, impeach and remove him from office if he should betray the public trust.
Hobbes: You are suggesting that the Constitution is sovereign.  But “words and paper without the hands and swords of men” cannot be counted on to restrain a person’s conduct.  That can only be done by men who are not themselves subject to the sword of others.  And Madison, I believe that you once expressed the same misgivings.  If I may quote you from the Federalist , “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands” (Federalist Papers, no. 51).
Madison: As a practical matter, the people who ratified the Constitution can be counted on to restrain a citizen’s conduct and so can the people who now have legislative, executive and judicial powers.   They not only can supply the powers necessary to restrain unlawful behavior but they have proven their success at this since 1788 when the Constitution received the final vote from the states for ratification.  Americans not only have three independent branches of government, but we have a representative democracy with staggered elections of members of Congress and of executive officials (including the president).  And we have “checks and balances” enabling each branch of government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power.  It is this that justifies the power of Congress to impeach and remove the president. 
What say you to that, Hobbes?  Hobbes?  Where are you?  Locke, have you seen Hobbes? 
Locke: While you had your head turned,  he quickly got up and went out the back door.  I thought he was going to the privy but I haven’t seen him return.  Shall we order another ale?