Skip to comments.FReeper Book Club: The Debate over the Constitution, Federalist #65
Posted on 11/26/2010 8:22:34 AM PST by Publius
The Constitution broke the impeachment process into several pieces, with each piece handled by a different branch. The House impeaches, and the Senate tries the case with the Chief Justice presiding. Hamilton defends the process invented by the Convention.
1 To the People of the State of New York:
2 The remaining powers which the plan of the Convention allots to the Senate in a distinct capacity are comprised in their participation with the Executive in the appointment to offices and in their judicial character as a court for the trial of impeachments.
3 As in the business of appointments, the Executive will be the principal agent; the provisions relating to it will most properly be discussed in the examination of that department.
4 We will therefore conclude this head with a view of the judicial character of the Senate.
5 A well constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective.
6 The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men or, in other words, from the abuse or violation of some public trust.
7 They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.
8 The prosecution of them for this reason will seldom fail to agitate the passions of the whole community and to divide it into parties more or less friendly or inimical to the accused.
9 In many cases it will connect itself with the pre-existing factions and will enlist all their animosities, partialities, influence and interest on one side or on the other, and in such cases 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.
10 The delicacy and magnitude of a trust, which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves.
11 The difficulty of placing it rightly in a government resting entirely on the basis of periodical elections will as readily be perceived when it is considered that the most conspicuous characters in it will from that circumstance 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.
12 The Convention, it appears, thought the Senate the most fit depositary of this important trust.
13 Those who can best discern the intrinsic difficulty of the thing will be least hasty in condemning that opinion and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.
14 What, it may be asked, is the true spirit of the institution itself?
15 Is it not designed as a method of national inquest into the conduct of public men?
16 If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves?
17 It is not disputed that the power of originating the inquiry or, in other words, of preferring the impeachment ought to be lodged in the hands of one branch of the legislative body.
18 Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry?
19 The model from which the idea of this institution has been borrowed pointed out that course to the Convention.
20 In Great Britain it is the province of the House of Commons to prefer the impeachment and of the House of Lords to decide upon it.
21 Several of the state constitutions have followed the example.
22 As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government.
23 Is not this the true light in which it ought to be regarded?
24 Where else than in the Senate could have been found a tribunal sufficiently dignified or sufficiently independent?
25 What other body would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and the representatives of the people, his accusers?
26 Could the Supreme Court have been relied upon as answering this description?
27 It is much to be doubted whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task, and it is still more to be doubted whether they would possess the degree of credit and authority which might on certain occasions be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives.
28 A deficiency in the first would be fatal to the accused; in the last, dangerous to the public tranquillity.
29 The hazard in both these respects could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy.
30 The necessity of a numerous court for the trial of impeachments is equally dictated by the nature of the proceeding.
31 This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.
32 There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it.
33 The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.
34 These considerations seem alone sufficient to authorize a conclusion that the Supreme Court would have been an improper substitute for the Senate as a court of impeachments.
35 There remains a further consideration which will not a little strengthen this conclusion.
36 It is this: The punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender.
37 After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments, of his country, he will still be liable to prosecution and punishment in the ordinary course of law.
38 Would it be proper that the persons who had disposed of his fame and his most valuable rights as a citizen in one trial should in another trial for the same offense be also the disposers of his life and his fortune?
39 Would there not be the greatest reason to apprehend that error in the first sentence would be the parent of error in the second sentence?
40 That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision?
41 Those who know anything of human nature will not hesitate to answer these questions in the affirmative, and will be at no loss to perceive that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would in a great measure be deprived of the double security intended them by a double trial.
42 The loss of life and estate would often be virtually included in a sentence which in its terms imported nothing more than [dismissal] from a present, and disqualification for a future, office.
43 It may be said that the intervention of a jury in the second instance would obviate the danger.
44 But juries are frequently influenced by the opinions of judges.
45 They are sometimes induced to find special verdicts which refer the main question to the decision of the court.
46 Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?
47 Would it have been an improvement of the plan to have united the Supreme Court with the Senate in the formation of the court of impeachments?
48 This union would certainly have been attended with several advantages, but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable?
49 To a certain extent, the benefits of that union will be obtained from making the Chief Justice of the Supreme Court the president of the court of impeachments as is proposed to be done in the plan of the Convention, while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided.
50 This was perhaps the prudent mean.
51 I forbear to remark upon the additional pretext for clamor against the Judiciary which so considerable an augmentation of its authority would have afforded.
52 Would it have been desirable to have composed the court for the trial of impeachments of persons wholly distinct from the other departments of the government?
53 There are weighty arguments as well against, as in favor of, such a plan.
54 To some minds it will not appear a trivial objection that it could tend to increase the complexity of the political machine and to add a new spring to the government, the utility of which would at best be questionable.
55 But an objection which will not be thought by any unworthy of attention is this: a court formed upon such a plan would either be attended with a heavy expense or might in practice be subject to a variety of casualties and inconveniences.
56 It must either consist of permanent officers, stationary at the seat of government and of course entitled to fixed and regular stipends, or of certain officers of the state governments to be called upon whenever an impeachment was actually depending.
57 It will not be easy to imagine any third mode materially different which could rationally be proposed.
58 As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them.
59 The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union, the injury to the innocent from the procrastinated determination of the charges which might be brought against them, the advantage to the guilty from the opportunities which delay would afford to intrigue and corruption, and in some cases the detriment to the state from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives.
60 Though this latter supposition may seem harsh and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will at certain seasons extend his scepter over all numerous bodies of men.
62 If mankind were to resolve to agree in no institution of government until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy and the world a desert.
63 Where is the standard of perfection to be found?
64 Who will undertake to unite the discordant opinions of a whole community in the same judgment of it and to prevail upon one conceited projector to renounce his infallible criterion for the fallible criterion of his more conceited neighbor?
65 To answer the purpose of the adversaries of the Constitution, they ought to prove not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.
That is to the modern readers benefit, for the exposition on impeachment that Hamilton now lays out shows each element of the impeachment process to have been a closely-reasoned thing. The disciplining of the highest members of government is, he states, a matter that will inflame the passions of faction, risking the decisions therein becoming a matter more of political strength than of justice (9). It is one of Hamiltons more prescient moments.
The first question addressed is why this vital matter should be judged in the Senate. It is, answers Hamilton, the principal repository of debate within the planned government (15). The entire impeachment process is patterned after the government of Great Britain, within which impeachments are considered within the more numerous, popularly-elected House of Commons, the counterpart to the House of Representatives, and decided within the House of Lords, the counterpart to the Senate (20). That is the pattern employed by several state governments within the United States as well and so is, at least, sound with regard to precedent.
Hamilton briefly reviews the alternatives. First, is referring them to the Supreme Court a viable option? A body of such few members might, in his estimation, be more subject to intimidation than the Senate, and contrary to the customary structure of justice within the Constitution, there would be no jury between accused and judge (32). Worse, conviction in the matter would lead to removal from office for high crimes and misdemeanors which could then result in a trial on their own merits in a conventional court (36), the ultimate appeal to which would be to the same Supreme Court that had just convicted. It would be a form of double jeopardy that would tend unfairly to sway the succeeding criminal trial (39).
There is, however, the undeniable advantage of involving the countrys top legal minds in the conduct of what is ultimately a legal matter. The possibility of uniting the membership of the Senate with that of the Supreme Court is the second alternative considered. This, despite several advantages (48), would not protect the defendant against the prejudices inherent in the double jeopardy scenario, and so the prudent mean was the course between: to leave the matter run by the Chief Justice and judged by the body of the Senate.
Another alternative might have been to construct a separate political entity dedicated specifically to the purpose of considering impeachment, made up either of permanent officers dedicated to the purpose, or of those drawn from the various state governments. This, says Hamilton, would have been impractical due to the expense of maintaining the former (58), and the strain the latter would place on the state governments (59), resulting in a necessary delay that could only be to the disadvantage of the innocent and the advantage of the accused.
Throughout the essay Hamilton adopts a more objective approach than the reader has seen from him up to this point. Each of the alternatives has, he states, serious arguments in favor as well as in opposition. The procedure encompassed within the proposed Constitution is, in fact, a deliberate attempt to find the optimal path between them (61), and should not constitute a reason for the rejection of the overall plan on its own accord.
It has been remarked by Federalist and anti-Federalist alike that a representative government requires both a virtuous membership and a virtuous people standing behind them. This gives the topic of corruption a more particular importance in such a government than in those of other forms, to which Hamilton alludes at 5. In addition to the inevitable interference of faction in the deliberative process, it also presupposes a body of judgment whose members are less guilty than the defendant in the matter under consideration. Where corruption is widespread the system breaks down. Who, for example, can convict a member of tax evasion, improper betrayal of trusted information, or sexual impropriety, to name but a few notoriously recurring topics, when his own conduct opens him to the accusation of the same? Juvenals question, Quis custodiet ipsos custodes? implies that a system where the watchmen watch themselves will always depend on the integrity of the watchmen alone. It is at best an imperfect solution, and for once Hamilton admits it.
In the months before President Kennedys death, certain barons of the House of Representatives began looking into Kennedys relationship with a woman who might have been a spy for East Germanys Stasi. The people around Kennedy decided that they would counter any investigation by launching a scorched earth offensive against those members of the House by exposing their own adulteries, which were legion. When President Clintons sexual escapades and perjury unraveled into impeachment by the House, the same offensive was employed, as one congressional baron after another fell from power. There were rumors of individual senators being blackmailed in the course of the trial by the Senate, which produced moments like that in which a senator referenced Scottish law in his decision to acquit. While actions like this may simply be a part of hardball politics, it is apparent that the executors of the scorched earth offense were using information gathered by law enforcement and intelligence agencies in activities significantly outside their charters. Does the national security state render the impeachment process irrelevant when the subject is the President? Are there remedies for this?
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilsons Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
7 Feb 1788, Brutus #12, Part 1
8 Feb 1788, Federalist #51
8 Feb 1788, Federalist #52
12 Feb 1788, Federalist #53
12 Feb 1788, Federalist #54
14 Feb 1788, Brutus #12, Part 2
15 Feb 1788, Federalist #55
19 Feb 1788, Federalist #56
19 Feb 1788, Federalist #57
20 Feb 1788, Federalist #58
22 Feb 1788, Federalist #59
26 Feb 1788, Federalist #60
26 Feb 1788, Federalist #61
27 Feb 1788, Federalist #62
1 Mar 1788, Federalist #63
7 Mar 1788, Federalist #64
It is a shame that impeachment is so rarely used. So a few judges would get fired now and then, big deal. Last I checked, there is no shortage of lawyers to replace them.
It is way past time for Congress to use the power they have to confront the radical leftist judges who think they are supreme over the Constitution, the other branches and the people.
To hell with impeachment. It is a political act, as BC’s impeachment proved. The rascal was guilty, having accepted punishment for his acts later. But he put this nation through a costly political circus that accomplished NOTHING, as far as justice was concerned. He even had the gall to ask for donations to his legal fund....which was only to enrich his friends.
I would welcome the return of the formal duel. Maybe some modernization is needed...put the two in a maze and let them have at it with 45’s.
I have often wondered why Orrin Hatch was less than spirited about Clinton’s impeachment.
Must have been those FBI files that the Clinton’s collected.
When Chris Matthews insulted Michele Malkin on his show, Zell Miller upbraided him a day later and told him that in the old days, as a southern gentleman, he would have been forced to challenge Matthews to a duel to protect Michele's honor. This is the kind of thing that would work well at Weehauken.
Matthews' last words before Zell fired would have been, "You're kidding, Zell. Right?"
An interesting facet of dueling was that you were willing to put your life on the line for your act. If both attended, both were defending their honor.
Matthews has no honor. He would not show for such an event, and his tingling leg would have affected his aim anyway.
Personally, if Michelle were my woman (I can dream, can’t I?), I would have subjected Matthews to a pugilistic experience he wouldn’t have forgotten. He would have been “eating” through a straw for weeks; and MSNBC’s rating would have been soaring in his absence.
A pugilistic experience? Congressman Preston Brooks of South Carolina used his cane on Sen. Charles Sumner of Massachusetts because he viewed Sumner as not being a gentleman, and thus unworthy of a duel. A cane or a horsewhip would have sufficed for Matthews.
Please REMOVE my name from your mailing list.
Interesting. Thanks for posting.
Impeachments of Federal Officials...
From Wikipedia in the Halsted L. Ritter case (mentioned in the previous link)...
On March 2, 1936, the United States House of Representatives voted to impeach Ritter by 181 votes to 146 on seven articles of impeachment. The proceedings were only the 13th impeachment case in the 147 years of Congress, although it took place just a month after the impeachment of Harold Louderback (who was acquitted in the Senate). The seven articles were:
Ordering the payment of “exorbitant” legal fees with intent to embezzle. Specifically, the House managers said Ritter engaged in champerty (”a proceeding whereby a person having no legitimate interest in a lawsuit abets it with money or services in the hope of profit”) by “corruptly and unlawfully” receiving $4,500 from a former law partner, Albert L. Rankin. The House charged that Ritter had planned with Rankin and others to put Whitehall (the former Henry Morrison Flagler mansion and then a hotel, and now a museum) into receivership, and had given Rankin an “exorbitant fee” of $75,000, keeping $4,500 of it.
Showing favoritism in bankruptcy cases
Two charges of practicing law while a judge
Two charges of tax evasion (by filed false income tax returns in 1929 and 1930)
Bringing the judiciary into disrepute (accepting free meals and lodging at Whitehall during receivership proceedings)
Ritter’s chief defense attorney was Frank P. Walsh. Three House managers prosecuted the case, with Sam Hobbs of Alabama leading.
On April 6, 1936, the U.S. Senate began its trial. Eleven days after the trial began, the Senate voted to acquit him of all but the last article (bringing the judiciary into disrepute), which he was convicted of 56-28, exactly the two-thirds necessary for conviction under the Constitution, and Ritter was removed from office on April 17, 1936. A motion to disqualify Ritter from all further federal office was defeated unanimously by the Senate.
Ritter challenged the conviction in the federal Court of Claims on the grounds that the Senate could not convict him on a general charge of bringing the judiciary into disrepute if it was not able to convict him of a specific offense.
(...end of snippet.)
Bringing the presidency, house, senate, judiciary into disrepute (in addition to other charges)...impeachment proceedings should be 24/7/365 these days.
The current Thomas Porteous case...
From the Porteous link....
...Senators Claire McCaskill (D-MO) and Orrin Hatch (R-UT) were designated as Chair and Vice Chair of the committee, respectively. The committee met on April 16; The trial was due to begin in early August, with a vote before the Senate happening in late September, but due to delays, it did not begin until mid-September, with a vote scheduled for a post election lame duck session in late November or early December 2010.