Doug
PS: Schell recently told a class at the New School that he "never understood the connection between politics and economics."
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The Nation - February 15, 1999
What Works: The Constitution. JONATHAN SCHELL
In most respects, the impeachment of President Bill Clinton--now destined to go on for yet more weeks--is different from the proceedings against President Richard Nixon a quarter-century ago. Nixon was accused of abuses of the power of his office. You had to be President to bomb Cambodia secretly, to use the IRS to harass your political enemies or to ask the CIA to squelch an investigation by the FBI. Clinton, on the other hand, is accused of violations of law in his individual capacity. It is within the power of almost anyone to fool around at the office, to invite a colleague to dissemble about the affair in court or to ask a friend to do the lover in question a favor.
The historical circumstances were different, too. In the immediate background was the cold war, in whose name the presidency had accumulated powers that Nixon used to break the law. The question before the country$was whether to embrace this "imperial" presidency or to restore the constitutional balance, and it chose the latter. Today, by contrast, one would be hard put to name any large public controversy that is going to be settled one way or the other by the impeachment trial. If anything, the trial has created fresh issues (mostly regarding abuse of the impeachment power itself) rather than resolved existing ones.
In at least one respect, however, the two impeachment proceedings are similar. Both, in their different ways, illumine the wisdom, shrewdness and almost uncanny prescience of the Framers of the Constitution of the United States. In recent years this magazine has run a series of articles titled "What Works." The Constitution is the prince of things that have worked--in its case for 210 years. To sing the praises of the Constitution at this moment is, I know, no startling thing to do. Those accusing the President in the Senate chamber as well as those defending him have been doing likewise for several weeks now. One side wants Clinton out, and the other side wants him to stay, but both want what they want in the name of the Constitution . In fact, this general reverence for the document--sometimes called America's civil religion--may in truth be as important as its particular provisions. Agreement about any code of conduct, whether this is the US Constitution , Islamic Sharia, Confucian odes or last week's astrological charts, can be a boon to a country. A king who's respected is worth more than a splendid constitution that's ignored. (Stalin's Constitution of 1936--an exemplary document, guaranteeing every imaginable human right--comes to mind.)
In the events at hand, though, it is also undeniably the provisions of the document that shine. In The Federalist Papers and other writings of that day, the abstract thoughts of the writers often read like descriptions of the events unfolding before our eyes. For example, we instantly recognize today's Republican Party in Alexander Hamilton's warning that "the most conspicuous characters" in impeachment 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."
Therefore the Constitution established certain breakwaters against the tide. One was the provision that two political bodies had to be involved--the House as accuser, the Senate as court. In our case, though, both bodies are under the control of one party. Not to worry, though--the Framers placed one final obstacle in the way of the President's removal: the requirement of a two-thirds majority in the Senate. "The division ... between the two branches of the legislature," Hamilton wrote in The Federalist Papers, "assigning to one the right of accusing, to the other the right of judging; avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches. As the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire." And this provision today stands in the way of a purely partisan removal of the President, just as Hamilton had anticipated.
Such prophetic refinement is especially striking in the impeachment clause, which is probably the loosest cannon on the constitutional deck. It is the final, desperate remedy when the normal, everyday operations of the Constitution have all failed and the Republic is on the edge of catastrophe. Not surprisingly, then, it runs counter to other principles on which the Constitution is based. The separation of powers, for example, is one of the Constitution 's very foundations; yet impeachment clearly breaks it down. The separation of jury and judge is basic to our judicial system, but in the persons of the senators at the trial it is erased. The scene before us every day in the Senate chamber--in which the President is in the dock; Congressmen have trooped over from their own House to the Senate; the senators have been rebaptized as hybrid juror-judges; and the Chief Justice of the United States has left his co-equal lair across from the Capitol to preside--is a sort of monstrosity from the separation-of-powers point of view. Here, owing to a contemplated great national emergency (missing in today's case), the separated powers seem, as in time of war, to have fused primitively into one.
Yet this crude power, too, has been tempered and regulated. In effect, a separation of powers was re-created by assigning impeachment to the two bodies and requiring the two-thirds vote. For some months, a majority of the public, according to most observers, has been paying little attention to the spectacle in Washington. The government is in uproar, but they are calm. They go about their daily lives, which they find more important than impeachment. Let us imagine, though, that in some lax moment at the Constitutional Convention the Framers had omitted to require the two-thirds majority. Today, the President would be in clear danger of removal. Immediately, we must suppose, public indifference would end and people would angrily take sides in a battle whose stakes are huge and menacing. But none of this is happening. The two-thirds rule--a great shield held out by the Framers across a gulf of two centuries to shelter us--is in place, and we are undisturbed.