"Cap The Knife" Cuts Out

It was announced this morning that former Defense Secretary Caspar Weinberger died at the age of 88.

He served, most notably, as President Ronald Reagan's Defense Secretary from 1981-1987. For more, read this extensive (and quite flattering) biography from the Department of Defense.

I always thought that it was a joke that he kept his old nickname, which hints at his affinity for economies and saving money. Why, you ask?

Well, he presided over one of the most wide-ranging and costly defense-building projects that could have ever been imagined. It was estimated that during Weinberger's tenure, the U.S. defense budget rose 43% over its levels at the height of the war in Vietnam. That's quite a lot, no?

We were, however, locked in a showdown with the perfidious and shadowy Soviet Union, and we were experiencing a period of economic expansion. Then again, it left massive budget deficits that basically insured that George H.W. Bush would be a one term president because of the economy, stupid.

The claim that it was Weinberger that pioneered the idea that we should "spend" the Soviets into submission is kinda true, kinda false. First off, the U.S.S.R. in the mid-1980's was in a rather sad state of repair. With the death of Yuri Andropov AND Konstantin Cherenenko in 1984, and a young Mikhail Gorbachev (young for a Soviet premier, anyway) at the helm, the Evil Empire never looked weaker. Years of failed economic planning, party bureaucratic torpor, the ill-concieved invasion of Afghanistan (1979) and a general culture of corruption and ignorance came to a head in these years. I hate to make this judgement, but I think it was only a matter of time. The U.S.S.R.'s days (as it had existed since the 1920's) were numbered.

So, you ask, was the massive spending on defense a good thing. You naturally realize that this is an extraordinarily complex issue that is hard, perhaps even dangerous, to cover in so short a space, but here goes...

Budget deficits? Bad.

Mutually assured destruction? Worse.

Impeachment in America: Law. Precedent. Ambiguity.

In considering the notion that the current president, George Walker Bush, should be impeached for various offenses, it is important to review the Constitutional laws governing this process and their precedents in the U.S. legal system's "ancestor," English common and constitutional law.

First, the U.S. Constitution. Impeachment is discussed in Article II, Section 4, in one sentence no less. For those who do not feel like clicking the link, here is the text of that section:

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.

Well, simple enough, right? Not at all (as anyone who was conscious in 1998 will remember). The term impeachment is often wrongly understood as the actual removal of an official from his or her office. The impeachment, however, is merely the presentation of the charges against the accused (much like an indictment in a criminal case). The process of removing an official from office involves the impeachment, the presentation of evidence and then the subsequent vote on the charges by the responsible legislative body.

Historically speaking, the indictment power was discussed in the period that surrounded the writing and adoption of the U.S. Constitution between 1787 and 1789. In the most notable of these discussions, The Federalist Papers, Alexander Hamilton discusses the topic of impeachment.

In Federalist No. 65, Hamilton argues that it should be the Senate (with some members of the House of Representatives to serve as managers of the trial) that should serve as the court of impeachment. To allow the people to hear such trials would be, in Hamilton's estimation, to imflame popular passions. Hamilton's pathological distrust of the people aside, he only discusses the nature of the power briefly, at the beginning of the document.

There, Hamilton says that impeachment should be undertaken in cases of "misconduct of public men, or in other words, the abuse or violation of some public trust." It can be seen that this notion does not exactly match with the notion as defined in the final draft of the Constitution.

Taken together, the ambiguous terms from the Constitution and Federalist No. 65 present the central problem of calling for the impeachment of a federal official. Namely, what are "high crimes and misdemeanors" and what is an "abuse or violation of the public trust." These words will become quite the nub of the problem.

Perhaps it is germane to point out that the Constitution is the law of the land and The Federalist Papers are not. Still, they should provide further nuance to an understanding of this most confusing part of the U.S. Constitution.

The fact that there needs to be a set procedure for the removal of federal officials is obvious. What is not are the aforementioned terms and their meaning not only to us in the present, but also in divining the influences on people such as Alexander Hamilton to see if this issue can be made clearer.

Next time (at least the next time I feel like writing about impeachment), we shall look at the English precendent, use and possible influence on the Constitution and its provisions for impeachment. In England, briefly, the impeachment power was (up until the early modern period) taken to mean punitive action against anyone, official or not. It was in the seventeenth and eighteenth centuries that its sole use as punishment for those protected by the Crown (officials, that is) developed. This will be our focus.

More broadly, I intend to trace these precendents, look at three historical examples from the American past. Two from the nineteenth century (Chief Justice Samuel Chase in 1801 and President Andrew Johnson in 1868) and one from the twentieth century (Bill Clinton in 1998) will provide us with good consideration into the possibility of an impeachment of the current president.

After this is established, then we will look at possible charges against him, the likelihood of an impeachment/conviction and the broader implications of these (in the words of Former Chief Justice William Rehnquist) "grand inquests."

Until then, why not check out the Impeachment Information Center, an excellent source maintained by the Law School at the University of Pittsburgh.

Loose Ends And Echoes From The Past

Yes, I will continue on with impeachment soon, but I was on vacation for a week.

One might say that one disengages one's normal activities during vacation and does the opposite, mightn't one?

Well, for me the norm is thinking and other such academic bric-a-brac. I was, you will be pleased to know, able to disengage this for an extended period.

Whiskey helps, as usual.

It was a busy week. Friends getting married, my dad's birthday, St. Patrick's Day For The Reinforcement Of All The Worst Stereotypes About The Irish. It was jam-packed and, riding the bus home in the middle of the night, I realized that exhausted was hardly the word.

The sight of the capitol and Lake Monona was truly a sight for sore eyes (and legs and liver and damn near everything else). It is not because I wanted to leave my family and friends. Far from it.

I have not been sure what location is really "home" anymore. This was discussed in a seminar I had last semester but, as with most things academic, no agreement was reached and the discussion could have gone on ad nauseum.

My current "base of operations" is clearly Madison, WI. That is also where my books, ties, washrags, flatware, Funkmaster Flex medallion and other material things currently have their home.

I still, however, find myself calling Oak Forest "home."

I guess you really never can truly go home.

This adage does not help much, but oh well.

Lastly, good to hear from Otto von Bozzi. Too long, my brother, too long. Everyone else, too. Thanks for looking in.

Back to the usual boringness this week. I promise.

It Ain't Gettin' Easier...

The lack of response to my last post, even from my usual "commentators," has caused me to wonder.

Is this space becoming too "heavy," laden with concerns of a questionable nature?

Have I become "ivory tower," catering to intellectuals and ignoring the seemingly more pressing issues of life?

Well, I thought that the nature of power in government is a constant concern, given how much people just loooooove to complain about the government and its faults. I thought that, through examining the roots of power in government, we might come to some answers that would be directly pertinent to our times.

Will I just lighten up already?

Not on your life. Those who know me know that I am not like that.

To lay out the agenda, I may have one more piece on the last topic, introducing ideas of separation of powers and government by contract (think Thomas Hobbes, not Jean-Jacques Rousseau here).

Then, I was struck by a (syndicated) article in the Sunday Wisconsin State Journal last week.

It seems that Garrison Keillor is calling for the impeachment of President Bush.

When such a figure as Keillor calls for such a course of action, it bears notice. He is best known for his Prarie Home Companion on NPR and wistful tales of Lake Woebegon, not being, well, a political hack like me.

I think this can segue nicely into a discussion of impeachment, the laws for it, some historical case studies of it (there are only two), and a reflection on this course of action.

If you want to see me lighten up, stop by on a Friday night, not before.

Bring whiskey.

Power To The People: The Impossible Dream?

In my reading for classes this week (and for the past few actually), I have been forced to confront some thorny issues concerning the nature of government, the location of sovereignty in a system and the fact that government by consent might not make sense or even be remotely practical.

It is often strange how this happens, especially for historians. We confront what are supposedly dusty ideas of the past and, lo and behold, we are confronted with the same issues that plague us from their day to our own. I guess that people always come back to worrying about the same issues.

The specific period in question here happens to be England in the seventeenth century. More specifically the decades leading up to the English Civil War. The debates then extant were concerned with the locus of power in society and had been so for some time. On one side of the issue were the ideas and partisans of such people as Jean Bodin and Sir Robert Filmer. Bodin argued in his Six Books of the Commonwealth that sovereignty is indivisible and is not based on any sort of contract. It descends from God, through Adam (leader of the first human community) to kings (or, by implication, other forms of government). Bodin also argued that it can never be within the right of the people to oppose a king unless his actions are sinful, and even then all they can do is pray or flee the country. For Bodin, then, sovereignty lies not with the people, nor did it ever. The people did not cede the right to govern to the king and it was not in their power to do so. There is no social contract and therefore no limits on the power of the king. While, however, the king is enjoined to rule justly, there is no requirement that he do so.

These arguments were further extended by Sir Robert Filmer in his Patriarcha. Filmer argues that the authority of a king is like that of a father in a family. A father should be just but firm and should (get ready for this one) have the right of life and death over his children. In the same manner, a king rule his people this way. Filmer quotes often from Bodin, agreeing that sovereignty cannot be divided because it descends from God perfect and whole. He, therefore, rejects the idea of popular sovereignty and the separation of powers. This also, implicitly, rejects the idea of the social contract by which the people allow themselves to be governed in exchange for the freedom of the "commonwealth." Filmer asserts that to divide the power of government is to open the society up for anarchy and a non-extant rule of law.

Filmer argues that consent to be governed cannot be possible because this would involve a "meeting" of all the people of earth to cede the right to their rulers. It would also call into question the idea of elective versus successive monarchy. When the king dies, for example, is the transfer of sovereignty natural to his heirs or does it devolve to the people, to be given again upon the accession of a new monarch? Filmer firmly believes the former, stating that without the ability for commonwealth consent, it is only natural that the succession be maintained. While this argument may seem to be a sort of reductio ad absurdum, it bears consideration in the light of the question of the origins of government power.

On the other side are two different groups of theorists, the "monarchomachs" and (more historically specific) those who argued for the power of parliament during the English civil war. First, the monarchomachs (if you are not familiar with this term in general, read Lecture Five in John Neville Figgis's 1907 classic Studies in Political Thought From Gerson to Grotius.) Their ideas were basically that there WERE situations in which the king could be deposed, thus implying that his authority was not complete and that it DID descend from a consent from the governed. In his De jure magistratuum in subditos, Theodore Beza (John Calvin's "right-hand man") argues that, while it is not in the purview of the people to resist, it is the job of the magistrates and other "minor officials" to assure that the king governs for the benefit of the commowealth. If he does not, he can be deposed and Beza gives examples of this. Similarly, George Buchanan in De jure regni apud Scotos, asserts that if the king does not rule with justice and is swayed by evil-doers or flatterers at court, he can similarly be deposed of his power because that power exists from a consent of the governed.

The term "consent" presents a problem. While Filmer's argument seems to be fallacious, it must be considered how exactly the entire human race entered into such a contract with their leadership and that this contract can stand the test of time and history. The answer, as far as I am concerned, is given by John Locke in his idea of "tacit consent." But, back to the negative case...

Another group of thinkers who challenged the unfettered power of the sovereign were several parliamentarian pamphleteers of the seventeenth century in England. They were responding to the reign of Charles I and more specifically to his reluctance to call Parliament to serve as the legislative/appropriative body of the kingdom. One of these, Henry Parker, was concerned with the fact that the king fled to Scotland, leaving Parliament sitting in Westminster. In his Observations upon some of his Majesty's late answers and expresses, written in 1642, he posits that Parliament sits as the grand council of the nation and is instrumental in advising the king and performing one of the essential functions of government: a conduit between the people and the state. While, according to the like of Bodin and Filmer, Parliament was to serve as the magnification of the king's power, it can be seen in Parker's thinking that a different mode of government was coming to light. One where the legislature was not the king (the idea of the king as lex loquens, or "the law speaking," as expressed by Charles's predecessor King James I), but was the proper duty of the Parliament with the king retaining the executive function.

What relevance does this have for us? Consider these questions:

• Is our system of government inherently flawed? Is it for any of the reasons given by Bodin or Filmer?
• Does a contract exist between the governed and the governors? If so, explain how this is.
• Parker argued further that the Parliament could act in the king's stead. Is this a usurpation of power or a practical move for expediency?
• What do you make of Filmer's argument concerning consent?
• If we live in a society that does NOT have a contractual base of power, from whence does sovereignty descend? For these men, it was from God. What of a "secular society" such as our own?
• Are these just dead English/Swiss/Frenchmen whose ideas died when liberal democracy became the "norm?" Were they, in other words, swept into the old dustbin when John Locke came around (remember Locke was reacting to Filmer in the Two Treatises of Government)?
• To really extend the argument, did our society eventually arrive at the best form of government? Was Francis Fukuyama right?

Think on that, whydon'cha?

Further Reading

If these subjects interest you (and why wouldn't they), why not read these other great works?

• Philip Hunton, A Treatise of Monarchie. Another English Civil War-era pamphleteer, he argues that limited monarchy is the only way to protect people from evil, deluded rulers.
• Samuel Rutherford, Lex Rex. More reasons, from a 1644 pamphlet, on limiting the unchecked power of the king.

There will be more to come on this topic, including Hobbes (and why I disagree with him), Locke (and why I agree with him) and more roots of our current situation.

Ignore it at your peril.