What Is Congress For?

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James Madison and the other men who wrote the Constitution seemed to be of the latter opinion.  This is why, after debating whether to have impeachments tried by a group of judges (the nearest thing to “law experts” that existed back then), the Philadelphia Convention discarded the idea and decided that only the House and Senate — like Britain’s Houses of Parliament before them — should be involved in impeachments.

Would this mean that impeachment would be a political act, and that some cases would end up being decided by party line votes?  Well, yes, it would; the founders knew full well that any constitution is open to abuses.  But at the end of the day, governing a country is a political business, and unless the Executive and Judiciary are somehow made accountable — for serious abuses of their power — to the people’s elected representatives, we don’t really live under a government of the people.

When the Convention debated the proper grounds for impeachment, some of its members were in favor of “Treason and Bribery” alone.  But then George Mason of Virginia stood up and said, “Treason will not reach many great and dangerous offenses.  Hastings is not guilty of treason.”

That comment was enough to make the other men in the room think twice.  Warren Hastings, the former governor-general of India, was at that very time being tried in the British Parliament in what was perhaps the most famous impeachment trial ever.  The prosecution was led by Edmund Burke, a statesman universally admired in the former American colonies.

Hastings — along with Elijah Impey, the colonial chief justice — was not charged with any crimes of the ordinary sort.  Hastings and Impey had taken no bribes, committed no acts of treason, and obstructed no legal proceedings.  They were simply accused of governing Britain’s new Indian territories in an excessively violent manner, of seizing Indians’ property without a sound basis in law, and (in Hastings’s case) of leasing soldiers to an Indian potentate for his brutal and unnecessary war against the neighboring kingdom of Rohilkhand.

The founders, a bit flummoxed that they had almost written a constitution that would have let Hastings off the hook, added “other High Crimes and Misdemeanors” to the grounds for impeachment.  This, they thought, was broad enough to cover any serious breach of the public trust, any conduct Congress deemed especially subversive of the written laws and Constitution.

That the founders expected Congress to impeach for political reasons is made clear in The Federalist No. 81, in which Hamilton, in order to rebut antifederalist claims that the new Judiciary would be too powerful, says the following:

There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.

Since Hamilton had already written, in The Federalist No. 65, that impeachment was to be “a bridle in the hands of the legislative body upon the executive,” we can be certain that the idea applies just as well to executive officials like Mayorkas as it does to the Judiciary.  If they try to usurp Congress’s role, then Congress needs a means to strike back.  The Constitution provides such a means.

It has, alas, seldom been used.  Nearly all impeachments of judges have been for bribery, graft, and (in the early days) drunkenness on the bench.  The last judge to be impeached over constitutional issues was James H. Peck, who, in 1826, jailed a lawyer for contempt of court after the lawyer published an anonymous newspaper editorial criticizing one of his rulings.  Judge Peck was acquitted by the Senate, though shortly afterward Congress, in order to prevent a repeat of the situation, passed a law restricting the use of contempt rulings.

The last political impeachment of any sort was that of President Andrew Johnson, impeached in 1867 by Congress’s radical Republicans for willful violations of the Tenure of Office Act.  Johnson, after arguing that the act was unconstitutional, escaped conviction by one vote.

A century later, when the country finally saw a president forced out of office under threat of impeachment, it was Richard Nixon’s minor role in the Watergate cover-up that brought him down — not his lies to Congress about the progress of the Vietnam War or his invasion and bombing of Cambodia without legal authorization.  Yet the latter were much more destructive of the constitutional order.

The failure of twentieth- and twenty-first-century Congresses to take their own powers seriously has led to elected representatives playing a smaller and smaller role in how America is actually governed.  Think of the great constitutional questions of the last sixty years or so — questions like whether to create and later do away with a right to abortion, whether the Fourteenth Amendment calls for the redefinition of marriage, whether constitutional provisions created to establish equality of the races should also require equality of the sexes, whether capital punishment should be abolished, and to what extent federal judges should be involved in the administration of public schools.  These questions have nearly all been decided solely by judges and lawyers, and not by ordinary citizens debating constitutional amendments and then (through their representatives) deciding whether to enact them, the way that their grandparents had decided questions like the income tax, women’s suffrage, and Prohibition.

The situation is no better at the statutory level.  Just consider Title IX, the 1972 law that requires that most educational programs be equally open to both sexes.  Since most people who hear the phrase “Title IX” do so when dealing with one of the huge and expensive bureaucracies that America’s universities have created to comply with this law, one might be forgiven for thinking that Title IX’s text, which you can read here, required the universities to create them.  Actually, it did nothing of the sort; the regulations requiring the bureaucracies are the work of officials within the Office for Civil Rights, not of Congress.  The same is true of the elaborate parallel court systems the Obama administration demanded that universities use to punish people accused of sexual harassment.

At every step, the bureaucrats involved claimed to merely be “clarifying” existing laws or regulations, and the federal courts helped them along by giving private individuals the right to file lawsuits under Title IX, despite the law’s text granting enforcement power only to the Department of Education.  (One of the more extreme judicial findings was that if a college’s male students participate in sports at a higher rate its females, the school is ipso facto discriminatory and must remedy the situation by either cutting popular boys’ sports like wrestling or lavishing money on girls’ sports until more girls sign up.)

Obviously, none of this would have become law if it had to go through Congress first.  But in a country where bureaucrats and judges can usurp Congress’s powers without the slightest risk of blowback, such things are par for the course.  The plain fact is that the House and Senate are both well on their way to becoming ceremonial bodies, much like the Roman Senate after the Principate was established, or the British House of Lords today.

During the Revolutionary War, when American diplomats met with their French counterparts, they often honored the French with toasts of “Vive le Roi!”  And the Frenchmen replied with “Vive le Congress!” because everybody knew who was going to have the chief role in governing America, if the Americans succeeded in their quest to establish a new republic.

But nowadays, it seems that most Americans have forgotten what that war was all about.  And the fact that Mayorkas’s impeachment passed the House by only one vote, and is dead on arrival in the Senate, does not bode well for our country’s future.  Basically, about half the members of Congress are saying that it’s okay for a Cabinet secretary to nullify immigration laws and let ten million foreigners illegally enter the United States, so long as he’s acting in service of ideology rather than doing it for a bribe.

Nor is the House’s refusal to even try to impeach Anthony Fauci, in the face of abundant evidence that he had lied about gain of function research, a cause for confidence in the institutions of government.

Events like Donald Trump’s Supreme Court win show that liberty in America isn’t quite as dead as some people wish it were.  But if this country is ever going to regain the democratic form of government for which earlier generations fought and bled, it’s going to happen only when our elected representatives wake up, shake off their fear of confronting the other branches of government, and remember what Congress is for.

Twilight Patriot is the pen name for a young American who lives in Georgia, where he is currently working toward a graduate degree.  You can read more of his writings at his Substack.

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