Were James Madison, Thomas Hamilton, or any other Founding Fathers to return to earth today, they would be astonished and dismayed to see how the impeachment process is being used for purposes they never had in mind. To understand what they were thinking, one should turn to the Declaration of Independence rather than the Federalist Papers. Here one will find a long catalog of abuses of power attributed to King George III of England and proclaimed as the justification for declaring independence. Recognizing the need for an executive leader who could also serve as head of state to unify the federal union, but wishing to avoid the abuses that provoked the Revolution, the Founders rejected the proposal to establish an American monarchy and, instead, voted to elect a President for a fixed term through the indirect mechanism of an Electoral College (not by a popular vote which they opposed, fearing populism as much as monarchy). Moreover, to protect the state from authoritarianism, they authorized the Congress to impeach and oust any president whose abusive conduct threatened responsible government.

What would truly dismay the Founders, however, is the way impeachment has now become a weapon in the partisan struggle between an opposition majority in Congress and a minority president. They never imagined that such a pattern of divided government could arise. Although they recognized and feared factionalism, they were thinking of intra-Congressional cliques oriented to leading personalities, patronage and current policy issues. They certainly never visualized a gigantic national apparatus of rival organized parties, each with its own constituent branches in every state. The partisanship displayed in the recent House vote on Articles of Impeachment, and the Judiciary Committee debates leading up to it, is extremely partisan, by American standards, and would have been seen as nightmarish by the Founders.

More importantly, the founders did not propose any means to cope with divided government because they did not imagine that their constitutional design would evolve this way. Could they have foreseen the future, they might have thought about how to reconcile the conflicts that would surely arise between any majority in opposition and a minority president. Their failure to anticipate this possibility left a gaping hole in their constitutional design.

Executive Accountability

Had they been prophets as well as statesmen, they might have invented a formula that had not yet evolved anywhere in the world -- i.e., the recipe for avoiding divided governance by making the chief executive accountable to the elected assembly. We have evolved such a system at many levels in America: consider the host of American Cities that are led by City Managers who can at any time be discharged by a vote of the elected Commission; virtually all of our large corporations have Chief Executive Officers who can serve only with the support of Boards elected by their shareholders; and a host of non-profit organizations (professional associations, philanthropic and religious bodies, sports clubs and even political parties) organized on the basis of the principle of executive accountability.

Moreover, all of the world's fully industrialized democracies are now managed by Cabinets subject to discharge by the Parliaments in which they are a super-committee, leaving little more then ceremonial authority to their presidents and constitutional monarchs. This design evolved after the Founding Fathers had created the American Constitution and it was, therefore, not imaginable for them. They did not, therefore, reject parliamentarism since one cannot reject what one knows nothing about.

No doubt parliamentary democracies also have serious problems but the Founders did not think about them. They could not have anticipated that this unknown constitutional formula would prove to have a greater capacity to survive than regimes based on their separation-of-powers principles. Indeed, except for the American case, all the countries that followed our example have had a rocky history with frequent collapses and major barriers to economic growth. By contrast, although parliamentarism by no means assures economic success, it is no accident that all of the world's industrialized democracies, except ours, have adopted the parliamentary (executive accountability) principle. The recent history of Post-Communist regimes adds further support to this finding, as Jerzy Wiatr has shown. He proves that those relying on parliamentary principles of executive accountability have done much better than those following the American separation-of-powers model (a prepublication draft of his paper is available on request).

The irrelevance of the impeachment process to the resolution of conflicts caused by divided government becomes clear when one considers the succession rule mandated by the Founders, namely that the Vice President should succeed an ousted president. This made sense in the original constitutional context in which presidents were expected to be non-partisan heros and charismatic leaders who could unify the country, symbolize the nation, and avoid factionalism while executing the laws made by Congress but taking no active lead in developing policy, something they viewed as a "legislative" function.

Moreover, the voting rules of the Electoral College de-linked the office of Vice President from that of President -- the incumbents were expected to be the top two vote-getters, rivals rather than allies of each other. In their vision, the Founders anticipated that if the most popular candidate for President betrayed the republic, he could be replaced by the second most eminent leader as a non-partisan stand-by but not as someone who would perpetuate the policies of a minority party.

Parties and Primaries

They would surely have been astonished by the notion that the President could select the Vice President and that both would be elected on a joint ticket as national leaders of a single formally organized political party. Of course, this is a recent and important change in our living constitution, although it is not based on any formal amendment. Until the consolidation of primaries as a means to select presidential nominees, national conventions provided an arena in which rival political bosses selected relatively weak but respectable candidates who could not challenge their local power nor exercise the strong national leadership that makes divided government so problematical. Even the choice of Vice Presidential candidates was handled as a political bargain designed to "balance" the ticket, not to choose a protégée of the Presidential candidate.

The primaries process has, of course, marginalized national party conventions, transforming them into a public ritual to launch the final battle between the rival nominees and to legitimize choices already made before the convention meets. These results are constitutionally transformative. To win in the primaries, candidates need to build personal coalitions, raise large amounts of money, and evolve a political philosophy on which not only to campaign for election but also to base their administration and legislative initiatives if they win. They have by now also acquired the right to hand-pick a running partner who will support the same policies and serve as the president's strongest aide. This process now empowers the presidency (including the Vice President) as a unified legislative team never contemplated by the Founders.

Consequently, if an impeachment process were to succeed today, the ouster of the President would not cause a significant change in the presidency -- the new leader would continue the policies of the incumbent team and the basic contradictions of divided government would remain. None of these developments could possibly have been anticipated by the founding fathers. Thus the remedy they designed to curb presidential authoritarianism is utterly irrelevant to the new problems created by divided government. Of course, presidential authoritarianism has become a global problem -- witness Saddam Hussein and our current struggle with Iraq -- but in these countries impeachment is also irrelevant because no elected assembly is powerful enough to oust such a dictator.

The problems of divided government have two basic solutions: they may be avoided by the rules of executive accountability as seen in the city-manager, corporation, voluntary association, and parliamentary modes of organization.

I believe there are ways whereby the effective leadership powers in American government could be made politically accountable while leaving the current structure formally intact -- but this is not the place to discuss these ideas. However, so long as we choose to perpetuate the separation-of-powers principle, the problems of divided government will remain with us.

This makes it extremely important to think about alternative solutions that would strengthen the pressures for bi-partisan agreement in a divided government, thereby alleviating its tensions. This also means abandoning confrontational tactics that merely intensify conflicts between the Congress and President -- these include both impeachment and resolutions of censure. Continued reliance on these devices will, I predict, surely lead to an ultimate collapse such as that experienced by all other separation-of-powers regimes.

Both/And vs. Right/Wrong

Let us start by making the distinction between polarizing processes based on confrontational paradigms (the Right/Wrong approach) and what is, indeed, far more commonplace in the real world, the resolution of conflicts based on competing but legitimate interests through processes of conciliation, negotiation, compromise, and friendly intervention by outsiders (the Both/And premise). Examples of the latter easily come to mind. They include the mediation of labor/management disputes, family counseling to deal with marital discord, reliance on market mechanisms to handle competition between business rivals, diplomacy and international interventions to prevent wars between states, and a variety of techniques designed to help clashing ethnic communities resolve their differences. All such both/and procedures involve mutual accommodations that meet some but not all of the demands of participants; in short, they require compromises. Most problems of divided government in America have, historically, been resolved by such means -- for details, see my article in the Dogan/Kazancigil book (citation).

Increasingly, however, our contemporary cultural mode rejects such compromises. The prevailing norms promoted by the mass media, our system of criminal law, and even the politics of elections and majority rule, presuppose winners and losers, the confrontational right/wrong mode. Ideally, wrongs will be righted, justice will prevail, the innocent will be vindicated and the guilty punished. Instead of viewing competing groups as having legitimate interests to be reconciled, the right/wrong mode compels us to view rivals as antagonists involved in struggles between good and bad guys (between God and the Devil): this should lead us to take sides and press for victory, to reward the righteous and punish the evil. The impeachment question is universally scripted in these terms, although there is no consensus on who is good or bad. A vivid symbol of this orientation can be seen in CNN's Crossfire program where every issue is presented as a clash between the "right" and the "left" with no middle ground. In this right/wrong mode, compromise is viewed as a craven surrender of important principles. Virtuous politicians, citizens, and the mass media are exhorted to struggle relentlessly so that truth will finally triumph over error. For earlier comments on this soap opera script see /scripts.htm

To summarize, the impeachment process, as re-constituted anachronistically, is no longer seen as a way to oust authoritarian and corrupt leaders but rather it has been reconceptualized as a way to resolve the unavoidable confrontations generated by divided governance. However, this is a desperate expedient that cannot solve the problem -- indeed, it can only make it worse. Since ousting the president can lead now only to his replacement by a partner Vice President sharing the same policy and party orientations, the process, even if successful, cannot resolve the basic clash involved in partisan divided government.

No doubt impeachment can still be used to discharge a president who has seriously abused his powers, as the Nixon case reminds us. However, the viability of such a case rests on the support of a significant number of members of the minority party. Without their agreement, it may be impossible to secure the required two-thirds majority in the Senate. Such support is, however, good evidence that, in such cases, the real problem is not that of divided governance. This has happened only once in American history: when Richard Nixon was impeached. The fact that the current impeachment is not really about the oppressive misuse of presidential power, but reflects, instead, the tensions of divided government is shown by the exceptionally partisan character of the House impeachment proceedings. However, since the replacement of Clinton by Gore will not overcome the divided government problem, we need to look more deeply to find the underlying explanation for the use of impeachment today.

The Secondary Agenda

Such an explanation can be found, I think, as soon as one recognizes the hidden agenda of the impeachment process. Since it is really not a big secret, I prefer to call it the secondary agenda. This term also suggests that the primary agenda has sincere, though misguided, support. No doubt in every case of divided government there are legitimate causes for complaint on both sides, and the negotiations involved in achieving bi-partisan agreements can be blocked in many ways that heighten tensions and excite anger. This is clearly evident in the rage against Clinton that we see today -- it has roots that long antedate the Lewinsky case.

This rage is reflected in the primary agenda, even though rational calculation shows that impeachment will not enable the opposition majority to replace the incumbent with a member of their own party. However, majority party leaders may well imagine that if the President and his party can be sufficiently discredited by the impeachment process, his credibility will be undermined and he will make such serious errors of judgment that it will become easier for the opposition to win the presidency in the next elections. Since they cannot admit to this secondary agenda without undermining their efforts, members of the opposition majority need to conceal their main goal while keeping the spotlight on the impeachment process as though ousting the president were, indeed, their real objective.

The secondary agenda exposes the fact that the impeachment movement was not powered by any specific complaints, such as those that animated the Declaration's protests against the King of England. Rather, they stemmed from a continuing quest for any presidential actions that might provide a plausible pretext for launching Articles of Impeachment, starting with things he did -- or may have done -- long before he became president. These were to be the pretexts for action, not the driving force. Truly impeachable offenses will be conspicuous from the beginning. In the present case, it was not until January 1998 that the series of fruitless inquiries starting with the Whitewater business, produced a plausible charge. Bill Clinton's appetite for unconventional sex had tempted him into a liaison with a White House intern.

The opposition greeted this revelation with enthusiasm. Although infidelity by itself did not provide an effective reason for impeaching the president, his opponents soon realized that it could be used to trap him into lies and cover-up strategies that might indeed be impeachable -- and it would provoke the wrath of the well-organized moralists backing the Republican Party.

Even so, impeachment could not have gone forward without some external factors that made it possible. The first of these was a decision by the Supreme Court which sanctioned civil suits against the president while he was in office. Lower courts had ruled that such suits should be filed only after the president left office, thereby permitting him to focus his energies on the performance of official duties of far-reaching importance for the nation. This reversal created the first great trap, a no-win situation in which admission or denial of the affair with Lewinski would have fatal consequences for the president. However, even this would not have been enough without the ardent efforts of Kenneth Starr as independent prosecutor. His unlimited budget and fierce determination to find the president's faults provided the information and helped to set further traps into which the president also fell. Thus the Independent Prosecutor law also became a key element in the pattern.

The Partisan Purpose

If the real purpose of impeachment had been to oust an errant president, as it was in the case of Richard Nixon, members of both parties would have joined forces to support the impeachment effort. The fact that this was not the case with Clinton did not become transparent until the House Judiciary Committee, upon receiving the referral from Kenneth Starr, immediately proceeded to publish the material without giving the President any chance to rebut the evidence. This step was certain to antagonize members of the Democratic minority on the committee, leading them to unite in opposition to the effort.

Since the ultimate Senate verdict in an impeachment trial requires a two-thirds majority vote, it must have been clear to all that the impeachment process could succeed only if enough members of the minority party were willing to support it. The Republican majority obviously knows this and would have sought bi-partisan support if they really wanted to oust the president. Their disregard for the Democrat's concerns clearly showed that their basic goal was not, as ostensibly declared, to oust the president and have Al Gore replace him. Doing so would make Gore a more formidable opponent in the next presidential elections. Their true goals, therefore, involved a continuing effort to harass the minority president without removing him -- and the easiest way to assure this outcome would be to antagonize the President's party so as to make sure they would want to block an impeachment verdict in the Senate.

Since the proposal to censure the President has emerged as a possible way to short-circuit the impeachment process, let me add a comment here about this idea. The public debate has focused on whether or not such an action is "constitutional" and whether it would be sufficiently punitive. Both arguments miss the point. Whether or not the Founders authorized such a resolution of censure seems irrelevant since, after all, the practice was not forbidden and Congress has done many things the Founders never thought possible.

The more relevant question is what a resolution of censure would accomplish. Many Democrats are angry at the President's behavior and would support a resolution to vent their criticisms. However, they do not want him ousted from office because it would harm their party and their goals. Perhaps there is also another consideration: those who wish to become candidates for president may be reluctant to give Al Gore the advantages he would surely get if he became President before 2000. As for the opposition majority, they understand that censure would bring quick closure to a process of presidential harassment they seek to extend indefinitely.

The Changed Context.

To look beyond the more immediate questions raised by constitutional design and the changes which make its current dynamics so different from what the Founders envisioned, we need to consider the broader socio-economic and political context of the modern world. Its basic values and requirements are radically different from those of the late 18^th century when the American Constitution was invented. To highlight these differences, consider that Thomas Jefferson, revered author of the Declaration which asserted the fundamental equality of all people, was himself a slave owner and had a long-term affair with one of his slaves by whom he produced off-spring and a continuing line of proud descendants ( see U.S. News article for details).

No doubt by the standards now applied to the impeachment of President Clinton, Jefferson would stand guilty. Yet that would surely represent an extreme of anachronistic misjudgment. In his days, Jefferson met all contemporary standards of respectability and honor and was surely one of our greatest leaders and exponents for democratic values. Symbolically, his face on our $2.00 bill ranks him next to Washington, the icon of our $1.00 bill.

To appreciate the current climate, we need to remember that the agro-mercantile and relatively isolated context of Jefferson's day has been replaced by a new kind of global society generated by the Industrial Revolution; the pervasive ideals of nationalism and democracy that have spread throughout the world; and the rise and fall of industrial empires -- in our new global context, all parts of the world and their problems have become interdependent. Globalization has intensified every country's need to respond rapidly to complex interactive planetary forces in a way that will command widespread acceptance by affected citizens, including those who may be called upon to pay for public policy decisions with their lives and fortunes.

This necessity is especially urgent in the United States where the compelling requirements of super power status conflict with the essentially self-wounding propensities of an archaic constitutional design. The contrast struck me forcefully in mid-December 1998 when the President was in Tel Aviv and Gaza trying to promote the peace process among Israelis and Palestinians at the precise moment when the House Judiciary Committee was undermining his leadership capabilities by hurling its deadliest weapons, approving Articles of Impeachment against him. A few days later, the crisis with Iraq erupted as the House was launching its debate on these Articles, approving two of them for consideration by the Senate in a forthcoming trial. The need for urgent and careful consideration of a host of complex issues by all branches of government was never greater, yet the impeachment process undermines all three branches at once, and further impedes all efforts to achieve non-partisan consensus in a divided government. Unless a quick compromise solution can be found, the ability of the American government to govern during the coming years will wither and democracy may be put at risk.

Efforts to cope in a sensible way with these modern problems are increasingly hampered by pressures for uncompromising acceptance of doctrinaire positions rooted in the Right/Wrong philosophy. One such pressure reflects the growing power of anachronistic efforts to restore the past. Neo-traditionalism is widespread globally, and it includes fundamentalist movements in America which have now become powerfully organized and able to compel politicians, especially Republicans, to respect their values as a price for necessary electoral support. The latest symbol of this project can be seen in the resignation of Robert Livingston from his leading House role in the wake of revelations about his private life. The term, Sexual McCarthyism, is being used to refer to this kind of neo-puritanical pressure which, of course, is also an explosive (and salacious) part of the impeachment effort against Clinton.

At the other end of the political spectrum, we are now experiencing a mounting flood of urgent demands from oppressed minorities, indigenous peoples, the poor and homeless, and many kinds of culturally marginalized communities. Their calls to action are as urgent and politically compelling as those of the neo-traditionalist right. Democrats in Congress are especially sensitive to these demands which often call for new expenditures in support of a wide range of social programs, generating confrontations with those on the right who insist on cost-cutting and tax reduction projects that favor the more affluent and successful groups in our society.

The mass media and, increasingly, the INTERNET, amplify these conflicting demands and translate them into either/or terms that hamper the efforts of moderates willing to look for both/and compromises that may solve some critical problems. Following the collapse of the Soviet Union and many other Communist regimes, it has become more difficult for the media to find widely acceptable villains for their confrontational and lucrative scripts. The impeachment effort and the Starr inquiry provide a new scenario in which to demonize and celebrate powerful protagonists -- not abroad, as in the past, but right here at the center of our political system. They have surely exploited this opportunity with abandon.

An Alternative Paradigm

In this increasingly frightening context, should we not be thinking about a paradigm shift from the right/wrong scenario implicit in the impeachment process, to an alternative both/and framework in which the legitimacy of competing interests and different values are recognized, and we focus on designing means to accommodate as much as possible the diverse interests of rival groups? Actually, in many contexts, we already do this: think about labor management disputes, marital problems, inter-state relations and, increasingly, inter-ethnic conflicts, as mentioned above. Various techniques for conciliation and compromise have been developed which can enable rival communities to live together -- consider the recent events in Northern Ireland where two key leaders have just been given the Nobel Peace Prize. The literature on peace and conflict resolution is rich with theories and experience relevant to the finding of such both/and solutions.

The conflict between an opposition majority and minority president in our constitutional system may be viewed as such a struggle. The easiest way to resolve such clashes, as noted above, is to hold chief executives accountable to their elected assemblies. We respect this principle in modern corporations, professional societies, city-manager municipalities, and all industrialized democracies except the U.S. Even if we continue to reject this sensible rule for the solution of the dilemmas presented by divided government, all may not be lost. At least, let us consider some both/and compromises that might help us deal more effectively with the problems of divided governance.

These certainly do not include impeachment or censure, projects which merely aggravate the discord. No doubt, as the Nixon case shows, impeachment can help when, as in our Declaration, the ruler has become autocratically oppressive. The crucial point is that unless members of the president's own party concur in such a verdict, it cannot solve the problem. The two-thirds rule in the Senate means that an opposition majority can expect to win only if it has more than 66% of the seats. Without such a majority, the dominant party in the House can only win an impeachment battle if it is willing to make the process non-partisan. Any purely partisan effort to impeach a president must, therefore, be rooted in the divided government syndrome rather than in the real abuse of power contemplated by the Founding Fathers.

If we reject impeachment as a useful tool for dealing with the problems of divided government, can we think of any alternative techniques? They would involve, I suggest, various kinds of conciliation processes designed to facilitate non-partisan agreements between the President and Congress. In a way this means returning to the status-quo-ante in which moderation on both sides enabled agreements to be reached on a wide range of important issues.

However, perhaps these traditional mechanisms could be strengthened if we would be willing to think seriously about new procedures -- like those which brought some order to the troubled scene of labor-management conflict when new rules were enacted. Various mechanisms might be used to achieve this goal and I am confident that, with good will and understanding, they could be carried out in the U.S. without fundamental amendments to the Constitution. However, such innovations can scarcely be accomplished overnight and they will require a lot of public discussion and consensus building.

Perhaps we might even consider a formal amendment to the Constitution that could, for example, empower Congress, as a last resort, to vote both the president/vice president and themselves out of office, while authorizing new general elections that would, hopefully, produce an un-divided government. Some kind of non-partisan, national union, structure would have to be created to conduct the government during the interim period. The mere discussion of such a radical solution might help all of us clarify the issues and come up with more creative solutions to our current dilemma, including methods based on the both/and philosophy.

Such matters require far more extended discussion than I can offer in this short commentary on the impeachment process as a constitutional anachronism in American politics. However, we may find some clues through the comparative analysis of the experience of other countries that have accepted our separation-of-powers principles -- I intend to write a commentary on this topic next. Their constitutional debates during efforts to reestablish democracy after periods of collapse might be especially helpful.

However, it also seems fair to say that until there is a wider recognition of the essential futility of impeachment (or censure) as a right/wrong process that aggravates the basic problem of divided government without doing anything to solve it, we will scarcely be able to focus our attention on finding alternative both/and solutions that have a better chance of working.

Honolulu, December 21, 1998.

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