By Fred W. Riggs
The American separation-of-powers constitutional system has, in contrast to other regimes based
on the same structure, been able to survive without a collapse for more than two centuries.
However, this remarkable achievement by no means guarantees the indefinite survival of this
regime in the future. Every year and every new president brings new challenges that will
continuously test the ability of American democracy to cope with new crises -- perhaps the day
will come when it, too, will succumb.
The current impeachment crisis provides a significant test. Bill Clinton is the first elected
president in American history to be tried in the Senate. President Johnson, who succeeded
Lincoln after his assassination, was the only other president to be so tried, but he had not been
elected. Current discourse on the impeachment process follows a soap-opera script rather than a
sense of historical and constitutional dynamics. Were that not so, I think the historians, political
scientists, and lawyers, to say nothing of journalists and commentators might be able to go beyond
the discourse on daily developments we have heard for so long. At least, here are some of my
thoughts on our future prospects.
First, I think that the long-term survival of the American regime has been possible because, among
other things, an intermediate level of party loyalty in Congress has permitted semi-stable
negotiated agreements to be reached between the executive and legislative branches, even when
they were divided on party lines. Actually, even when the same party held sway in these two
branches, there was no assurance that the President's preferences would prevail in the Congress.
Surely that became apparent during the Roosevelt years when, although the Democratic majority
normally supported New Deal legislation, it rejected Roosevelt's effort to change the rules
governing the Supreme Court where some of his favorite measures had been invalidated.
The idea that impeachment could be used as a weapon in the struggle between the branches became significant only with the Nixon presidency. Even in that case, it seems to me, the original intentions of the Founders was not actualized. They had not anticipated the problems that a divided government could create because they did not visualize and would have condemned national political parties with competing programs or ideologies. Not only did they not imagine how partisan loyalties would affect Congressional behavior, but they did not expect the President and Vice President to be political "twins" as they have become since presidential primaries replaced the role of national conventions in selecting presidential and vice presidential candidates. Now a presidential winner in the primaries is able to select h/er running mate and the convention serves only to launch the national campaign. As a result, ousting the president will not change the ideology or party affiliation of the chief executive.
One may well argue that in the Nixon case, presidential abuse of power as revealed in his efforts
to use the CIA and FBI to undermine his opponents truly justified using impeachment as the
remedy prescribed by the Founders. However, had it not been for the resistance offered by a
Democrat-controlled majority in Congress to his policy initiatives as a Republican President,
Nixon would surely not have resorted to these reckless expedients. So far as I can see, he did not
set out to become a tyrant or autocrat -- it was, rather, his impatience with the obstacles divided
government always poses that led him to think that, instead of seeking negotiated compromises,
he could somehow force his opponents into compliance. The fact that members of his own party
in Congress were willing to join forces with the opposition party shows that the president's
offences had indeed reached the impeachable level.
When we look at the Clinton presidency in this light, we will see, I think, that the first error was
committed by Clinton himself. When he came to office in 1992, he was committed to far-reaching
changes in government that required comprehensive legislation and he counted on the Democrat
majority to provide the support needed to assure victory. Perhaps his experiences in England as a
Rhodes scholar had led him to expect that party loyalty would also enable him to win support in
Washington, as they would for any triumphant party in a British election. Perhaps, also, his
Arkansas background had not prepared him to understand the complexity of overlapping loyalties
that govern the votes of members of the U.S. Congress.
The most dramatic example of this misunderstanding involved the comprehensive health plan that
had been designed by a commission chaired by Hillary Clinton. To understand why this plan was
so soundly defeated one needs to remember that on matters affecting the priorities of their
committees, members are inclined to vote with a "subgovernment" rather than on party lines.
Even with a Democrat majority, Clinton should have understood that he could not flout the
preferences of too many committees. The many different vested interests threatened by
comprehensive health legislation virtually assured its defeat. When cross-pressured by these
commitments, Democrats are likely to give priority to the latter. The sharp division along partisan
lines shown in the House vote on Articles of Impeachment is truly exceptional. In the end,
Clinton's reliance on partisan loyalties to gain Congressional support for far-reaching changes was
frustrated and he had learned, by the time his second term began in 1996, that he needed bi-partisan support in Congress, and that he had to focus on projects of limited scope.
By this time, however, the reactions against
him had become strong enough to enable the Republicans to gain a majority
and to bring into their leadership a fighter like Newt Gingrich whose
"Contract with America" was as broad in scope as Clinton's original vision
of "change" had been. Like Clinton, Gingrich did not believe in the old
pattern of negotiated compromise and assumed that, with a new Republican
majority, he could impose his party's preferences on the President. When
it became apparent that Clinton was quite willing to veto legislation, a
crisis developed which reached its pinnacle when he closed down government
in 1977 in response to a budget impasse.
Whereas Clinton learned from his early defeats that he needed to look for bi-partisan support and
had to move toward the political center, Gingrich refused to accept defeat and chose to sponsor
impeachment as a way to oust the president -- perhaps he did not understand that even if he
succeeded, the Republicans might be no better off with Al Gore as President. More plausibly, he
may have thought that the impeachment threat might compel Clinton to accept Republican
policies, or that the American public would be so alienated by the revelations resulting from the
impeachment inquiry that they would give the Republicans an even larger majority in Congress
during the 1998 elections. When it became apparent that this strategy had not worked, Gingrich
chose to resign as Speaker and to leave the House.
Political contexts are as important in constitutional matters as textual context is in understanding what words mean. In ordinary discourse, a bachelor is thought of as any unmarried man. However, we instinctively resist the notion that the Pope or priests are bachelors. This challenge may lead us to redefine bachelorhood as the status of a man eligible for marriage. Thus re-defined, the paradox vanishes. Similarly, we need to redefine our understanding of words used by the Founding Fathers when our contemporary context radically changes their original sense.
One example could be what they meant by arms when they wrote
the Bill of Rights. They surely were thinking of pistols and rifles that
could only shoot one bullet at a time. In today's context, however, arms
include high powered machine guns whose uses are quite different from
those of the Founders' "arms."
Similarly, to understand what they had in
mind when talking about impeachable offenses, we should remember the
Declaration of Independence which grounded the Revolution itself on
protests against the abuse of his authority by a British king. The
Founders defined impeachable offenses in terms of flagrant abuses of power
-- they could not have been thinking about the charges that a
congressional majority would devise to attack a minority president.
Moreover, had they been prophets or visionaries, they might have
stipulated that impeachable offenses would but not include efforts by a
minority president seeking to defend himself against attacks by a
congressional majority. If such reactions were impeachable, then any
congressional majority might be tempted to provoke (trap) a president
into actions that could, subsequently, be treated as impeachable.
If defensive reactions are impeachable, then all future American presidents belonging to a minority
party are vulnerable. They open themselves to intensive scrutiny of their private lives, to
vulnerability for all the errors they committed prior to being elected, even if they were known in
advance -- as was the fact that Andrew Jackson had killed a man in an illegal duel before he
became president. The Supreme Court's decision in the Paula Jones case would have enabled
anyone to sue Jackson for damages, as it now authorizes future plaintifs to take any future
president to court. If the Independent Prosecutor act is extended, it will also give the opposition
forces an agent with unlimited funds to hunt for any possible presidential error that might make
him impeachable. Moreover, if an opposition majority comes to think that instead of looking for
compromises to achieve legislative agreements with a minority president, they should open
impeachment inquiries, tremendous damage to the political system in America will result. At
least, that is my opinion and I am really afraid that the way impeachment is now being used marks
an extremely dangerous trend that could well have fatal consequences for democracy in America
in the coming years.
However, if the current crisis could lead to a widespread recognition of the dangers involved in using impeachment as a weapon in the continuing struggle between a minority president and a majority opposition in Congress, it might generate enough interest to produce a serious discussion of our constitutional problems -- not just how to support the rule of law, but, also, how to overcome the deep problems produced by the separation-of-powers. If such a discourse should ever occur, I believe we would need to pay attention to fundamental changes that could be achieved without formal amendments to the constitution. I am persuaded that just as the impeachment option is a dead end that cannot solve the problems of divided government, so any proposed amendment that would seriously deal with the separation-of-powers would generate so much resistance that it would be doomed to fail. However, I can imagine a number of strategies for change short of a formal amendment that could well leverage our polity in the direction both of more executive accountability and also more serious consideration of how compromise and mutual accommodations can work within the framework of divided government. I cannot deal with that subject here but I would like to end here with the hope that the fright caused by our first serious attempt to impeach an elected president will eventually lead to serious reassessment of the problems inherent in our constitutional system.
See linked pages: IMPEACH
Updated: 14 January 1999
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