The Framers’ Answers to Three Myths About ImpeachmentRoundup
tags: Founding Fathers, Constitution, impeachment, framers
Garry Wills, a journalist and historian, is the author of numerous books, including Nixon Agonistes (1970), Inventing America (1978), Explaining America: The Federalist (1981), and Lincoln at Gettysburg (1993), which won a Pulitzer Prize that year. His most recent book is What the Qur’an Meant: And Why It Matters (2017).
Myth One: “Co-Equal”
Adam Schiff, the chairman of the House Intelligence Committee, who has been overseeing the impeachment hearings, is badly misrepresenting the Constitution when he says that the Congress is a co-equal branch of government with the presidency. It is not. It is by far the superior branch. James Madison made that clear for all time with his lapidary sentence in Federalist No. 51: “In republican government, the legislative authority necessarily predominates.” Necessarily. Discussion over. Final as that statement is, Madison backed it up with what he assumed elsewhere. For instance, he said that Congress had the power to take any land where it meant to locate the federal government (this was then not yet decided) “by virtue of its general supremacy” (Federalist No. 43).
All the highest powers of our constitutional system are vested in the Congress: the power to make war, to make laws, to ratify treaties, to raise money. It establishes and funds the executive agencies. It establishes the site and size of the federal courts (including the number of justices on the Supreme Court, which it has changed several times). It even has the power to approve the proper government of the states, according to Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government.” It makes no sense to have a republican federal government made up of non-republican states. Congress therefore can act “against aristocratic or monarchial innovations” in the states (Madison, Federalist No. 43).
But the crusher is this. Congress can, by impeachment and conviction, simply remove members of the other two branches, including its highest members (the president, the chief justice). Neither of those other two can do the same to Congress. Among the many things that show President Trump knows nothing about the Constitution was his October 6, 2019 tweet that said Adam Schiff and Nancy Pelosi should be “immediately Impeached.” Congress impeaches. Its members cannot be impeached.
What has led to the common notion that the branches are “co-equal” (an odd term, that; like “more unique”)? There have been a series of encroachments by the other two, especially by presidential power. Congress, which has the sole right to declare war, has not done so since 1941. It has allowed extension of the title of “commander in chief” outside its solely military scope. Article II says, “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the service of the United States” (emphases added). He is not “our commander in chief.” He is not even commander in chief of the National Guard, except if and when it is called out of its proper sphere in the states (that is, federalized). And as for control of the army and navy, that depends on the antecedent, Article I power of Congress “to raise and support armies… to provide and maintain a navy.”
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