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IMPEACHMENT AND THE SEPARATION OF POWERS
>"There is another opinion entertained by some men of such judgment and >information as to lessen my confidence in my own. That is, that the >Legislature alone is the exclusive expounder of the sense of the >Constitution in every part of it whatever. And they allege in its >support that this branch has authority to impeach and punish a member of >either of the others acting contrary to its declaration of the >sense of the Constitution." --Thomas Jefferson to W. H. Torrance, 1815. >ME 14:305 > >i read your webpage at >http://www.geocities.com/CapitolHill/7970/jefpco59.htm >and found it very interesting... particularly the above quote. if i >understand correctly, is t.j. saying that since now, with regard to >impeachment, the legislature is performing a duty normally undertaken by >the judiciary (accusation and prosecution), suddenly there is a loss of >balance between the branches? that is, if the legislature decides that >the "sense" of the constitution is "this" (for today, that perjury is a >high crime) and you (public official) have defied that "sense", then the >legislature has the unique power of being judicial? Jefferson made this point because he did not believe that the judiciary SHOULD decide the "sense of the Constitution" for the other branches of government. He was always opposed to Judicial Review. His original belief was that each branch of government should decide for itself the meaning of the Constitution. What he is saying here is, SINCE the legislature is indeed authorized to impeach a government official based on THEIR interpretation of what the Constitution means, then maybe -- just "maybe" -- they should be the branch of government that decides what the Constitution means for every other branch of government. In other words, he is not directly defining impeachment; he is assuming a kind of definition of impeachment to make his point about judicial review. I was using that assumption which he made as though he were defining impeachment, since he apparently accepts that assumption as valid. It is important to separate the two issues that are being compared: impeachment and interpretation of the Constitution. Jefferson never directly defined impeachment, so we have to try to discover what he thought of it in this indirect way. Thus, he is not saying there is a loss of balance between the branches. He is saying that the legislature interprets the meaning of the Constitution in order to impeach, and therefore, perhaps it should interpret the meaning of the Constitution INSTEAD OF the supreme court doing so in other judicial matters. Impeachment is only for the purpose of removing a civil officer from office; therefore, it is not really in conflict with the functions of the judiciary, and there is not any imbalance created by the legislature performing this function. In a sense, therefore, it could follow as you put it. If the legislature says that perjury is included under "high crime and misdemeanors," then they have interpreted the meaning of the Constitution within the bounds of their proper authority. Drawing the matter to a theoretical absurdity, we could say that if the legislature chose to make jay-walking a "high crime and misdemeanor," they could impeach the president and remove him from office on that account. They have the power to interpret the Constitution for the purposes of impeachment, and that is what they would be doing if they chose to go outside the bounds of reason. But keeping things in their proper perspective, we must note that the point Jefferson was making was NOT that Congress can make any crime or misdemeanor they wish an impeachable offense. The main point that is useful to us is, that a person is impeached for offenses AGAINST THE CONSTITUTION. In other words (and as an example), if the Constitution says the President should do something, and he refuses to do it, then he has violated his obligations under the Constitution. Jefferson's point is, in determining what the President is obligated to do under the Constitution, the Legislature acts for itself in interpeting what that obligation is. For us, that helps define what an impeachable offense is in Jefferson's view: an offense against constitutional duties and obligations as are imposed on the office which the person being impeached occupies. This is what Jefferson is assuming when he makes the statements quoted above. Although technically speaking, that same power to interpret the Constitution for the purposes of impeachment gives the power to interpret what "high crimes and misdemeanors" itself means, that is not Jefferson's point. He is already assuming that it means official misconduct that undermines constitutional government. He is only saying that, given that assumption, the Congress then is empowered to interpret the Constitution in order to determine whether the misconduct alleged does indeed undermine constitutional government. >is this the constitution's achilles heel? why was it that the power of >impeachment was given to the legislature (understanding that they have >large numbers, varied politics, and were not appointed by the president >unlike the justices) rather than having a more balanced process? why >not a national referendum? The purpose of impeachment is to protect the republic and to compel adherence to the Constitution. The power to impeach COULD have been given to the judiciary. But under a government such as ours, the people themselves are the ultimate sovereign. It is their responsibility to exercise a general oversight of the operation of government. If the people do not insist on constitutional government, then it will quickly disappear. The judiciary is not elected by the people, nor directly responsible to them. Since the houses of Congress are elected by the people, and are their agents and representatives in the national government, then it follows that this is the branch of government that should be in charge of impeachments and of being the ultimate safeguard of the Constitution, compelling all government officers to adhere to it. After all, it is only through the legislature that the Constitution can be amended -- not by the President, or by the judiciary. They stand guard over the content of the Constitution, and so they are the natural ones to protect it. A national referendum would be very cumbersome. It would mean something like a political campaign carried on in the press and occupying the attention of the whole nation until settled. That is why we have representatives: to do the business of the nation on our behalf. So, it is more practical that they tend to all impeachments. Remember: all the other officers of government, including the judiciary, are subject to impeachment also. >i've always been totally fascinated with jefferson. do you have any >biographies that you think are exceptional (if you too are fascinated by >him)? I have put a very interesting biography of Jefferson on the web. It is available at: Life of Thomas Jefferson, by B. L. Rayner http://www.geocities.com/Athens/Forum/1683/ljindex.htm Rayner's lively and interesting full-length biography, published in 1834, emphasizes the role of republican principles in Jefferson's life and thought. It contains many excerpts from Jefferson's writings as well as anecdotes taken from the writings of those who knew Jefferson. It presents a dramatic and passionate portrayal of Jefferson's life, with special emphasis on his contributions to the creation of the American republic. The book is completely revised and corrected, and is divided into 39 chapters. The best known and most authoritative biography is the six-volume set by Dumas Malone. A good, readable one-volume biography is the one by Willard Sterne Randall.