MEET THE DEMOCRATIC PARTY, MAULER OF CONSTITUTIONS
Over the summer Robert Bork observed that bad presidents make for interesting Constitutional law. But back then our very bad president stood more or less alone politically. Richard Gephardt and Tom Daschle thought impeachment was a reasonable possibility. Patrick Moynihan called the president’s alleged crimes impeachable if true. Senator Byrd warned against tampering with the jury. Senator Lieberman was, gosh what’s that word again? Oh, that’s right, outraged with the president’s behavior. Since then the Democratic Party has swallowed the president like a poison pill, and men of good conscience have lost their nerve. Now that we stand on the precipice of the morally gray “post-impeachment America,” we can expand Judge Bork’s felicitous observation. Craven political parties make for meaningless constitutions.
The Democratic Party, all of a sudden, is behaving like a bunch of teenage girls at a Leonardo Di Caprio movie over the doctrine of “original understanding.” The Party, including the supposed White Knight of Senatorial prerogatives, Robert Byrd, have for over a year acquiesced to the unconstitutional appointment of Bill Lann Lee at the Justice Department. Indeed our president has admitted that he would have “liked” to have appointed Lee in a “constitutional” manner, but it just wasn’t doable.
I know this is quaint, but I always thought that if something isn’t doable constitutionally it means that it should not be done. But such quibbles haven’t stopped the Democratic Party for most of this century. Recall that Woodrow Wilson bemoaned the American peoples’ “blind worship” of the Constitution. Herbert Croly, the father of federal progressivism and founder of the New Republic, believed that a national government could and should run roughshod over the constitutional order. More recently, liberals, in and out of the Democratic Party, have been finding “penumbras” to the Constitution the way children find shiny shells on the beach. Jesse Jackson, et al., have been denouncing Constitutional principles as the pernicious offspring of racist white men for more than a generation — and to great effect.
Our own very bad President Clinton and his allies have tried to use the Commerce Clause to regulate schools and community police programs. And, whatever you think about abortion as a moral issue, you would be hard pressed to explain why it hasn’t been cancer constitutionally. The intellectual justification for the liberal approach to the Constitution has long been that the Founders could never have predicted the demands of a modern technological society. Thus, we must impose modern meaning on outdated notions. Now, in a stunning pirouette of hypocrisy, they have turned this doctrine completely on its head. Now they are imposing flagrantly outdated constitutional notions on today’s situation.
Charles Ruff spoke eloquently in his boss’s defense about the Framer’s view of impeachment. It was a grave constitutional mechanism in their eyes which would reverse the will of the people. Removing Clinton would be a crime against popular sovereignty as conceived by the Founders.
This is bunk.
The Founding Fathers were working with different constitutional tools than we are today. The Framers, when discussing impeachment, believed that Vice-president and president would likely come from different parties. Well, not really parties per se, because they didn’t totally anticipate modern organized parties. But the candidate with the most votes would be the president, the second most would be the vice president. Thus, a wildly popular pro-slavery president, if impeached, could be replaced with an anti-slavery Vice-president. That really would be reversing the will of the American people. (But then again, maybe not. Because the president was to be elected by members of the Electoral College. presidents still are today, but really only as a formality. The Founders didn’t anticipate this.)
But it doesn’t stop there. According to the assumptions of the Founders, Senators — who would try the president — would not be popularly elected. They did not represent the people. In the original scheme of things, Senators were more like ambassadors for the various state governments. They voted according to state interests. In fact, the only truly democratically representative institution under the original regime was the House of (aptly named) Representatives.
The Twelfth Amendment put vice presidents and presidents on the same ticket. Today they run as a lock-step team. Senators are popularly elected. Where is the violation of the “popular will” if the president is removed by an infinitely more small “d” democratic Senate and he is immediately replaced by a vice president who ran on exactly the same program as the ousted president? In fact in this case our vice president plans to run on the president’s program again in a couple of years!
But I digress. I haven’t made up my mind on whether a finding of fact is unconstitutional or not. Today’s Wall Street Journal makes a compelling case, as always. Nevertheless the Democrats have made up their minds, because it is in their selfish political interests to do so. They argue that if the president’s actions do not warrant removal, then it is up to the criminal courts to deal with him. They say, without using the phrase, that an FoF would be akin to double jeopardy. But this is the same party which has expanded civil rights laws to make double jeopardy commonplace. The Feds prosecute people all the time, even though the states have acquitted them. President Clinton himself has presided over dramatic expansions in civil rights laws — which he then violated — that make it easier to charge people with civil rights violations even if no breach of criminal law has occurred.
The Wall Street Journal today rightly points out to conservatives like me who are worried about bad precedents, that the bad-precedent ship has long since set sail. The president has obstructed justice, lied under oath, and demonized those who have tried to get to the bottom of those facts. We are in bad-precedent nirvana. The trick now is to figure out what’s the best thing to do in an already crappy situation. Clearly, the party of Clinton will be no help.
REMINDER: THERE’S STILL TIME TO VOTE!
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