by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Nothing worried the framers more when the Constitution was being cast into shape than impeachment. In fact, the issue was never quite settled, and that’s why we find ourselves where we find ourselves … as the impeachment trial against President Trump begins in the Senate.
What loomed over the framers was the example of England, where the House of Commons asserted itself by the Bill of Attainder, or the legislative condemnation, of Thomas Wentworth, 1st Earl of Strafford, King Charles I’s first minister. The House declared Wentworth politically obnoxious and, without any trial, cut off his head. A long period of civil war followed. In the end, this principle was established: Governments rule only so long as they command “the confidence of the House.” The term for this doctrine is parliamentary sovereignty.
The American Revolution was led by the colonial gentry against the sovereignty of the Westminster Parliament. The republic they founded was not to be parliamentary: Elaborate checks and balances were meant to keep Congress, as much as the president, from monopolizing power. The Constitution explicitly forbade attainders and established a finicky system, impeachment, for removing delinquent officers.
Two of the cleverest and gloomiest of the Federalist Papers try to moderate “the vehemence” with which impeachment “is assailed.” Alexander Hamilton was under no illusions. Impeachment will often be not legal but “political.” The decision will be regulated “more by the strength of parties than by innocence or guilt.” Welcome to 2020.