Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-27T22:50:28.798Z Has data issue: false hasContentIssue false
  • English
  • Français

Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment Power

Published online by Cambridge University Press:  08 December 2008

Jeremy D. Bailey
Get access Rights & Permissions [Opens in a new window]

Abstract

A problem within liberal constitutionalism is determining whether the majority actually consents to its government, and, in particular, to those extraordinary acts that take place in the silence of the law. This paper explores this problem in the U.S. context by presenting Thomas Jefferson's understanding of the impeachment power. Jefferson preferred a theory of impeachment that, like his theory of coordinate review, would allow each department to participate in the impeachment process, because he believed that executive participation would improve the law bringing its own character, or will, to it. As an alternative to the more common political understanding of impeachment, which leans toward legislative exclusivity, and the dominant legal understanding, which tends toward judicial finality, Jefferson's theory offers a way for the people to judge whether a particular act of lawlessness is in the public good.

Type
Research Article
Information
The Review of Politics , Volume 70 , Issue 4 , Fall 2008 , pp. 572 - 594
Copyright
Copyright © University of Notre Dame 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See for example the omission of consideration of Jefferson's understanding of impeachment in Matthews, Richard K., The Radical Politics of Thomas Jefferson: A Revisionist View (Lawrence, KS: University Press of Kansas, 1984)Google Scholar; Sheldon, Garret Ward, The Political Philosophy of Thomas Jefferson (Baltimore: The Johns Hopkins University Press, 1991)Google Scholar; Mayer, David N., The Constitutional Thought of Thomas Jefferson (Charlottesville, VA: University Press of Virginia, 1994)Google Scholar; Whittington, Keith E., Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999), 60Google Scholar; Ackerman, Bruce, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Cambridge, MA: Belknap Press of Harvard University Press, 2005)CrossRefGoogle Scholar; and Bailey, Jeremy D., Thomas Jefferson and Executive Power (Cambridge: Cambridge University Press, 2007)CrossRefGoogle Scholar. An exception is Jack Knight and Lee Epstein, who employ game theory to argue that Chase was acquitted because Jefferson actually favored judicial review. Knight, and Epstein, , “On the Struggle for Judicial Supremacy,” Law and Society Review 30 (1996): 87–120CrossRefGoogle Scholar.

2 Consider the different approaches suggested by McDowell, Gary L., Ackerman, Bruce, Beer, Samuel H., Holden, Matthew Jr., and Sunstein, Cass R., “Testimony before the House Judiciary Committee,” PS: Political Science and Politics 32:1 (1999): 24–38Google Scholar. See also “The Scope of the Power to Impeach,” Yale Law Journal 84: 6 (1975): 1316–37.

3 Jeffrey K. Tulis, “Impeachment in the Constitutional Order” (Paper delivered at the 2007 meeting of the Southern Political Science Association).

4 Klarman, Michael J., “Constitutional Fetishism and the Clinton Impeachment Debate,” Virginia Law Review, 85 (1999): 637– 45CrossRefGoogle Scholar.

5 Black, Charles, Impeachment: A Handbook (New Haven: Yale University Press, 1974), 29–32Google Scholar.

6 Federalist No. 65, in Hamilton, Alexander, Jay, John, and Madison, James, The Federalist: A Commentary on the Constitution of the United States, ed. Scigliano, Robert (New York: Modern Library, 2000), 417Google Scholar.

7 Berger, Raoul, Impeachment: The Constitutional Problems (Cambridge, MA: Harvard University Press, 1973), 53–102Google Scholar. Hoffer, Peter C. and Hull, N.E.H., “Power and Precedent in the Creation of an American Impeachment Tradition: The Eighteenth-Century Colonial Record,” The William and Mary Quarterly, 3rd Ser. 36 (1979): 51–77CrossRefGoogle Scholar; Gerhardt, Michael J., The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 2000), 18–19CrossRefGoogle Scholar; Annals of Congress, 1st Cong., 1st Sess., 517.

8 Story, Joseph, Commentaries on the Constitution of the United States (Boston: Hillard, Gray and Company, 1833)Google Scholar, paragraph 762.

9 The Federalist No. 48, Scigliano, 316.

10 For the third understanding, see Gerhardt, The Federal Impeachment Process, 103–112, and Adler, David Gray and Kassop, Nancy, “The Impeachment of Bill Clinton,” in The Presidency and the Law: The Clinton Legacy, ed. Adler, David Gray and Genovese, Michael A., 155–74 (Lawrence, KS: University Press of Kansas, 2002)Google Scholar.

11 Tulis, “Impeachment in the Constitutional Order,” 17–24.

12 See, for example, how electoral considerations influenced the vote on holding hearings on Bill Clinton in the House, Lanoue, David J. and Emmert, Craig F., “Voting in the Glare of the Spotlight: Representatives’ Votes on the Impeachment of President Clinton,” Polity 32 (1999): 253–69CrossRefGoogle Scholar. See also Pious, Richard M., “The Constitutional and Popular Law of Impeachment,” Presidential Studies Quarterly 28 (1998): 806–15Google Scholar.

13 Tulis, “Impeachment in the Constitutional Order,” 5–9.

14 Annals of Congress, 8th Cong., 2nd Sess., 111–116 and 358; and Whittington, Constitutional Construction, 30.

15 Hoffer, Peter Charles and Hull, N.E.H., Impeachment in America, 1635–1805 (New Haven: Yale University Press, 1984), 240–251Google Scholar. This approach is similar to Raol Berger's conclusion that Chase deserved to be impeached because his misuse of power was illegal. See Berger, Impeachment, 224–51.

16 Annals of Congress, 8th Cong., 2nd Sess., 164.

17 Annals of Congress, 8th Cong., 2nd Sess., 332.

18 John Quincy Adams, Memoirs, November 29 and December 21, 1804, as cited in Johnstone, Robert M. Jr., Jefferson and the Presidency: Leadership in the Young Republic (Ithaca: Cornell University Press, 1978), 185Google Scholar.

19 The Republican defectors included Stephen Bradley (VT), Samuel Mitchill (NY), Israel Smith (VT), John Smith (OH), John Smith (NY), and John Gaillard (SC).

20 For this understanding, it is significant that during the Chase trial John Marshall confided that in order to prevent Congress from having the power to remove judges for their opinions he would have been willing to give up the of power of judicial review. See Adams, Henry, History of the United States of America during the Administrations of Thomas Jefferson (New York: Library of America, 1986), 460Google Scholar; Turner, Lynn W., “The Impeachment of John Pickering,” American Historical Review 54 (1949): 485–507CrossRefGoogle Scholar; McCloskey, Robert G., The American Supreme Court, Fourth Edition, revised by Sanford Levinson (Chicago: University of Chicago Press, 2005), 29–30Google Scholar; Rehnquist, William H., Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: Quill, William Morrow, 1992), 108–110Google Scholar.

21 Ellis, Richard E., The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971)Google Scholar. With the exception of one, each defector was, as Henry Adams put it, a “northern democrat” (Adams, History, 463).

22 Whittington, Constitutional Construction, 20–71. The fifth and sixth articles, respectively, received zero and four votes, confirming that Senate Republicans clearly rejected Randolph's attempt to make an impeachable offense of Chase's procedural errors regarding the application of Virginia law. But a majority of Republicans also believed that Chase's political activities from the bench constituted an impeachable abuse of office. Thus, it is significant for Whittington that the eighth article, which was based on Chase's infamous instructions to a Baltimore jury and far from the position that impeachable offenses must be indictable, gathered the most votes in the Senate: “With his Baltimore charge, Chase had entered the political arena, and the votes against him showed that to the extent that judges entered that domain, they were vulnerable.”

23 Ackerman, Failure of the Founding Fathers, 199–223.

24 John Randolph made this point, Annals of Congress, 8th Cong., 2nd Sess., 643.

25 On removal of executive officials, see Prince, Carl E., “The Passing of the Aristocracy: Jefferson's Removal of the Federalists, 1801–1805,” Journal of American History 57 (1970): 563–75CrossRefGoogle Scholar. With regard to the repeal of the Judiciary Act, Jefferson provided Congress with numbers demonstrating that the new judgeships were unnecessary and costly, and the repeal was largely known as the “president's measure.” Ellis, Jeffersonian Crisis, 44–45. Prince concludes that these removals, when added to the removal of Pickering and two other judges who never received their commissions on technicalities, resulted in the removal of eighteen of thirty Federalist judges by 1803 (Prince, 568).

26 Turner, “Impeachment of John Pickering,” 491, 506.

27 Malone, Dumas, Jefferson the President: First Term, 1801–1805 (Boston: Little, Brown, 1970), 460–68Google Scholar.

28 Wills, Garry, Negro President: Jefferson and the Slave Power (Boston: Houghton Mifflin, 2003), 144Google Scholar.

29 “Samuel Chase, March 1805, Impeachment,” Thomas Jefferson Papers, Series One, General Correspondence, 1651–1827, Library of Congress.

30 Thomas Jefferson to Thomas Ritchie, 25 December 1820, in The Writings of Thomas Jefferson, ed. Paul Leicester Ford, 10 vols. (New York: 1892–99), 10:170–71; Thomas Jefferson to James Pleasants, 26 December 1821, in Ford, 10: 198–99; Thomas Jefferson to M. Coray, 31 October 1823, in The Writings of Thomas Jefferson, ed. Henry A. Washington, 9 vols. (Washington, DC: 1853–4), 7:321–22; and Thomas Jefferson to Edward Livingston, 25 March 1825, in Washington, 7:403–404.

31 See, for example, Jefferson to John Taylor, 28 May 1816, and Jefferson to Samuel Kercheval, 12 July 1816, in Thomas Jefferson: Writings, ed. Merril D. Peterson (New York: Library of America, 1984) (hereafter WTJ), 1391–1403.

32 Thomas Jefferson to James Madison, 15 February 1798, in Ford, 7:202–203.

33 Thomas Jefferson to Henry Tazewell, 27 January 1798, Papers of Thomas Jefferson, ed. Julian Boyd, et al., 32 vols. (Princeton, NJ: Princeton University Press, 1950–2005) (hereafter PTJ), 30: 58–9.

34 Thomas Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of the United States, Republished from the 1801 Edition in Cooperation with the Library of Congress, Applewood Books, 136–37.

35 Malone, Jefferson the President, 479; Rehnquist, Grand Inquests, 113; McDonald, Forrest, The Presidency of Thomas Jefferson (Lawrence, KS: University Press of Kansas, 1986), 92–93Google Scholar.

36 Ellis, Jeffersonian Crisis, 35, 88–94.

37 Knight and Epstein, “On the Struggle for Judicial Supremacy,” 106–111.

38 Jefferson to Edmund Pendleton, 25 May 1784, PTJ, 7: 292–93; Jefferson to James Madison, 29 June 1792, PTJ, 24:134; Jefferson to John Adams, 28 February 1796, PTJ: 28:618; Jefferson to Demeunier, 1796, PTJ, 10:3–64; Jefferson to A.L.C. Destutt de Tracy, 26 January 1811, WTJ, 1241–47; Jefferson to Alexander von Humboldt, 14 April 1811, WTJ, 1247–48; and Jefferson to Samuel Kercheval, 12 July 1816, WTJ, 1395–1403.

39 Jefferson to W.H. Torrance, June 11, 1815, in Ford, 9:516–19. See Warren, Charles, The Supreme Court in United States History (Boston: Little Brown, 1922), 267Google Scholar; Wolfe, Christopher, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986), 94Google Scholar; Mayer, Constitutional Thought of Thomas Jefferson, 271–72.

40 Jefferson to Judge Spencer Roane, September 6, 1819, WTJ, 1425–28.

41 See Jefferson's draft of his first annual message to Congress, “First Annual Message,” 8 December 1801, Library of Congress, Thomas Jefferson Papers Series 1, General Correspondence, 1651–1827.

42 Hamburger, Philip A., “Revolution and Judicial Review: Chief Justice Holt's Opinion in City of London v. Wood,” Columbia Law Review 94: 7 (1994): 2091–2153CrossRefGoogle Scholar.

43 On Smith, see Rogers, George C., Evolution of a Federalist: William Loughton Smith of Charleston, 1758–1812 (Columbia, SC: University of South Carolina Press, 1962), 169–71Google Scholar. On Duane, see Phillips, Kim Tousley, William Duane, Radical Journalist in the Age of Jefferson (New York: Garland, 1989), 124–30Google Scholar, and William Duane to Jefferson, 10 June 1801, Library of Congress, Thomas Jefferson Papers Series 1, General Correspondence, 1651–1827. It is also worth noting that during the contested election of 1800, Duane had been instrumental in publicizing Federalist plans to make someone other than Jefferson president. Knudson, Jerry W., Jefferson and the Press: Crucible of Liberty (Columbia, SC: University of South Carolina Press, 2006), 16–18Google Scholar.

44 Jefferson to William H. Cabell, 11 August 1807, The Thomas Jefferson Papers, Series I, General Correspondence, 1651–1827, Library of Congress.

45 Mayer, Constitutional Thought, 263.

46 An extract of a 1776 letter from Jefferson to Wythe calls for judicial independence and life terms, but Boyd says the letter is suspicious in that it first appeared in Federalist newspapers in 1803. PTJ, 1:410.

47 Jefferson, Proposed Constitution for Virginia, PTJ, 1:361–62; 6:301.

48 Jefferson, PTJ, 6:304.

49 Madison, James, “Observations on Jefferson's Draft of a Constitution for Virginia,” 15 October 1788, PTJ, 6:313–14Google Scholar.

50 Plumer, William, William Plumer's Memorandum of the United States Senate, 1803–1807, ed. Brown, Everett Somerville (New York: Macmillan, 1923), 102Google Scholar.

51 Jefferson to William Branch Giles, 20 April 1807, Ford, 9: 46.

52 Jefferson to Henry Tazewell, 27 January 1798, PTJ, 30:58–59.

53 Scigliano, Robert, “The Presidency and the Judiciary,” in The Presidency in the Political Order, 3rd ed., ed. Nelson, Michael, (Washington, DC: CQ Press, 1990)Google Scholar.

54 Jefferson to John Colvin, September 20, 1810, WTJ, 1231–4; Jefferson to William H. Cabell, August 11, 1807, and “Message to Congress,” January 13, 1806 in Thomas Jefferson Papers Series 1. 1651–1827.

55 Bailey, Thomas Jefferson and Executive Power, 15–24, 42–64, 242–58.

56 Locke, John, Two Treatises of Government, student edition, ed. Laslett, Peter (New York: Cambridge University Press, 1988) 372–9CrossRefGoogle Scholar; Kleinerman, Benjamin A., “Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke's Second Treatise,” American Political Science Review 101: 2 (2007): 217CrossRefGoogle Scholar.

57 Jefferson to Colvin, WTJ, 1231.

58 Whittington, Constitutional Construction, 54–57.

59 Annals of Congress, 8th Cong., 2nd Sess., 452–53, 469–70, 501.

60 The quote about simple men is from Randolph, Annals of Congress, 8th Cong., 2nd Sess., 659.

61 Annals of Congress, 8th Cong., 2nd Sess., 567; and Whittington, Constitutional Construction, 54.

62 Annals of Congress, 8th Cong., 2nd Sess., 567.

63 Annals of Congress, 8th Cong., 2nd Sess., 587 and 655. Curiously, Randolph supported this argument with the example of Congress's powers under the “necessary and proper” clause.

64 Posner, Richard A., An Affair of State: The Investigation, Impeachment and Trial of President Clinton (Cambridge, MA: Harvard University Press, 1999)CrossRefGoogle Scholar; Ackerman, Bruce A., The Case Against Lameduck Impeachment (New York: Seven Stories Press, 1999)Google Scholar. But see Whittington, Keith, “Yet Another Constitutional Crisis?” William and Mary Law Review, 43 (2002): 2093Google Scholar.