The Framers Would Want You to Know: Alan Dershowitz Is Wrong About Impeachment, and So Is the President

Posted in: Constitutional Law

President Donald Trump selected Harvard Law professor emeritus Alan Dershowitz to join his impeachment defense team, and Dershowitz previewed his argument that an “abuse of power” by itself is not enough to justify impeachment of a president. This view is a betrayal of bedrock constitutional principles.

Dershowitz argues that “abuse of power” is not an impeachable offense, because it’s not a statutory crime and therefore not a “high crime or misdemeanor,” as the Constitution requires. The senators should reject this specious argument out of hand for many reasons but most importantly, because it subverts the spirit of the Constitution, as shown by the Framers’ debates at the Constitutional Convention. The Framers’ overriding conviction was that every person imbued with power would abuse it, and they set up the multiple checks and balances of the Constitution in the hope of stemming tyranny. To put it simply: humans are deeply fallible, and they will twist power to serve themselves.

The Framers’ Mindset

You cannot understand the Constitution and why it has worked so well for so long without knowing the mindset of the Framers. They entered Philadelphia to fix a broken system. The Articles of Confederation, or the committee of the states, was a failure. There was no union of purpose, but rather individual states operating out of self-interest. The states wouldn’t support a unified army no matter how much it was needed, and states were fine undercutting fellow states in foreign trade. The high aspirations of the Declaration of Independence had crashed into self-dealing human corruption, and if the Framers did not find a workable structure, there would be permanent disunion.

Frankly, the Framers walked into the old Pennsylvania State House (later named Independence Hall) in Philadelphia with a low opinion of human nature generally. They did not trust monarchies, legislators, governors, or even the people. There was plenty of evidence at that time in history to prove their distrust was legitimate. King George III was not forgotten; post Declaration of Independence state lawmakers were fond of treating laws as favors for individuals, not the larger good; governors were often powerless and ineffective; and the people were fighting amongst themselves with guns and/or words.

The Opinion of Human Nature at the Convention

The Framers’ opinion of human nature was shaped in part by a shared religious viewpoint running through the Convention. More Framers were educated by or affiliated with Presbyterian or Calvinist churches than any other religious theology. James Madison was educated at the College of New Jersey, which became Princeton University, by the Rev. John Witherspoon. In Madison’s own words, he received a “strong dose of Calvinism” from Witherspoon.

The core belief of Calvinism that became the secular backbone of our constitutional order is this: every human is tempted to abuse power, and most will. The Convention was awash in this sentiment. The Framers’ debates were focused on how to construct a governing machine that would deter expected abuses of power. They divided power into three branches—executive, legislative, and judicial—and established dual sovereigns—state and federal. They even divided the legislature into two houses and enumerated powers for each branch. They separated church from state by rejecting religious test oaths for public office and by refusing to establish a common religion. They set the branches on direct collision courses with each other to check them. They gave the President veto power, and Congress the power to impeach and remove the President and others.

The Framers expected a power war, but they hoped that the mechanism they constructed—the Constitution—could channel the collective power toward the public good. The Constitution was a leap of faith that sufficient numbers of good people could be found to subvert the inevitable temptations to tyranny. Even the Framers themselves weren’t sure it would work. Yet, this grand experiment has survived a civil war and three impeachment challenges. There is no guarantee it survives this crisis unless enough good senators step up.

Trump’s Bid for No Limits Would Have Been No Surprise to the Framers

To be sure, the Framers would not have been surprised that a President would argue he cannot be held accountable for abusing power. Of course a President would! Because they expected the one-person presidency to be rife with temptations to abuse power. They agonized over whether the executive branch would be a committee of persons or one. Why? Because they feared one would be tempted to become monarchical. But they also sought to construct a system that would accomplish what the Articles of Confederation had failed to: unified action from some corner of the government. They landed on a single-person presidency to provide the possibility of emergency capacity on behalf of the whole as needed, but they also placed the purse and lawmaking in a lumbering two-house Congress.

The Framers’ greatest fear for the executive was that one person would come to see themselves as a God-given monarch, and that they would become untethered from accountability to Congress, the states, the people, and the Constitution. They worried the president would be self-serving and even incapable of being reined in by the Constitution’s checks and balances. They were instinctually scared of one person taking the power vested in them by the Constitution and diverting that power to further their selfish ends rather than the common good. They expected those in power to sink to the lowest common denominator and literally hoped that the system would be robust enough to resist such human depravity.

The Framers’ belief in human fallibility also meant that they knew they were incapable of creating a perfect system. They expected the power they deployed to be reshaped by power-hungry individuals to serve their own ends in ways they could not even imagine. That is why the Constitution did not come with a guarantee but rather an amendment process and an impeachment process.

Dershowitz has become an enabler of the very type of presidency that the Framers would have found to be a betrayal of the system they put in place. Trump has repeatedly said that there are no limits on his power, and Dershowitz is simply chiming in. That attitude alone justifies impeachment from the Framers’ perspective.

The House, however, did not transmit a generalized charge of abuse of power; the House’s abuse-of-power charge is based on the facts of a President who diverted his constitutionally-derived power over foreign affairs to manipulate a foreign government to do his political dirty work, and to mislead the American people about his rival. That is an abuse of power writ large.

No one should be surprised how far Trump has pushed past the bounds of his legitimate powers. The Framers would have said, “I told you so” They would have continued: “We gave you the impeachment and removal power. Use it.”

Posted in: Constitutional Law

Tags: impeachment

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