Friday, January 21, 2011

The Two Americas

Walter Karp, a favorite here, has written of the "two Americas," the republic and the nation. Evidence of this duality is present, he argued, in the pledge of allegiance, where we pledge our allegiance to "one nation, under God" but also to the "flag and the republic for which it stands." For Karp, our political drama is, pretty much, a drama that revolves around these two possibilities, these two, very different aspirations, as it were. Karp thought that it was pretty amazing that the nation was not easily defeated by the republic, but here I think he could have been wrong or less than persuasive. There is something about "nationalism," just as there is something about war, that appeals to human beings, appeals to them deeply and strongly. And, of course, I make the comparison to war because, as Karp realized, war is the blood of any nation, the force that gives nationalism its appeal and meaning, to take some words from Chris Hedges and his book, "War Is A Force That Gives Us Meaning."

But that is a line of speculation for another day. Today it occurred to me that these two Americas are also embedded in our Constitution as well. Particularly, I was thinking about the presidency and, more particularly, about the impeachment process. My recent research has convinced of at least two things, First, there has been a political campaign, at least since the impeachment of Richard Nixon, to lay the impeachment provisions of the Constitution to rest, to kill them, to render them moot. As a result, Nixon argued before he resigned that a president could only be impeached and tried for crimes, that is, statutory crimes. Presidents could not be impeached and tried for what might be called "political offenses," such as violations of the principles of the Constitution as interpreted by the Congress. Moreover, in this light, Nixon's decision to resign is significant but more significant was the decision of the House leadership not to pursue impeachment after Nixon had resigned. By this logic, impeachment is about removal from office, not about accountability in office. For most practical purposes, this guts the impeachment process as it was conceived by the men who helped create it, men who were after accountability as well as removability.

And this is the second thing I have concluded about the impeachment process: That it was intended to be a tool by which government officials, and especially presidents, could be held accountable for their actions while in office. And this accountability need not eventuate in removal from office. In fact, the tool works best in ensuring accountability if it is clearly disengaged from removability. For example, Clinton's impeachment would have made much more sense had the Congress adopted what was clearly the intention of the Constitution, viz., that conviction for "impeachable offenses" need not result in removal from office. Clinton's behavior certainly did not warrant removal from office, at least not for most people, but it did warrant castigation or condemnation, even a public shaming as it were. Half joking, maybe a scarlet letter would have been appropriate!

So understood, the impeachment process is clear evidence that there are two presidencies or two presidential possibilities embedded in the Constitution. There is the presidency of, say, Richard Nixon, where the underlying principle is: "If the president does it, that means it is not illegal." This is the presidency that is above the law and even above legal standards, perhaps even those embedded in the Constitution itself. This is a reflection of Hamilton's "energetic executive," an executive capable of and encouraged to act with "secrecy and dispatch."

Then there is the presidency of impeachment provisions, an office that can and should be held accountable for its occupants actions, and not merely those actions that violate the law. This presidency would have to answer for its actions, such as Nixon's "secret bombing" of Cambodia [an article of impeachment that was not approved by the House against Nixon] and the Reagan administration's actions "supporting democracy" around the world, actions which were described by none other than Ollie North as much more controversial than the diversion of funds during the Iran-Contra scandal. This presidency is a reflection of Hamilton's argument in the Federalist that the impeachment process was created to be "a national inquest," that is, an inquest into what Hamilton labeled "political offenses," not criminal offenses.

Anyway, worth thinking about on this snowy Friday when classes have been cancelled and I am waiting to blow some snow!! Go Jets!!! Go Bears!!!

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