Back on the 4th, I (and a few other diarists like Turkana) were remembering the words of American giants like Barbara Jordan -- patriots who knew how to make the case to a nervous public that impeachment is sometimes necessary.
"My faith in the Constitution is whole, it is complete, it is total."
That is, and must be, the mantra going forward. Because if that is your mantra, the conclusion is inescapable: impeachment is necessary to prevent the fabric of our Republic from being further unraveled by these venal criminals.
The modes of analysis needed to convince a skeptical public of the necessity of impeachment are those that can be used in judicial review, plus one more mode that is not appropriate for such review. [More after the jump ...]
On the 4th, I wrote a first mostly coherent, yet rambling, diary on the need for impeachment. The diary is at http://www.dailykos.com/... if anyone's interested to see where this all started. The heart of the idea of how to prove the necessity of impeachment is talked about in there, but it needs to be refined, sculpted, and made more powerful.
I had the privilege to unofficially audit an Intro to Constitutional Law class at the Univ. of Texas School of Law while I was at UT for grad school. I took the class because of the unique background and scholastic achievements of the professor, Philip Bobbitt, who has held a dizzying array of academic and government legal titles -- including Legal Counsel to the Senate Iran/Contra Committee -- and has written some amazing books, including the Shield of Achilles, which is a treatise on the intersection of law, history, and strategy and the evolution of the state.
In any event, it says something about the man and the power of the ideas he taught that I remember more from that class than I do from any class I took in my actual doctoral field of study (or maybe it says something about me, or both). Besides making us all memorize the intro to the Declaration of Independence ("We hold these truths ..."), the 1st section of the 14th Amendment ("No state shall make or enforce ..."), and the Great Test explicated by John Marshall in the landmark case McCulloch v. Maryland ("Let the ends be legitimate ..."), he taught us how to analyze constitutional arguments and theories from six modal categories:
- Textual
- Structural
- Historical
- Doctrinal
- Prudential
- Ethical
When you re-read Barbara Jordan's seminal modern discourse on why impeachment was necessary, you can see these modes of argument intertwined in a tight legal masterpiece (what a shame her health prevented her from serving on the Supreme Court).
These are modes of constitutional analysis and inquiry, not literary or scholarly inquiry, per se. A brief definition of each:
- Textual: What do the words of the document say and mean?
- Structural: How do all the sections of the Constitution that pertain to a particular issue, including powers and prohibitions in the amendments, interact and intertwine to inform of allowed or prohibited actions?
- Historical: What did the ratifiers say/think/mean about these issues when the Constitution, or the Amendment in question, was adopted?
- Doctrinal: What have the courts ruled about these issues in the past? [Precedential would be another way of describing this mode.]
- Prudential: [Note that this theory is the most removed from the Constitution, itself:] What is necessary for the government to function, whether or not the Constitution strictly allows such actions?
- Ethical (not to be confused with Moral): What derives from the spirit of the document, especially the 9th and 14th Amendments, the Preamble to the Constitution, and the Declaration on Independence? What is the ethos of the document trying to inform our politics of?
I think it is necessary to explain, as succinctly as possible, why impeachment is necessary from all six vantagepoints here, plus one more that I alluded to, but is generally frowned upon in judicial review -- the Moral component. This last one obviously relates to the War.
Now, a great legal argument will skillfully marshall all six modes of argument into a powerful structure that inexorably leads to a conclusion that leaves no doubt as to the question at hand.
From an impeachment point of view, the modal analyses are altered slightly, but are nonetheless similar:
- Textual: What does the Constitution say about Impeachments: what are the situations in which impeachment is called for, who impeaches, who tries, etc.?
- Structural: How does impeaching the President affect his/her powers, what are the mechanics of impeachment, etc.?
Obviously, text and structure go hand-in-hand, especially in such a case where the Constitution is pretty succinct. Note that true, strict constructionism is informed from text, history, and structure -- even though it is a false brand for reactionary Republican judges today, that is the heart of a true conservative jurisprudence.
- Historical: What did the Framers, the Ratifiers, and the early members of the Republic say about impeachment?
Barbara Jordan marshaled the two most important Federalist Papers, Nos. 65 and 66, on the subject during her discourse. Nos. 74 and 79 are also pertinent to the discussion. The quotes from Madison and the various state ratification conventions were also used.
- Doctrinal: This is the most inapt comparison to judicial review. In this case, the only doctrine here are the impeachments of Johnson (which has almost no precedential value in this case, because the fact patterns are so different), Nixon, and Clinton. I think it best to stay away from the Clinton impeachment altogether and focus solely on the Nixon analogy.
- Prudential: Really, why is impeachment necessary? In making our case, the prudential/ethical/moral arguments are what will sway and win the day, or not. Why must we impeach? Because they will continue breaking the law if we don't.
- Ethical: Why must we impeach? Because the Constitution is being weakened, and thus so are the protections of our liberties and security. Because, as a federal Republic that is supposed to be one of limited powers, the President is staking his claim to monarchical ideas of executive authority, which are wholly inimical with the idea of America.
- Moral: Why must we impeach? So that no President ever thinks about abusing the people and the Republic to start a war based on lies and fantasies and to pursue partisan political gains.
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Sorry this is so long, but this is the case that needs to be made. Moreover, it needs to be made with respect to the facts of the Libby case (just as Barbara Jordan integrated the facts of Nixon's wrongdoing's in her speech) and how a gigantic coverup was perpetrated on the American people to get us into a war based on lies, and then to make sure the true story never saw the light of day. That is the heart of a political crime, and why impeachment was included in the Constitution.
My plan is to address these arguments in groups over the next few days, but I'd love any feedback and help, especially in the Historical area (i.e., a semi-Wiki effort to mine all the gold that might yet be around from the Constitutional Convention through the Federalist through the State Ratification Conventions, etc).
I think it important that whatever group product gets produced here, it must strive to address all the legitimate skepticisms and criticisms of members of this community about the idea of impeachment -- if we can't convince some of our own, probably the arguments in favor aren't good enough.
My goal in all this is to help produce a comprehensive argument on why impeachment is necessary at this time. I'll followup in the next few days with a diary addressing points 1 and 2, and see what input people would like to make.
Feel free to email me at dkosron@gmail.com.
For those that made it this far, thanks for reading. I'd greatly appreciate any input and hearing from those interested in being involved in this project going forward. Once the case has been assembled, the next stage will need lots of hands on deck if we hope to cause some change ...