We still imagine ourselves a nation of laws, not of men. This is not merely an article of faith but a bedrock principle of the United States Constitution. Our founding compact provides a remedy against rulers supplanting the rule of law, and Andrew C. McCarthy makes a compelling case for using it. The authors of the Constitution saw practical reasons to place awesome powers in a single chief executive, who could act quickly and decisively in times of peril. Yet they well understood that unchecked power in one person's ...
We still imagine ourselves a nation of laws, not of men. This is not merely an article of faith but a bedrock principle of the United States Constitution. Our founding compact provides a remedy against rulers supplanting the rule of law, and Andrew C. McCarthy makes a compelling case for using it. The authors of the Constitution saw practical reasons to place awesome powers in a single chief executive, who could act quickly and decisively in times of peril. Yet they well understood that unchecked power in one person's hands posed a serious threat to liberty, the defining American imperative. Much of the debate at the Philadelphia convention therefore centered on how to stop a rogue executive who became a law unto himself. The Framers vested Congress with two checks on presidential excess: the power of the purse and the power of impeachment. They are potent remedies, and there are no others. It is a straightforward matter to establish that President Obama has committed "high crimes and misdemeanors," a term signifying maladministration and abuses of power by holders of high public trust. But making the legal case is insufficient for successful impeachment, leading to removal from office. Impeachment is a political matter and hinges on public opinion. In Faithless Execution , McCarthy weighs the political dynamics as he builds a case, assembling a litany of abuses that add up to one overarching offense: the president's willful violation of his solemn oath to execute the laws faithfully. The "fundamental transformation" he promised involves concentrating power into his own hands by flouting law--statutes, judicial rulings, the Constitution itself--and essentially daring the other branches of government to stop him. McCarthy contends that our elected representative are duty-bound to take up the dare. What are "High Crimes and Misdemeanors"? Impeachment is rare in American history--and for good reason. As the ultimate remedy against abuse of executive power, it is politically convulsive. And yet, as the Framers understood, it is a necessary protection if the rule of law is to be maintained. But what are impeachable offenses? There is widespread confusion among the American people about the answer to this question. Article II of the Constitution lists treason and bribery, along with "other high crimes and misdemeanors as the standard for impeachment. Despite what "crimes" and "misdemeanors" connote, the concept has precious little to do with violations of a penal code. Rather, it is about betrayal of the political trust reposed in the president to execute the laws faithfully and "preserve, protect and defend" our constitutional system, as his oath of office requires. At the constitutional convention in 1787, the delegates concurred that the "high crimes and misdemeanors" standard captured the many "great and dangerous offenses" involving malfeasance, incompetence, and severe derelictions of duty that could undermine the constitutional order. The Framers were clear that "high crimes and misdemeanors" involved misconduct that did not necessarily break penal laws; it might not even be considered criminal if committed by a civilian. It would apply strictly to "the misconduct of public men ... or the abuse or violation of public trust," as Alexander Hamilton put it. "High crimes and misdemeanors" are of a purely political nature as they "relate to injuries done immediately to the society itself." To be clear, "high crimes and misdemeanors" is not a standard conceived for normal law enforcement. It applies instead to oath, honor, and trust--notions that are more demanding of public officials than the black and white prohibitions of criminal law. While the standard is high-minded it is not an abstraction. The Framers were very clear: betrayals of the constitutional order, dishonesty in the executive's dealing with Congress, and concealment of dealings with foreign p
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