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

Published online by Cambridge University Press:  08 December 2008

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
Copyright
Copyright © University of Notre Dame 2008

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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): 87120CrossRefGoogle Scholar.

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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.”

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

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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.

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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.

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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.