IF YOU are one of the few individuals actively paying attention to the Senate impeachment trial of President Trump, you may be forgiven for being a bit confused about the constitutional underpinnings of the process.
That’s because while Democrats bringing the case gravely pronounce they are doing their constitutional duty to rein in a rogue president, White House defenders and Republican members of Congress just as vehemently argue they are on the right side of the constitution opposing House Democrats engaged in an attempted coup against a duly elected chief executive acting within his constitutional authority.
Can they all be right?
Indicators show most Americans are tuned out. Like the politicians in Washington, most of the people already have made up their minds. They are Red Team or Blue Team. End of story.
AMID the constitutional confusion—and having heard quite enough from the Always Red and Always Blue sides—I decided to do something I hadn’t done in more than 40 years. I waded into the Federalist Papers again.
For those who slept through civics class—or went to school when civics classes mostly faded away—the Federalist Papers are a series of articles, written in the late 1780s, promoting ratification of the United States Constitution. The document now revered almost as a secular Bible was far from a sure thing in the wake of the weak and failed Articles of Confederation, the system first devised to govern the new nation. The most brilliant men of a brilliant generation of Americans met in Philadelphia and produced the document that has cemented the country together for more than 230 years. But the success of the project depended on ratification by the states.
The Federalist Papers—85 separate essays, dealing with specific points of the proposed constitution—built the case. In these essays modern Americans can get a sense of what the Framers actually intended, and it often doesn’t match the partisan-tinged rhetoric of today’s political class. That’s because, under the pseudonym of “Publius,” the authors of the Federalist Papers had intimate knowledge on the subject of the constitution because they were three of the most famous of the Founding Fathers: Alexander Hamilton, President Washington’s treasury secretary and the architect of the American economy; James Madison, the fourth president of the United States; and John Jay, the first chief justice of the Supreme Court.
AMONG the first things one notices in the Federalist Papers is a strong concern over the damage likely to be caused by “factions,” or what people today would call political parties. Good government could be assured through representatives who acted as statesmen, but could be endangered by representatives consumed with partisan division.
The authors demonstrated a full understanding of human nature—basically, that humans can’t be trusted to do the right thing when power is at stake.
So the Framers built what they hoped would be an antidote to excessive factionalism and the baser instincts of human nature. The constitution is filled with checks and balances intended to thwart factionalism’s thirst for seizing absolute power. The upper and lower houses of Congress. The executive. The highest court in the land. All representing co-equal branches of government, capable at crucial times of filling the Framers’ purpose of limiting ambitious men—and, yes, in those days it was all about men—in relentless pursuit of unchallenged authority.
FAST forward to today. We have two political parties that couldn’t agree the sun rises in the east. We have a population that has sworn fealty to Team Red or Team Blue. It might better be called Team Black and Team White because neither will acknowledge room for a Team Gray. Both sides are convinced they are 100% right 100% of the time, and the other team is 100% wrong 100% of the time.
We have a Congress that has neutered itself. Partisan divisions have changed the people’s institution from a place where the best interests of the country are debated and decided, into a boiling cauldron of ambition in which each side only wants the power to impose its will. Statesmanship is out. Partisanship is in. Nothing gets done, because that would require searching for common ground—heresy for Team Red and Team Blue.
The vacuum created by a paralyzed Congress has been filled by the continued swelling of an imperial presidency—something the Framers did not intend, and indeed feared. The idea, expressed by President Trump, that “Article II (the section creating the executive branch) allows me to do whatever I want,” would have sent the Framers into spasms of apoplexy. Perhaps the primary reason behind all constitutional checks and balances—in a fledgling country that had just fought a revolution to break free of monarchical tyranny—was to guard against the authoritarian impulses of any person. In modern America, though, more and more power has been willfully abdicated from the people’s representatives in Congress to the executive.
Don’t take for granted the Supreme Court will uphold constitutional norms, either. Both parties salivate over the prospect of politicizing the court by stacking it with justices leaning Red or Blue.
IN THE Federalist Papers one clearly hears the belief in the existence of a final check and ultimate balancing lever. The people.
News item: “Hamburg, Pa. —For all the gravity of a presidential impeachment trial, Americans don’t seem to be giving it much weight.
“As House impeachment managers make their case to remove President Donald Trump from office, voters in several states said in interviews with The Associated Press that they’re only casually following the Senate trial, or avoiding it altogether—too busy to pay close attention, bored of the legal arguments, convinced the outcome is preordained or just plain tired of the whole partisan saga.
“Web traffic and TV ratings tell a similar story, with public interest seeming to flag after the House voted last month to impeach a president for only the third time in U.S. history.”
For those of a certain age, contrast that with the national atmosphere surrounding the Nixon hearings in the 1970s. Americans of all ages were locked into the process. Facts mattered. Minds were changed as the case proceeded, on both sides of the partisan divide. The Supreme Court refereed disputes and defended the people’s right to know.
Citizens played their proper role by paying close attention, a fact not lost on those who held their positions at the pleasure of voters. In the end that’s what forced Nixon to comply with subpoenas and court orders and, ultimately, led to his resignation.
A LOT has changed since then. The presidency had been grossly inflated before Trump, who certainly has not ceded back any authority. Presidents treat Congress like a nuisance, and they’re not entirely wrong because Congress is paralyzed by partisanship. The third branch, the courts, seems incapable of dealing with anything in a timely manner and so is almost useless in fast-moving situations.
The people? Lulled to sleep, bored with it all, sold on pre-conceived notions, a condition that surely would break the Framers’ hearts.
In the formality of the language used by Hamilton, Madison and Jay in the Federalist Papers, those who are willing can hear the music of the America the Framers intended under the constitution.
This is not it.
God help the United States of America, and all of us.
William Barth is the Editor of the Beloit Daily News.