Repudiation, Not Impeachment
It is a question I am faced with at every public event I participate in: What are my views on the impeachment of President Bush and others in his administration? Generally, the question is preceded by an emotional statement listing the “crimes” which Mr. Bush is accused of committing, and the questioner has already found him guilty. Whether it is the war in Iraq, conspiracy theories about 9/11, Hurricane Katrina, or any given variation of the theme of constitutional abuse of power, the one thing all of the questioners have in common (besides the desirable outcome) is their singular conviction that the president is guilty.
I have considerable sympathy for this stance. I myself have stated on more than one occasion that I believe President Bush has lied to Congress and the American people about the reasons for going to war with Iraq (i.e., the whole WMD/al-Qaida intelligence fabrication/misrepresentation fiasco). I also believe that the president’s sanctioning of warrantless wiretapping, along with a litany of other abuses of power stemming from the Patriot Act approved by Congress after Sept. 11, 2001, likewise constitutes grounds for impeachment. Several Democrats in Congress are actually discussing the possibility of impeachment of President Bush, and the irrepressible Congressman Dennis Kucinich has actually introduced articles of impeachment for Vice President Dick Cheney.
Even some Republicans are getting on board the impeachment bandwagon, although with caveats. “Any president who says ‘I don’t care’ or ‘I will not respond to what the people of this country are saying about Iraq or anything else’ or ‘I don’t care what the Congress does, I am going to proceed’ — if a president really believes that, then there are … ways to deal with that,” Sen. Chuck Hagel, a Republican from Nebraska, said of President Bush in obvious reference to impeachment.
Hagel is correct: Impeachment is the constitutional remedy for a unilateral president whose governance is an insult to traditional American democratic norms and values. However, impeachment alone is simply a measure which addresses the symptoms of a larger malaise that has stricken America. The arrogance associated with the concept of the unitary executive is prevalent throughout mainstream American political life. The passivity of the legislative branch is one byproduct of the dominance of the unitary executive. It is also an indicator that the will of the people, as expressed through their election of the people’s representatives to the Congress of the United States, no longer has the weight and bearing long associated with the American democratic experience.
Any effort to impeach Bush and any of his administration found to be engaged in activities classifiable as “high crimes and misdemeanors” would fail to rein in the unitary executive core of any successor. One only has to listen to the rhetoric of the Democratic candidates for president to understand that this trend is as deeply rooted among them as it is with President Bush. Americans today look for leaders without recognizing the absolute necessity of electing team players. The Founding Fathers deliberately designed the executive branch to be strong and independent, but also made sure, through an elaborate system of checks and balances, that it operated merely as one of three separate but equal branches of government.
The “in your face” efforts of the Bush administration to minimize the role of Congress and to achieve political control of the judiciary are simply more public manifestations of trends that occurred in a more quiet fashion in past administrations, Republican and Democratic alike. When America elects a leader who states clearly that he or she will work with their equal partners in governance, the Congress, for the good of the country, and who will acknowledge the supremacy of law set forth in the form of binding legislation passed by the will of Congress, void of any limiting or contradicting “presidential signing statement,” then we will finally have a leader who is truly worthy of the title “President of the United States of America.”
But this will not happen of its own volition. The impeachment of President Bush would not in and of itself terminate executive unilateralism. It would only limit its implementation on the most visible periphery, driving its destructive designs back into the shadows of government, away from the public eye, and as such, public accountability. Impeach President Bush, yes, if in fact he can be charged with the commission of acts which meet the constitutional standard for impeachment (and I believe he could, if Congress only had the will to do its job). But to truly heal America, we must repudiate everything President Bush stands for, in terms of not only public and foreign policy, but also in terms of his style of governance, since the former is derived from the latter.
Repudiation is a strong term, defined as “rejecting as having no authority or binding force,” to “cast off or disown,” or to “reject with disapproval or condemnation.” In my opinion, the complete repudiation of the presidency of George W. Bush is the only recourse we have collectively as a people to not only seek redress for the wrongs committed by the Bush administration, but also to purge society of this cancer that threatens to consume and destroy us as a whole, and which would continue to manifest itself in our system of governance even after any impeachment proceedings.
Like any cancerous growth, the Bush administration has attached its malignancy to the American nation in a cruel fashion, its poisonous tentacles stretching deep into our national fabric in a manner that makes difficult the task of culling out the healthy from the diseased. But we cannot truly repudiate something without its complete and utter elimination from our midst. As such, there must be a litmus test to help us differentiate the good from the bad, that which must be restored from that which must be eliminated. For me, there is only one true test: that of constitutionality. There will be those who argue, and have argued, that the time is well past for an oppressed people (and one would be a fool not to comprehend that under the Bush administration, the American people have in fact been oppressed) to rely on the niceties of legal argument, especially when the system of law we seek to use in our defense has been so thoroughly corrupted by those who seek to impose tyranny.
I was recently in Ireland, where I delivered a presentation on the current situation in the Middle East. In criticizing the Bush administration’s policies, I launched into a staunch defense of the Constitution of the United States and decried what I believed to be the inadequacies of Congress and the American people in defending their constitutional inheritance. Afterward, I was confronted by an Irishman who challenged me on the validity of our Constitution. As he pointed out, none other than President Thomas Jefferson himself, the author of the Declaration of Independence and a proponent of constitutional law, is famously quoted as saying, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.” If, as I maintained, the Bush administration was deviating so far off course from the ideals and values set forth in the Constitution, was it not time for a new American Revolution to “refresh” liberty with “the blood of patriots and tyrants?”
There can be no doubt that Jefferson was a promoter of resistance to the forces of tyranny. It was he who, after all, who penned the famous words proclaiming the need for American independence from the tyranny of British rule: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness … when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
If faced with a situation today in which the American people felt that our current form of government sought to imprison them “under absolute Despotism,” would we not be obligated to apply “natural manure” in an effort to refresh the “tree of liberty?”
Short of a complete and total abdication on the part of the Congress, the collapse of the judiciary system, and a shocking decision by those men and women who wear the uniform of the armed forces of the United States to lend force of arms to the will of a dictatorial president, I cannot ever envision a time in which conditions in these United States could deteriorate to the point that a violent revolution “of the people and by the people” would be required to restore constitutional legitimacy and authority. Having said that, I remind the reader that with so few Americans professing any working understanding of the Constitution, it is difficult to speak of people defending that which they remain ignorant of. While I reject violence as a means of redressing social wrongs, especially when applied to issues of governance, and instead rely on the rule of law as manifested by the Constitution and those legitimate bodies empowered by the Constitution to remedy every situation, I cannot help but fear the moment when the foundation of legitimacy which defines who we are and what we are as a nation fades away into irrelevance amidst a sea of complacency and ignorance. There is no greater breeding ground for the forces of tyranny than the surrender of civic responsibility on the part of those entrusted with the defense of liberty. And in this I do not mean the Congress of the United States, but rather the people of the United States, the duly elected representatives of whom constitute the Congress.
I fear not the bloody rebellion of an outraged citizenry, but rather the passive submission of a shameful mass which betrays the cause of liberty and freedom through the abandonment of the Constitution, and the obligations of citizenship derived thereof, in favor of the narcotic of consumerism. Such a mass, foreswearing blind obedience to those who profess how to best construct a cocoon that immerses the occupant in transitory comfort, is the most pressing problem facing America today. In a nation whose defining document begins, “We the People,” I find that it is we the people who constitute the greatest threat to the future of America. It is not through the force of our actions, but rather the vacuum created by our inaction and apathy, a vacuum all too readily filled by those who would have us exchange our hard-fought freedoms for a gilded cage of market-driven consumerism.
This is the main reason why I am not a proponent of the “impeach now” mentality so prevalent in political circles that oppose George W. Bush. The expediency of impeachment simply replaces one source of tyranny (President Bush) with another (whoever replaces him). It is not the failures of an individual that have gotten us to where we are today, but rather the failure of the collective. So before we speak of impeachment and the notion of executive accountability, I would like to address the issue of repudiation and the necessity of civic responsibility.
Whatever field I endeavored to participate in — whether as a football player in college, an officer in the Marines or a firefighter today — whenever the going got tough, it was always pounded into my head to fall back on “the basics.” That is to say, a foundation of norms from which everything else was derived. By adhering to these “basics,” I and others were able to navigate whatever treacherous course we were attempting, more often than not with success. As such, in formulating a coherent response to the challenge put to me by the Irishman concerning the need to “fertilize the tree of liberty,” I find myself falling back on the “basics” of citizenship, to seek out the fundamentals of individual responsibility in the American democratic experiment. And there is no better source for these fundamentals than the most strident defender of the individual American — Thomas Jefferson himself.
Jefferson was in France during the drafting of the Constitution, and did not play a direct role in negotiating its content. But such was his heft as a founder of America that his opinion was sought by many of those who were so engaged. One of these critical players, James Madison (who later became the fourth president of the United States, following Jefferson), wrote a letter to Jefferson shortly after the Constitutional Convention finished its work in September 1787, and prior to ratification, interpreting critical aspects of the Constitution. I view Madison’s words to be worthy of consideration when addressing the issue of citizenship and responsibility.
“In the American Constitution,” he wrote on Oct. 24, 1787, “the general authority will be derived entirely from the subordinate authorities. The Senate will represent the States in their political capacity; the other House will represent the people of the States in their individual capacity. The former will be accountable to their constituents at moderate, the latter at short periods. The President also derives his appointment from the States, and is periodically accountable to them. This dependence of the General on the local authorities seems effectually to guard the latter against any dangerous encroachments of the former; whilst the latter, within their respective limits, will be continually sensible of the abridgement of their power, and be stimulated by ambition to resume the surrendered portion of it.”
In short, Madison underscored the fundamental role of the people in the chain of accountability, and the necessity of their informed involvement if the system of American constitutional governance was to work. A breakdown on the part of the “general authority” would lead to chaos and anarchy. Likewise, the failure of the “subordinate authority,” inclusive of the people, to hold the “general authority” in check would facilitate a slide toward tyranny and oppression.
Jefferson himself, before the convening of the Constitutional Convention, had long reflected on the issues of constitutional government. Just as his rendering of the Declaration of Independence drew from his earlier work, “A Summary View of the Rights of British America,” so, too, were his views on the American Constitution drawn from his earlier writings on issues pertaining to the Constitution of Virginia, which are contained in a collection of work dating from 1781-82 known as “Notes on Virginia.” The purpose of a Constitution, Jefferson wrote, was ” … to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”
Here Jefferson himself answers the question of the need to “fertilize” the “tree of liberty” with the blood of rebellion: It is not required, nor desired, so long as a system of rule by law (i.e., a Constitution) is present and adhered to. The importance of a Constitution in preserving the character of a nation through perpetuity was paramount, in Jefferson’s view. “It is true,” he argued in his “Notes on Virginia,” that “we are as yet secured against tyrannical laws by the spirit of the times. … But is the spirit of the people an infallible, a permanent reliance? Is it government? Is this the kind of protection we receive in return for the rights we give up? Besides, the spirit of the times may alter, will alter. Our rulers will become corrupt, our people careless.”
Today one need only observe the corruption of our rulers and the carelessness of our people to understand the significance of the Constitution when it comes to preserving these United States of America. The nefarious nature of the Bush cancer is that, in its infection of the American system, it seeks to draw legitimacy for its tyrannical actions by citing the very same Constitution it seeks to destroy. The promoters of this point of view cite the academic term “Unitary Executive Theory” when defining their philosophy. To me, it is nothing less than treason. The Founding Fathers, in discussing the concept of a “unitary executive,” made use of the term in a manner reflective of their desire to restrain executive power, versus the extreme interpretation embraced by counsels to President Bush and Vice President Cheney, who seek to expand executive power and authority to near dictatorial levels, especially during a time of war.
The tendency on the part of President Bush to obviate the role of Congress is well documented, in matters pertaining to governance in times of peace as well as war. The unprecedented number of “presidential signing statements” issued by Bush speaks volumes to this trend. These signing statements, historically a device used by executives to protect presidential prerogative when it comes to how a bill might be interpreted in a court of law, have been used by the Bush administration to negate the legal impact of a given piece of legislation by clearly stating the intent of the president to act in a manner inconsistent with the letter of the law. That the president believes he has a right to conduct himself in this manner is the height of hubris; that Congress continues to facilitate this behavior unchallenged represents the depth of legislative depravity.It would be interesting to have a national debate on the concept of a “unitary executive,” where the proponents would cite the “vesting clause” (Article II, Section 1) of the Constitution, which states, “The executive Power shall be vested in a President of the United States of America.” The advocates of a “unitary executive” combine the “vesting clause” with Article II, Section 3, Clause 4, the “take care” clause, which states that the president must “take care that the laws be faithfully executed” to make a case for a seamless hierarchy of power solely vested in the executive.
Stephen Calabrisi and Kevin Rhodes staked out this argument in their 1992 article, “The Structural Constitution: Unitary Executive, Plural Judiciary,” in the Harvard Law Review (Issue 105, 1992). The foundation of their argument is drawn from a backwards reading of the Constitution, which addresses the issue of “Mandatory Jurisdiction” as set forth in the “vesting clause,” not of the executive, but rather the judiciary, in Article III of the Constitution.
By establishing a link between the exclusive authority of the courts derived from the “vesting clause” of Article III, Calabrisi and Rhodes argue that a similar exclusive authority, this time for the executive, is derived from the “vesting clause” of Article II.
Of course, the Constitution was not written from back to front, and should neither be read nor interpreted from back to front. Missing from the entire dynamic of the underlying theory of the proponents of a “unitary executive” is the pressing reality of the Constitution itself, in particular the “vesting clause” of Article I, Section 1, which states that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Likewise, Calabrisi and Rhodes ignore Article I, Section 8, which enumerates the powers of Congress, and Article I, Section 8, Clause 18 (the “necessary and proper” clause), which states that Congress shall have all the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
The “necessary and proper” clause gained preeminence with the landmark case of “McCulloch v. Maryland,” decided by the Supreme Court in 1819. The decision by Chief Justice Marshall clearly established the principle that that the Constitution grants to Congress implied powers for implementing the Constitution’s express powers, in order to create a functional national government. Marshall noted that the “necessary and proper” clause “purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.” Marshall went on:
This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.
That Chief Justice Marshall was speaking about the Congress of the United States when addressing the issue of the expansion of enumerated power should not be missed by those who seek to invalidate the theory and practice of a “unitary executive.”
The sad fact is, however, there are far too few Americans who are equipped and/or prepared to engage in a constitutional discussion, not to mention one of this magnitude. Having failed to read and comprehend this vital cornerstone of America, they are poorly positioned to come to its defense in this, the Constitution’s time of need. You cannot defend that which you remain ignorant of. Thomas Jefferson, in an 1802 letter to his friend and confidant, Joseph Priestly, noted that, “Though written constitutions may be violated in moments of passion or delusion, yet they furnish a text to which those who are watchful may again rally and recall the people. They fix, too, for the people the principles of their political creed.” Thus, an American people ignorant of their Constitution remain a people collectively void of principle or creed. Given the state of affairs that is the American body politic today, this is a harsh yet far too accurate indictment of the state of American citizenship.
Those who espouse the nobility of patriotism by extolling Article II, Section 4 of the Constitution, which addresses the issue of impeachment of the president and vice president, are all too mute about the remainder of that great document. Whether this silence is derived from negligence or ignorance, or a combination thereof, is not the point. What lies at the heart of this issue is that void of a solid foundation of “creed,” as Jefferson put it, to fall back on in times of constitutional crisis derived from the abuse of power and authority. The American people have only a bottomless pit as their support, and that is no support at all.
Impeach President Bush? Maybe, if due process dictates. Repudiate President Bush? Absolutely, especially if one aspires for an America that truly matches the visions and ideals set forth by the Founding Fathers.
Repudiate the notion of a “unitary executive.”
Repudiate presidential signing statements.
Repudiate executive violation of Article 6 of the Constitution, which binds municipal law in America with binding treaty obligations incurred when the Senate ratifies a treaty or agreement by a two-thirds majority or better.
Repudiate “faith-based initiatives” pushed by any branch of government.
Repudiate a weak Congress.
Repudiate weak senators or representatives, especially those with a track record of abrogating their constitutional mandate.
Repudiate ignorance, especially that of the American citizen who knows little or nothing about the Constitution which empowers him or her.
Repudiate consumerism, especially the virulent form it takes in the selfish framework of American-centric capitalism.
Repudiate pre-emptive wars of aggression.
Repudiate American Empire.
Instead, embrace the empowerment of education. Embrace active citizenship. Embrace the rule of law, as set forth by the Constitution. Do all of this and, in the end, if conditions and circumstance warrant, impeach President Bush and any of those in his administration so deserving.
Thomas Jefferson was prescient in his musings to another confidant, Moses Robinson, in 1801 when he wrote, “I sincerely wish … we could see our government so secured as to depend less on the character of the person in whose hands it is trusted. Bad men will sometimes get in and with such an immense patronage may make great progress in corrupting the public mind and principles. This is a subject with which wisdom and patriotism should be occupied.”
That wise American patriots would be so occupied today is my wish and dream.
Scott Ritter was a Marine Corps intelligence officer from 1984 to 1991 and a United Nations weapons inspector in Iraq from 1991 to 1998. He is the author of numerous books. His latest is “Waging Peace: The Art of War for the Antiwar Movement” (Nation Books, April 2007).