Impeachment, High Crimes and Miss Kagan

Why Obama's appointment of Kagan to the Supreme Court is an impeachable offense.

As anti-Constitutionalist Elena Kagan continues her uninterrupted march towards a Supreme Court seat, the divide of political opinion grows ever deeper.  On the left, the New York Times heartily endorses her because, as their Editors wrote:

Ms. Kagan made it clear that justices need not always bow to the intentions of the Constitution's authors. She said many of their ideas need to be reinterpreted in light of later advancements, citing search and seizure procedures and whether the First Amendment has anything to do with libel. She rejected the notion that constitutional interpretation is merely a robotic task of calling balls and strikes[emphasis added]

Over on the Right, the howls of anger and concern are increasing in volume because Kagan feels that justices need not always bow to the intentions of the Constitution's authors.

As for Scragged?  Well, in an article last week we took a position somewhere off the end of the current continuum of political debate:

By appointing an out-and-out anti-Constitutionalist to the Supreme Court, Barack Obama has made a mockery of his oath to "preserve, protect, and defend the Constitution."  There are many things he has done for which he should be held accountable at the ballot-box alone.  For expressly and wantonly violating his oath of office, though, impeachment seems the appropriate penalty[emphasis added]

Even for regular Scragged readers, this seemed a bit harsh.

Yes, Elena Kagan made it clear that she feels under no obligation to follow the Constitution in her rulings; we wonder if she'll be willing to take the oath of office and what if anything it will mean to her if she does.

Yes, in her arguments before the Court as Solicitor General, Kagan explained that unconstitutional laws gutting the First Amendment were really no worry because bureaucrats could be trusted not to enforce them in that way, despite an uninterrupted history of bureaucrats doing the opposite.

But to impeach the President who appointed her?  As awful and un-American as she is, the President has an absolute right to appoint whomsoever he wishes; it's neither a "high crime or misdemeanor" as the Constitutional language of impeachment goes.

Wrong.  Alas, even the staunchest of conservatives cannot help but be affected by the modern liberal thought which pervades our nation.

In referring to crimes and misdemeanors worthy of impeachment, our Founders expressly did not mean crimes in the criminal sense - those could be dealt with in a criminal court like any other, with no need for a special process.  If the President were to rob a bank or commit assault, for example, the normal judicial process could deal with the crime without necessarily reference to impeachment.

No, the entire reason for the impeachment process is to deal with political crimes against the nation as a whole - actions which could neither be foreseen nor effectively legislated against, but whose severity is no less for all that.

Whither the Federalist Papers?

Since the election of Barack Obama, America has seen a sudden and desperately-needed resurgence of Constitutional awareness.  Ordinary people all across the fruited plain are digging out a dust-covered copy of the Constitution and reading it for the first time in many years if ever; then, even more important, they are actually thinking about what it means and discussing it with their neighbors.

The hundreds of thousands who gather at Tea Parties often arrive Constitution in hand, thumbing through it like a Bible at a revival service.  Yes, what we are seeing is nothing less than a revival of America's civic religion: honor of our Founders and our founding documents.

As vital and profound as the Constitution is, however, it alone is not enough to save us.  For fifty years now, statists and their allies have wrested the terse words penned by James Madison to make them mean whatever they please.

The authority to regulate interstate commerce becomes the ability to regulate anything whatsoever without limit; the implied (never stated) right to privacy becomes a pass to gruesomely slaughter the unborn; declared equality of citizenship becomes special rights for blacks, babes, and buggers.

Our Founders were no fools.  They wanted a Constitution as short as possible; but they provided, in the Federalist Papers, hundreds of pages of clear commentary explaining precisely what the few Constitutional words were intended to mean.

For every thousand Americans who are familiar with their Constitution, there is perhaps one equally well versed in the Federalist Papers; this needs urgently to change, and the question of impeachment illustrates why.

Here is what James Madison, the Father of the Constitution, had to say about impeachment:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

This is the exact opposite of what we were taught in school, and what most Americans think to be true.  Remember the fury at Clinton's impeachment?  How dare you impeach a President for mere sex, which is no crime!  Or, for those who understood that the true issue was his telling lies under oath, well, perjury about sex is not a very big crime.

The Federalist reveals such arguments to be missing the point.  The President is the chief executive officer of the nation; his job is to enforce the law.  How can he credibly do this if he cannot be trusted to tell the truth under oath, something we demand of the meanest petty thief?

Sex had nothing to do with it; if Bill Clinton had simply refused to answer the questions Ken Starr asked, most likely nothing would have been done.  But he chose to lie, and lies told under oath should have disqualified him from office.

A Clear and Present Danger

We can imagine other examples.  Suppose that Franklin Roosevelt had suddenly become persuaded of the rightness of the Nazi cause in 1942 and commanded our forces in Europe and Africa to place themselves under Hitler's command.  The Constitution gives the President powers as Commander in Chief; obviously, he would have the legal authority to do this.

Equally obviously, it would be absurd to expect the nation to wait until the 1944 election to throw him out.  Immediate impeachment is the obvious, inevitable, and Constitutional answer to a President who takes leave of his senses and betrays the country in such a profound way.

It is precisely this, in a less dramatic but no less sure fashion, which is represented by Obama's appointment of Elena Kagan.  The Constitution declares itself to be our supreme law; Kagan has repeatedly said that the opinions of foreign courts should affect judges' rulings, and in any case, the Constitution should mean whatever she wants it to mean regardless of what the Founders thought.

The Constitution places areas both specific and general entirely out of bounds for Federal government action; Kagan was incapable of identifying one single law which Congress has not the power to pass, and said bureaucrats are equipped to decide what's Constitutional and what isn't.

The Constitution as explained through the Federalist Papers has a clear meaning anyone with a moderate education can understand; Kagan denies that it has any meaning whatsoever.

If her appointment is not an attack on the Constitution, what is?  If appointing someone who has declared her intention to attack the Constitution is not a violation of Mr. Obama's oath of office, in which he swore to preserve, protect, and defend it, what is?

And if an attack on our very foundation of government is not an impeachable political offense, what could possibly be?  If Justice Elena Kagan is not an "injury done immediately to the society itself," what is?

Why, then, didn't the Founders ever use impeachment this way - or, really, at all?  For one thing, they didn't have to - the electorate of those days wisely chose to put a higher quality of politician into office than today's electorate have seen fit to do.

The first really notorious impeachment we remember was of President Andrew Johnson after the Civil War; unfortunately, that impeachment wasn't just political, it was part of a "separation of powers" power struggle in which Congress was trying to take over authority Constitutionally assigned to the Executive Branch.  In effect, Johnson was accused of violating a law that was unconstitutional; he was quite properly acquitted, but the entire impeachment process took on a bad odor.

Back to First Principles

It is true that for many years, America's understanding of the purpose of impeachment has been very different from what Madison described in the Federalist.  Is it not equally true that our government has utterly lost the script of what limited, Constitutional government means in the first place?

What we need today is a Constitutional restoration - a slashing and burning of government departments, regulations, and Federal reach on a wholesale basis.  And a proper understanding of the importance of impeachment is a necessary part.

For the Constitution does not just give Congress the power to impeach the President; it can impeach federal judges and other officials as well.  Yet in all of our history, a grand total of nineteen impeachments have taken place.

Surely we can agree that is not even remotely enough?  A careful reading of the Constitution and the Federalist Papers, cross-referenced with the Lexis-Nexis law database, would probably reveal nineteen hundred judges and other officials who have willfully violated their oaths of office.

Whether it be Tim Geithner the tax cheat, or Eric Holder who refuses to prosecute blatant voter intimidation, or Homeland Security Secretary Janet Napolitano who has stated that defending our border is impossible while refusing even to try, a Senate composed of the Founders would have a stack of impeachments ten feet tall.  That isn't going to happen overnight; but we have to start somewhere, with a proper appreciation of what the Founders had in mind when they created the process of impeachment.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Politics.
Reader Comments
How can she take an oath to uphold the Constitution if she doesn't believe in it? Or does she not believe in oaths at all?
July 7, 2010 8:17 AM
Great catch with the Federalist Papers. I was wrong, clearly, when I commented on the past article. Crimes and misdemeanors were intended to mean more than strict illegal activity.

However, I'm still reluctant to back impeaching the Prez over a nomination. Once you go down that road, every Prez from here on, would be impeached if the opposition party held Congress.
July 7, 2010 8:22 AM
I tend to agree that more federal judges ought to be impeached. There were bumper stickers, "Impeach Earl Warren." Should he have been impeached?
July 7, 2010 8:50 AM
Well as to oaths, as I recall Obama flubbed his oath of office (no teleprompter). Showed he didn't care a fig for it, and had not practiced it.

So about Kagen taking the oath of office to defend the constitution? No sweat, She will lie. It is easy, just smile and say the words. There is no threat of impeachment, the guard dogs are all asleep and sated with political pork.
July 7, 2010 9:15 AM
Once again, I find myself in complete agreement with lfon. Is it possible that we've found a flaw in the founders' plans?
July 7, 2010 9:37 AM
I don't at all share lfon's worries. The only possible way that might be a problem, is if more than 2/3 of Congress (both houses) were of the opposite party from the President. This virtually never happens; pretty much the only way it would, would be if the President had so infuriated the populace as to generate an absolute landslide. Even Obama probably isn't going to generate a Republican landslide that large, and by 2012 the voters will have the opportunity to express their opinion of Obama directly.

Regarding Obama's oath, IIRC it was actually Chief Justice Roberts who fluffed it - Obama's supposed to "repeat after me" to Roberts, Roberts got it wrong, and Obama stumbled but went with his (wrong) lead. They re-did it later on just to make sure.

Agreed - of course Kagan will lie, that's what statists do.
July 7, 2010 7:30 PM
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