How I think the revenant Framers would amend the impeachment process



The Framers who thought that impeachment would work

That the Senate in wisdom their duties won’t shirk,

Would see things today

In a much different way

And perhaps make the Chief Justice more than a clerk.


Filed under: impeachment trial


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  • I don't know. Chief Justice Roberts seems to still believe in the fable that most agree is long gone: that the Senate is the "World's greatest deliberative body". A Chief who believes that will probably continue to play a passive role in a Senate trial.

  • Yes, agreed on that. But my point is perhaps an amendment is needed here to counter extreme partisanship.

  • In reply to Aquinas wired:

    The only amendment that would work that way is to make impeachment a judicial function with clear precedents, but then the press would be complaining that 5 out of 9 Justices were appointed by Republicans.*

    Heck, McConnell started the proceedings after the March of the Managers with "Let's set aside partisanship" but we knew he was lying.

    On the Chief Justice as a clerk point, Illinois has a similar concept and gave the State Chief Justice a plaque thanking him for the fine job he did presiding over the trial. The difference seems to be that Ill. Dems. can throw out someone who embarrasses them so badly, while U.S. Senate Republicans can't.
    *Not much different than CTU complaining in yesterday's Sun-Times that it lost a case because of a Trump judiciary, even though the judge was appointed by Obama.

  • In reply to jack:

    The drafters considered making impeachment a judicial trial, but they rejected this. They decided that the issue is essentially a political one, not judicial.

    Maybe we could go back to an earlier trial procedure, trial by combat. This could work one of several ways. The lead House manager or the Speaker could do combat with the president. Or all of the House managers could go against the president and his or her cabinet. Or the Senate majority and minority leaders could engage.

    Whichever was selected, the Chief Justice could officiate, including encouraging negotiations for a compromise--which may then be more attractive to the combatants than it is today.

  • In reply to jnorto:

    I'm not sure about Schiff's ability to wield a sword.

  • In reply to jack:

    The pen and, in this case, eloquence are sometimes mightier than the sword.

  • In reply to Aquinas wired:

    Only if the purpose of the exercise is to cut clips for future DNC commercials.

  • In reply to jnorto:

    And who came out of the door, jnorto -- the lady, or the tiger?

  • In reply to Margaret H. Laing:

    Yes, I think Frank Stockton pretty well describes the procedure I am suggesting. And in the spirit of his short story, I wonder, to which door would Melania signal Donald?

  • In reply to jack:

    I know Hamilton opined that the Supreme Court would not be the best place to rule on impeachment, but that was then and this is now. The Senate then was not popularly elected and supposedly could see issues with less partisan pressure. Today that is far from true.

    I think this reality inescapably dictates in order for us to avoid a would-be autocrat who has taken over his party from taking over the government itself, we have to rein him or her with a different form of impeachment trial. One that whatever its limits would stand a better chance of rendering a just decision.

    In my opinion, Jack, inadvertently, you may have hit upon it. Let the Supreme Court rule on whether a president should be retained or removed.
    Your objection as well as that of others is what we see today: the 5-4 decision. But at least it would be a decision by real jurists who would appreciate the gravity of the case and recognize the facts of the case.

    This would be an enormous improvement of what we have now. And not to be presumptuous, I think Hamilton just might assent.

  • In reply to Aquinas wired:

    Are you really going to respect a decision with Kavanaugh on it? Only if you believe that he and the rest of the justices will revert to their Harvard/Yale roots.

    On the Senate point, why wouldn't the Senate, in the absence of the 17th Amendment, not be subject to the pressure of the respective state legislatures?

    The only thing politically that I contemplate the framers contemplating is that there would only be Federalists. The 12th Amendment was a result of that not lasting very long.Apparently nobody listened to Washington's Farewell Address about the evils of parties and factionalism. Considering references to North and South parties, there would not have been a Civil War if they had.

  • In reply to jack:

    No, there still would have been a Civil War. For all of the genius we assign to them, the drafters failed miserably to eliminate the curse of slavery, and the contraptions they designed to accommodate it, such as the electoral college, live with us still.

  • In reply to jnorto:

    And that is at the heart of the matter.

  • In reply to jnorto:

    I had only referred to The Farewell Address. Obviously, Washington had his slaves.

  • In reply to Aquinas wired:

    What we have now is, to coin a cliche, a failure to communicate. When I hear people around me saying that impeachment is being talked about too much, I get very scared about the outcome.

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