POC Separation of Church and State Newsletter #11
Thomas Jefferson’s fear of judicial usurpation of power:
“… the germ of dissolution of our federal government is in the constitution of the federal Judiciary;... gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” 1
Article II, Section. 4, of the U.S. Constitution
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The key to understanding the purpose of impeachment and removal lies in the original intent, and true definition of the words:
“… or other high Crimes and Misdemeanors.”
Please, join me in a review of our founder’s documented intent. This may be the most important newsletter yet in this series. It is slightly longer so please read it carefully.
IMPE'ACH, Webster’s 1828 Dictionary
“2. … to charge with a crime or misdemeanor; but appropriately, to exhibit charges of maladministration against a public officer before a competent tribunal, … The word is now restricted to accusations made by authority; as, to impeach a judge.”
James Wilson was a signer the Constitution and the Declaration of Independence, an original Justice of the U. S. Supreme Court, and co-author of America's first Commentaries on the Constitution (1792).
“[I]mpeachments are confined to political characters, to political crimes
and misdemeanors, and to political punishments.” 2
Regarding the jurisdiction of Congress to impeach, Hamilton said in Federalist 65, pg. 265:
“Their jurisdiction extends to offenses proceeding from the misconduct
of public men. Or, in other words, from the abuse or violation of some
public trust. The offenses may properly be called POLITICAL, since they relate chiefly to injuries done immediately to society itself.” (emphasis added)
Justice Joseph Story,
appointed to the U. S. Supreme Court by President James Madison (1811-45);
considered the founder of Harvard Law School and its Professor of Law (1829-45); his contributions to American law have caused him to be called, … the "Father of American Jurisprudence." 3
Story said: Impeached officials subject to criminal court
"The Constitution, then .... has wisely subjected the party [the impeached official] to trial in the common criminal tribunals for the purpose of receiving such punishment as ordinarily belongs to the offence .... with the same unsparing severity which attends upon other and humbler offenders." 2
(This trial and punishment is completely separate from removing a public official from office)
Story also said:
“The offences which the power of impeachment is designed principally to reach are those of apolitical or of a judicial character.” 6
“… an impeachment … is not so much designed to punish an offender as to secure the state against gross official misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity.” 6
“The offences to which the power of impeachment has been and is ordinarily applied as a remedy are … political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests… unconstitutional opinions … attempts to subvert the fundamental laws and introduce arbitrary power” 6
(Federal judges are becoming more embolden in these areas where emphasis has been added)
John Randolph Tucker wrote: Commentaries on the Constitution in 1891. He was a US Congressman, constitutional law professor, and an early president of the American Bar Association.
"The process of impeachment is a political proceeding, against the accused as an officer of the government, to protect the government from the present or future incumbency of a man whose conduct has proved him unworthy to fill it … The impeachment power was intended to cleanse the government from the presence of worthless and faithless officials." 4 (emphasis added)
It is clear from the above, and many more early writings, that impeachment by the House of Representatives (equivalent to a grand jury proceeding), and removal from office by the Senate (the actual trial its self), was a political process to remove unworthy public officials from office.
Because this removal touched neither their person or property they were subject to the same kind of trial as anybody else after their removal if in addition to violating their public trust they also violated a public law.
This is the only case where there is no double jeopardy if a law had been broken.
The modern day notion of impeachment is that an official has to violate a law rising to at least a misdemeanor or greater to be impeached. This is a total misrepresentation or misunderstanding of the original purpose and safeguards of removing unworthy, treacherous, or dangerous public officials who exhibit, “personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.”
Charles L. Black, Jr. said in his book: Impeachment: A Handbook (New Haven: Yale University Press,
“[T]he limitation of impeachable offenses to those offenses made
generally criminal by statute is unwarranted-even absurd.” 5
David Barton, in his book Impeachment, concludes:
"Very simply, impeachment is the recourse when judges attempted to disregard public interests, to affront the will of the people, or to introduce arbitrary power by seizing the role of policy-maker." 6
The next POC Newsletter will present the bill known as The Constitution Restoration Act. This bill would stop some of the judicial breaches of power short of impeachment.
1-The Federalist Patriot, Founders' Quote Daily 2-17-05
America’s God and Country, William J. Federer, Pg. 330
2 - Impeachment, Wallbuilders, David Barton, pg. 12
3 - Original Intent, David Barton, Wallbuilders, pg. 430
4 - Impeachment, pg. 16
5 - Impeachment, pg. 14
6 - Impeachment, pg. 17