By Ben Lenhart
America has the oldest written constitution in the world. Admired and copied by many other countries, it has endured for 231 years and counting.The Constitution greatly impacts many key issues facing our nation, but to grasp that impact it helps to understand how the Constitution came into being.
What forces shaped the Constitution? Two of the biggest forces: the American revolution and the intense desire that America never have a king, or worse, a dictator. The latter meant that the Constitution had to create strong measures to control the President, and in extreme cases, a mechanism—impeachment—for his removal. This article looks at the major forces that shaped the Constitution in 1787, and how impeachment played a key role then and now.
Revolution. The lessons of the Revolution echoed loudly in the minds of the Founding Fathers. Many of them fought in the bloody war, and all felt its legacy. Thousands of patriots died so that this new nation could be born. The patriots fought to throw off a distant power that wanted to control the American colonies, but didn’t understand or care about local conditions. They fought to rid themselves of a tyrant King, and to ensure that ultimate power would lie with the people. They fought for fair courts and fairly enforced laws, for religious freedom and other individual liberties. They fought so that they could govern themselves (“no taxation without representation”), and they fought so that the new government would not, itself, become corrupt and threaten their new-found freedoms.
These revolutionary forces profoundly impacted the shape of the Constitution. Reflecting a distrust of too much central power, the Constitution reserves to the states large areas of power (such as control over large areas criminal law, land use, family law, and business and contract law). The 10thAmendment states that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Monarchy was soundly rejected.Article 1 Section 9 forbids the federal government from granting any “Title of Nobility,” and just to be sure the point was crystal clear, Section 10 repeats the same prohibition, but this time applying it to the states. The Bill of Rights protects many of the greet freedoms that we all enjoy—freedom of speech, freedom of religion, the right not to have the police unlawfully search or arrest you. And to safeguard these rights, the Constitution creates many “checks and balances” on the federal government: dividing power between three branches; allowing the President to veto legislation; allowing Congress to override the veto; and empowering the courts to strike down actions by the President or Congress that violate the Constitution.
Articles of Confederation. Our present Constitution is not our nation’s first. The Articles of Confederation were ratified in 1781 and lasted only until 1788 when replaced by our current Constitution. The Articles of Confederation failed miserably. However, the lessons from that failure provided invaluable guideposts to the Founders in shaping the new—and hopefully better—Constitution. The Articles of Confederation failed because they tilted too strongly toward local power, and created a very weak federal government. For example, there was no president, no federal courts and no executive branch. The federal government had no real power to impose taxes or regulate commerce. Individual states conducted foreign affairs, and made treaties with one another and with foreign countries. Without these powers the national economy was in disarray, foreign countries were not sure who “spoke” for America, and the federal government lacked the power to quell rebellions and ensure law and order. Fixing these critical problems became a main focus for the new Constitution.
Enlightenment. America was lucky to be created in the years after the Enlightenment, which witnessed many great philosophers and writers. The Founding Fathers read widely the writings of John Locke, David Hume, Jean-Jacques Rousseau, and Montesquieu (and many others). From these revolutionary thinkers, the Founders drew many of the key concepts that would help shape America and our Constitution: the idea that ultimate power resides with the people; that government was a social contract between the people and the government, and that people could break the contract (and revolt!) if the government failed to serve the people; and that people had certain inalienable rights, which were best secured by creating a government that was subject to clear limits set out in a written constitution, including checks and balances and separation of powers. These ideas were in the minds and hearts of the Framers as they drafted the Constitution.
The King and Impeachment. With all of these factors in mind, the Founders wanted to create a new government for America that avoided the past problems. On the one hand, the new government had to be strong enough to run a large new country. On the other hand, it could not be so strong that it could take away the peoples’ hard-earned liberties. And the part of the government that posed the greatest threat to our liberties—then and now—is the executive branch. Article II of the Constitution vests all executive power in the president, which is good and bad. We need a strong and vibrant president to lead the country. But as the history of nations proves again and again, a “too strong” president can grow into a dictator, a ruler who puts himself above the law. When that happens, loss of freedom usually follows because free people are a dire threat to dictators. This danger is “clear and present” today—just read history or look around the world today at the billions of people forced to live under despotic rule, where individual freedoms are lost, and where the people are governed not by rule of law, but by the whims of unaccountable rulers. In such cases the social contract is broken—the people may want to overthrow the dictator—but revolution is never easy.
The Founders were intensely aware of this risk; after all, they had just fought a war to overthrow the unjust rule of King George III. So, when they drafted the Constitution, they took great pains to safeguard against a “too powerful” president. Under our Constitution, the president is subject to many “checks and balances” including (1) court rulings (such as the Nixon “Watergate tapes” case) that strike down unlawful presidential actions; (2) the power of Congress alone to make laws, and to override presidential vetoes; (3) limiting the president’s domestic power to carrying out only those laws that Congress passes, not other measures or policies that the president favors, and (4) a four-year term of office (no life tenure like a king). In extreme cases, the Constitution has one final remedy, impeachment, which has been used very rarely—only 19 times in the 231 history of Constitution Now, President Trump is the 20th.
Impeachment and the Big Picture.
Some of the biggest forces shaping our Constitution were the lessons of the Revolution, the failed Articles of Confederation and the Enlightenment ideas of social contact and “Power of the People.” All of these have a common thread—they all push towards a Constitution aimed at creating the best possible conditions for the American people, allowing them to live safe, just, free and prosperous lives.
Ultimately, we care less about the Constitution itself, and more about what it does: establishing a framework for government and society that creates the best conditions for “a good life” for the people.
So, too, with impeachment. On the surface, presidential impeachment is all about serious presidential misconduct, and the hard question in each case is: Did the president truly engage in such misconduct. But at the end of the day, it is not the presidential misconduct itself that we care most about (although that’s still important), but rather the risk that such misconduct poses to the Constitution and, more importantly, to “we the people.” If a president can engage in serious misconduct and suffer no consequences, if a president can be above the law, that is a step toward dictatorship, and a step toward dictatorship is a step toward destroying the American way of life, defined by freedom, that the Constitution has protected for over 230 years. That is why impeachment of any president is so consequential for all of us, and why it is so important that we get it right.
[Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]