House Democrats are taking a politically obvious, but constitutionally oblivious, approach to impeachment. Make no mistake, they are perfectly within their rights to proceed; however, how they proceed is crucial to preserving the importance of this monumental undertaking. As the framers knew, impeachment uniquely violates the separation of powers upon which the Constitution rests. An act of such magnitude demands full admission to the people and explicit imprimatur from their representatives, the House of Representatives, to proceed.
Despite having begun de facto impeachment inquiries in several committees several months ago, Democrats have yet to take the formal step of a House vote to begin the official process. House Democrats recently reaffirmed that decision. The reason is clear: It would be bad politics for vulnerable Democrats – especially those in Trump districts – and leaders know this.
Currently, Democrats can generate headlines without political headaches. Their approach as selective detectives – partial revelation without full responsibility – offers reward without risk. The problem is that while it makes for good politics, it is bad for the Constitution.
How divergent this political approach is from the constitutional one taken by the framers is clear from a review of the 1787 Convention. The framers went to great lengths to circumscribe our government’s reach. Their framework, our Constitution, is remarkably brief because the government was not intended to be expansive.
Even when power is allocated to the government, it is further checked by a separation. Descriptions of the Convention’s debates over the of separation of legislative, executive and judicial functions demonstrates the seriousness and length the framers went to achieve this.
Amidst this circumscription and separation of power stands the anomaly of impeachment. Matching its overall brevity, the Constitution is similarly laconic on impeachment.
What makes impeachment stand out is its unique contradiction of the separation of power. During the Convention, James Madison recorded Virginia’s elder statesman George Mason’s seriousness: “No point is of more importance than that the right of impeachment should be continued.” The legislative branch alone has the power to remove members of the other two branches.
The process of this removal is equally telling of the framers’ intent to incorporate the powers into this abridgment of their separation. The process begins with the people’s direct representatives, the House, which passes articles of impeachment. It moves to the states’ representatives, the Senate (which was originally elected by the state legislatures and still retains equal state representation). The Senate serves as jury, with the Supreme Court’s chief justice presiding over the trial, and cannot convict the president without two-thirds voting for it.
Despite this meticulous incorporation of all powers, impeachment cannot alter its contradiction. It remains a removal of the executive by the legislative presided over by the judicial. Impeachment is nothing short of an awesome, contradictory and ultimate power under our Constitution.
Putting impeachment in its true constitutional context illustrates why the House must formally vote to begin it. The House votes on everything. It cannot so much as name a post office without a vote. If the House cannot transact the most trivial of business without a vote, how is it to be presumed it could undertake the most portentous business the Constitution permits?
Without a vote, the question arises by what authority the House acts on this the most authoritative of business. The framers knew well when they included this ultimate lever that the carefully crafted separation of powers could also yield an impasse, whereby the powers could reach crisis and an inability to function. An ability to override this separation was included and given to the legislative branch to resolve this.
This most monumental of powers was given to the legislature for a reason. It’s a power that could as easily have been placed at the disposal of the other two branches. But the idea was that the people were to hold that power through their representatives in Congress. They were to initiate it and determine its outcome. Such a careful procedure for so momentous a step demands deliberate action concurred in by the full will of the House to begin.
House Democratic leaders’ desire not to hold a vote to initiate impeachment proceedings is politically understandable. The problem is that it makes it no less constitutionally untenable. The Constitution’s separation of powers demands impeachment’s separation from politics.