HLS in the World | Impeachment
Articles Blog

HLS in the World | Impeachment

September 21, 2019

CASS SUNSTEIN: OK. So I’ve spent most of the
last year in the 18th century and produced a book that
just came out today. And I’m going to
tell you about it. Some books really are all
heart, and my book isn’t that. And some books are all head,
and this particular book isn’t that. So what I think I will
do is start with heart, and then do head, and then
we’ll kind of be in the middle. Here’s the origin of this book. So, with your indulgence, I’m
going to read for a little bit. And then we’re going to
talk about the Constitution. A few months ago, I moved from
New York to Massachusetts. My wife, who’s, in the
house, Samantha Power, and I chose to live in Concord,
though were not working there. This wasn’t a
practical decision. Concord is beautiful,
It’s also historic. It’s where the Revolutionary War
started on April 19, 1775, when 700 British soldiers were
given what they thought were secret orders to destroy
colonial military supplies being held in Concord. That’s where Paul Revere rode,
where dozens of colonists fought and died, and
dozens were badly hurt, and when our national
experiment started. Do you know the phrase “the
shot heard around the world”? If you’d asked me
a year ago, I would have said with a 100%
confidence that it referred to Bobby Thomson’s
game-winning home run in 1951, which won the pennant
for the New York Giants. Wrong answer– the phrase
is a lot older than that. Here’s Concord Hymn, written in
1836 by Concord’s Ralph Waldo Emerson, for the
dedication of the Obelisk, a monument commemorating
the Battle of Concord. Focus, if you would, on the
fourth line, though I confess it’s the third that
really gets to me. “By the rude bridge
that arched the flood, their flag to April’s
a breeze unfurled. Here once the embattled
farmers stood and fired the shot heard round the world. On this green bank,
by this soft stream, we set today a votive
of stone that memory may there deem redeem, when like
our sires, our sons are gone. Spirit that made those
heroes dare to die and leave their children free,
bid time and nature gently spare the shaft we
raise to them and thee.” Emerson wrote that 61
years after the event. No single shot is
known to have started the American Revolution,
but it was in Concord that British soldiers
confronted the American militia on North Bridge. I’m going to show you
a representation that is super accurate, according to
the contemporaneous observers. The Americans were
under strict orders not to shoot unless
the British shot first. There are the Americans
on the far side. There is the British. You notice the British
look really professional. They were. The Americans are farmers. The British started by
firing two or three shots into the Concord River. This is from the
statements of people who were there at the time. The Americans thought that
those were just warnings. You know, the British were
their family members, basically. And the idea they’d
actually shoot at them, that was not expected. The Americans stood by
thinking that they’re trying to disperse us. We’re not going to go. It’s going to all
stand down in a moment. This is a, you know, they’re
trying to get the munitions. We’re not going to let them. It’s going to end there. But the British
followed basically 45 seconds later with
a volley, by which they killed two Americans. They killed a fifer,
who was in his teens, and they shot in
the heart, by luck, one of the two American
military men who were there who weren’t real farmers. Captain Isaac Davis, killed,
murdered, the first American to die in the revolution. And he left a widow
and four kids. The other military guy was
named John Buttrick, a leader of the Concord militia. And he leaped from the
ground and exclaimed– and everyone who was there said
these were his exact words– “Fire, fellow soldiers,
for God’s sake, fire.” What gets to me about that, I
confess, is “fellow soldiers”? They were farmers. They weren’t soldiers
until that moment. And “for God’s sake”
is pretty extreme talk. He knew their lives
were on the line. They were about
to get massacred. According to those
who were there, the word “fire” ran
like electricity through the whole
line of Americans. And for a few seconds,
the words “fire, fire” were heard from
hundreds of mouths. Acting as one, Concord’s
embattled farmers– and you can see them
on the other side– followed Buttrick’s order. They shot. That was the famous shot,
the first battle in which Americans defended themselves. Two of the British
soldiers were killed. The rest ran off. To their astonishment,
the Americans won the initial engagement,
and the war was on. To Benjamin Franklin, Alexander
Hamilton, James Madison, and their peers, revolutionary
Concord was not history, it was fresh. It was where their friends
and colleagues fought, and it was where
some of them died. Having settled on
Concord, my wife and I had to decide upon
possible houses for us, our two young kids, and the
puppy we would soon get, a yellow Labrador Retriever
whose name, of course, is Snow. There were two house finalists. The first had been
completed just a few months before we visited. Gorgeous, sunlit, shining,
functional, clean– perfect– with a
new air conditioning system, a kitchen to die for,
and all the modern amenities. No one could avoid loving it. The second finalist
was built in 1763 by an active participant in
the American Revolution named Ephraim Wood, Jr. In 1771, before the
revolution, Wood was chosen as one of Concord’s
selectmen town clerks, an assessor and
overseer of the poor. He was re-elected to
those offices 17 times. According to the Massachusetts
Historical Commission, the Wood House is among
the most important of Concord’s early farmhouses. The reason is it played a big
role in the Revolutionary War. It was one of the few places
that the British fighting forces went when they
were trying to get rid of the American munitions. And that’s because it held
some of the munitions. Wood detected them. He saw them coming, he
got the munitions out, and he took them
over a little river, right near the Wood
House, as it’s called. The house was saved
because a British spy, who was a neighbor, lied
to the British troops and said Ephraim Wood is not
involved in munitions holding. As the fighting started, got
terrible, and then worse, the house remained intact. It was there before
the US was a country, and it was there when
Jefferson wrote the Declaration of Independence. It was there when the
Articles of Confederation ruled the land. It was there when the
Federalist Papers were written and when the Constitution
was ratified. But in the 21st century
a few months ago, no one wanted to buy the house. The reason, you can
probably imagine? It’s not perfect. It’s 18th century origins show. If you’re over 5 feet 2, it’s
hard to get in the front door, it’s low. There’s a pony barn in back,
which no self-respecting pony would live in. Upstairs the floors
tilt. They’re like that. You feel as if you’re
dizzy or in a fun house. The master bedroom seemed
built for people, really, who were under five feet tall. Of course, the house didn’t
have air conditioning. The basement was a mess,
filled with crazy wires from various decades. We were interested in it, still. And we asked an architect, who
lives right near here, to visit and give us an evaluation. After he did, we looked
at him expectantly, and he was basically– he didn’t have a nice word
to say about that house. But still, whenever you enter
the front door and bend down, you know that you are where
the revolution started, where Americans hid arms ready
to fight for their liberty, and where they felt
a spirit that, quote, “made those heroes dare to die
and leave their children free.” I am one of those children. Reader, I bought it. That’s the heart of the book. It actually has everything
to do with impeachment. What I’ve learned
over the past year is that something happened
between 1750 and 1776 which makes the American
Revolution deserve to belong with the
French Revolution and the Russian Revolution
for earthshatteringness. The American Revolution
is often described as a kind of modest, within
the family, geographical split. We are, after all, speaking
often of Anglo-American law. The American
Revolution doesn’t look like it did anything major in
terms of politics or culture. That’s entirely wrong. Our nation and its
exceptionalism, ultimately defined, I think,
by the impeachment clause, is captured by the fact
that in the pre-1750 period, common people were made
to recognize and feel their subordination to
gentlemen so that they developed a down look, they willingly
walked while gentlefolk rode, and they seldom expressed
any desire to change places with their betters. So this is just a way of saying
that the American colonies were a culturally monarchical,
hierarchical regime in which people knew their place. And that was part of
self-understanding. Ordinary people accepted
their own loneliness. There was a radical revolution
in this period, in which republicanism was on the
march, and republicanism denied the intrinsic
superior of any human being to another human being. The idea of a down look was
extinguished in the period. And that meant that everyone
in this room, and anyone you see out in Cambridge,
or anyone you see in terrible
areas of our country, ultimately consistent with
the march of republicanism, has equal dignity. And this was something which
was a fire in the decades, such that people said
we were once subjects, we’re now citizens. We see through different eyes,
hear through different ears. Everything changed in such a
short time, the relationship to people with one another,
and the relationship between people with
their government, had never been turned
upside down so quickly. I had the great good
fortune to clerk for Justice Thurgood
Marshall who told me one day
about an encounter he had with Prince Philip
when he was just a lawyer. And he shook hands with
Prince Philip, and Philip after that looked at
Marshall, and said in the most posh British
accent, “Would you like to know what I think of lawyers?” To which Marshall responded,
“Would you like to know what I think of princes?” And Marshall was completely
tracking what happened in the 18th century in America. Americans didn’t like
princes very much. Bob Dylan, Nobel Laureate, said,
“Sometimes even the president of the United States
has to stand naked.” That’s really American talk. And I just learned, because
I’m kind of a Bob Dylan fan, that when he was in England,
he was under terrible fire for having abandoned
folk music in favor of songs like “Like
a Rolling Stone,” which is an American
anthem by the way about the equality of persons. And he was asked, “What
kind of music is this?” And Dylan’s answer was
“It’s American music.” He was recalling something
unleashed in the culture in the 18th century. The civil rights movement and
the women’s movement were born, I’m suggesting, in what
was on the march in Concord in the 1770s. So here are a few passages
that are just representative. John Adams wrote,
with astonishment, “Idolatry to monarchs
and servility to aristocratical pride were
never so erratically eradicated from many minds in
so short a time.” David Ramsey, who was actually
captured by the British and was one of the
first soldiers, said, “Subjects
look up to a master, but citizens are so far equal
that none have hereditary rights superior to others.” And Thomas Paine was
the one who said, “Our style and
manner of thinking have undergone a revolution
more extraordinary than the political
revolution of a country.” Now what I want
to tell you about is the Americanization
of impeachment. And this is a tale that is not
known even among specialists in impeachment. It took me a lot of really
boring and obsessive labor to uncover it. So Raoul Berger, who
actually lived in Concord, a Harvard
professor and, I think, the greatest historian
of impeachment, he missed something. What he got was impeachment
and the idea of high crimes and misdemeanors, these
are imports from England. But what he missed
was, in the period in which impeachment
was born in America, it was gone in England. It wasn’t being used much. And Americans started
doing it to the extent that John Adams, before
we had a country, described impeachment as
one of the primary liberties of Englishmen– impeachment one of
the primary liberties. And the background against
Adams was speaking was, the real first shots fired
in the American Revolution were not guns, they were
impeachment proceedings in which, in the
colonies, the Americans– not quite that yet, but that
was their self-understanding– were impeaching
British authorities for following the
orders of the crown. They deemed that an
egregious abuse of authority because it was
liberty restricting, and they called it a high
crime and misdemeanor. What happened in this period– during the seeing through other
eyes, no more down looks– was Americans started
impeaching authorities, creating a kind of
homegrown mechanism which resulted in extremely
insubordinate acts on the part of the
colonists against people who were following the king. After the revolution,
the states started putting impeachment clauses
in their own constitutions. It’s all over the early
state constitutions. Not only was it
technically recognized, there was a train of practice. And the practice
was not unclear. It was people were being
impeached if they egregiously abused the authority they had,
either by violating people’s liberties or by
grossly exceeding the legal authority they had. So there’s a period of
constitution-free United States of America, and
constitution-pervaded states of America, in which impeachment
is an embodied practice. But what about the executive? At the national level,
there isn’t one. That’s not amazing. The idea of a king was kind
of public enemy number one such that the post-revolutionary
America ran like the plague away from anything that
would be reminiscent of that. So here’s a tale. You may have heard it. This is my favorite version. There is a woman
named Mrs. Powell who said to Benjamin Franklin
after the Philadelphia Convention produced something. Said, “Well, doctor,
what have we got?” Franklin, by the
way, 81 years old. Said, “What have we got? A republic or a monarchy?” That’s the precise formulation. That’s the right question. And Franklin’s answer
was, “A republic, madam, if you can keep it.” And a Republican has to
give that answer, yes? Has to have the last few words
because if you’re committed to self-government and the
equal dignity of human beings, you cannot say “we have
given you a republic.” That would defy everything. But– and there’s the but–
that’s George Washington. And he became president. And we take that as not
a but, but at the time, it was a big but. Meaning, a president, who
has the kind of authority that Article 2
provides, is reminiscent of what the revolution
was fought for, and what people died
in Concord to prevent. That is a single person
with potentially tyrannical authority. Alexander Hamilton, of the
play, won a smashing victory at the Constitutional
Convention, which is to create a unitary executive. There was a battle of the
titans at the convention, in which some people who
were deeply respected, fought in the Revolutionary
War, were learned, said this is terrible. And you’re seeing three of them. Edmund Randolph said
the unitary executive would be the fetus of monarchy. And those aren’t just words. Those are exclamations of risk. The words from Hugh Williamson
were that the nation is going to have an elective king. John Dickinson, who was a
little bit lost to history, was one of the greatest
thinkers and statesmen of the time, one of the most
respected from Philadelphia. And Dickinson said
that Wilson, who was on Hamilton’s side, that
would produce an executive not consistent with the republic
and more akin to what happened in Great Britain. Dickinson went for
the jugular there, and no one missed
what he was doing. Nonetheless, Hamilton won. The idea was a modern
nation, modern at the time, could not operate without a
single powerful executive. Debate number one– should
there be impeachment? It was argued that there
shouldn’t be, by a minority, saying that it would
be inconsistent with the separation of powers. That if the Congress can
get rid of the president, then there’s too
much interdependence, and that’s no good. Here’s the argument
that carried the day. And it’s probably worth
pausing over every one of these fraught sentences. And what’s astounding to
see is in these debates, the revolution is fresh. The Concord battle is known
to be the beginning of it all. The number of issues being
resolved in a short time is fantastic, and yet the
degree of clarity and attention given to almost every one
is almost beyond belief. Here’s the argument given. “No point is of more
importance than that the right of impeachment
should be continued.” Pause over that
sentence should you? Can you? That’s not meant as rhetoric. Nothing we’re doing is
more important than this. “Shall any man be above justice? Above all, shall that man
be above it who can commit the most extensive injustice?” And this you can think
of as Dickinson’s revenge in the convention, against his
defeat at Hamilton’s hands. These are not Dickinson’s words,
but it’s Dickinson’s music. “Shall the man who has
practiced corruption, and by that means procured his
appoint in the first instance, be suffered to escape punishment
by repeating his guilt?” Meaning there, you procure your
presidency by corrupt means, and then can you do evil things
and be, continue, in office? My view is that the impeachment
provision is a sine qua non for the Constitution. Without it, we
wouldn’t have had one. And the kind of
defining document, for those who are
saying things like this, is the Declaration
of Independence. The Declaration of
Independence, if you read it in light of the period,
it’s articles of impeachment. That’s what it is. The second big debate
is, on what grounds shall the president
be impeachable? And there was very brisk
exchange of drafts that had radically different terms. And this is foundational stuff. It was only late that
the issue was resolved. A late draft said the president
is impeachable for treason and bribery. That’s it. That’s all. Mason urged, you’ve
got to be kidding. “Treason, as defined
in the Constitution, will not reach many great
and dangerous offenses.” And please pause, if you would
over “great and dangerous offenses.” Hastings, someone
who Edmund Burke was trying to get impeached,
was not guilty of treason. He acted lawlessly,
but not treason. Attempts to subvert
the Constitution may not be treason within the
meaning of the Constitution. As bills of attainder
are forbidden, it’s more necessary to extend
the powers of impeachment. So bills of attainder
are basically prosecutions of officials
by the legislature. That was thought to be
inconsistent with due process. So we need a broader
conception of impeachment. He moved to add after bribery,
“or maladministration.” That’s a very dramatic moment. Madison, who spoke, it
sounds like, off the page, very quietly, but decisively,
said, “So vague a term will be equivalent to a tenure
during pleasure of the senate. And then Morris, who’s
going back and forth, said don’t worry about it,
every four-year year election will prevent maladministration. Mason withdraws
maladministration and substitutes other high
crimes and misdemeanors. That’s it. High crimes and
misdemeanors is the cavalry. It rescues an extremely
difficult situation, which is definition. Now, I think the
core of this debate, what makes it
highly illuminating, is that Mason wanted to reach
great and dangerous offenses. That was his goal. He acknowledged Madison’s
point that maladministration is too broad. And he, himself, used high
crimes and misdemeanors, evidently thinking that great
and dangerous offenses were sufficiently picked
up by that term. What happened in ratification? Well, here are, in my view, the
four highlights of maybe 600 or so illuminating remarks. Highlight number one, Hamilton,
the fan of presidential power, says that “What
we’re speaking of is 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 society itself.” Hamilton was never casual
with words, at least in the Federalist Papers and
in the constitutional debates. The musical gets that right. He wasn’t casual with words. And that suggests
that a crime is neither necessary
nor sufficient. Meaning, if the president
shoplifts, or refuses to pay his income
taxes, we’re not in the domain of the
impeachable offense. But a crime is not
necessary, either. If the president says
Black lives don’t matter, and I’m going to impeach
any police officer who’s killed a person of color, that’s
impeachable in a heartbeat, even though it’s not a crime. If there’s any
ambiguity about that, the Virginia ratifying
debate nails it. One of the signatories to the
Declaration of Independence, who was at the
Constitutional Convention and refused to
sign the document, urged in the all-important
Virginia Ratifying Convention, you guys, we can’t do this. The reason is the pardon power. What was urged was the
pardon power is so expansive, the president can plot,
with one of his advisors, to do something terrible,
then the advisor is subject to criminal
investigation, and then the president
can pardon that person. This is not a
Constitution for us. And it’s a very
strong argument, yes? Made by someone who was both
highly respected and acute. Madison’s response? Very, very quiet–
it almost reads on the page almost like a whisper. He said, the gentleman seems
to have overlooked something. Madison said, if the president
shelters someone who’s done something terrible
via the pardon power, we have a remedy for that. It’s impeachment. And Madison urged,
actually, a broader account of what impeachment would
attach to through exercise of the pardon power than
his questioner raised by talking about the
president counseling crimes. He said, should you shelter
someone, impeachable So there’s Hamilton and Madison,
maybe our two best authorities on constitutional meaning. But there are two others
that are pretty good. Here in Massachusetts, even
before Harvard Law School existed, one of the
ratifying debaters said, “Thus we see that no
office, however exalted, can protect the
miscreant who dares invade the liberties
of his country or countenance in his crimes
the impious villain who sacrilegiously
attempts to trample upon the rights of free men.” If I had to have
one passage that captured what the
ratifiers thought were the grounds for
impeachment, that’s the one I would single out
because it tightly connects the impeachment clause with what
the revolution was fought for and calls up unambiguously
the concerns who thought we were going
back to the monarchy here. James Iredell, a very
respected authority, said that the president could be
impeached for being a villain. That’s probably imprecise. But then added a
president must certainly be impeachable for giving false
information to the Senate. Now that suggests that
a certain degree of– what’s the right word– probity was thought
to be necessary. Let’s talk a little
bit about easy cases. A president likes
police officers. He announces that if any
police officer is accused of murder or assault, he will
exercise the pardon power and pardon the officer in full. Impeachable. That’s right in the Virginia
Ratifying Convention. He may not have
committed a crime, but he’s abused distinctly
presidential powers in an egregious manner. A president was elected as
a result of a secret plan with, let’s say, Syria. As part of that
plan, the president worked closely and personally
with leaders of that nation to disseminate false information
about a political opponent. Clearly impeachable. That goes right to the
territory of the debates at the convention. A president issues an executive
order requiring his EPA to issue unlawful regulations. The Supreme Court unanimously
strikes down the regulations. Not impeachable. The president is allowed
to act on the basis of a legal judgment that
turns out to be wrong. Every president has. The president, after
a terrorist attacks, issues executive orders
designed to combat terrorism. Traveling in airports
or railroad stations is really tough, let’s imagine. And let’s suppose,
also, some of those are invalidated in court
on constitutional grounds. That’s also easy. We’re not talking here
of the kinds of things that Madison, Hamilton, and
others were concerned about. Here’s some hard cases– erratic decisions,
which are causing domestic and
international turmoil, the economy is collapsing,
the world is super dangerous. The president is
not incompetent. It’s just his judgment
is so terrible that there’s a bipartisan
consensus that he needs to go based on the
specific decisions which are misdemeanors, bad acts,
in their understanding. That’s actually a hard one. It’s not like what Hamilton,
and Madison in the convention, was talking about. I have an institutional
suggestion there, that in a really hard case
about the meaning of high crimes and misdemeanors, the process
solution is the right one. The House of Representatives
gets to resolve it, however it sees fit. It’s a gap case. Another gap case is one
in which the president is lying all the time about
foreign policy, budget, taxes. It’s not spinning. It’s just falsehoods. We have to be very careful here
because presidential statements that turn out to be false are
frequent in any administration, in a year, at least arguably
inconsistent with the truth. But we could imagine a case
that would be sufficiently– what– patterned,
that the debates in the ratifying conventions,
and Iredell’s comments, in particular, would trigger a
legitimate impeachment remedy. Let’s give a couple of
cases, and then we’ll go back to the beating
heart of this topic. President Nixon was
legitimately impeached. Some of the articles
of impeachment for him were shaky or not
clearly sufficient. But one of the articles
said he misused the apparatus of the government
to punish people who didn’t agree with him politically. There’s a tight link between
that article of impeachment and what was said
in Massachusetts. Use of presidential authority
to target political enemies? That’s a high crime and
misdemeanor within the meaning of the clause. Clinton. As squirm-producing or worse
as this photograph and those events are, not close to
the line of the impeachable. And the reason is what
President Clinton’s, articles complained of
were two things– perjury and obstruction of
justice, both in connection with the Paula Jones case. Perjury, lying about
his relationship with Monica Lewinsky. Obstruction of
justice, encouraging her, and other people, to
lie about his relationship with Monica Lewinsky, basically. Perjury, obstruction of justice. Obstruction of
justice and perjury are not necessarily
impeachable if they don’t involve something
like what called up the impeachment clause. And there’s actually a smoking
gun in the founding period, in which it’s urged that
conduct that the president can do that is the same conduct
that people who aren’t president can do, it’s not impeachable. It’s subject to
some other process, maybe after he’s not
president anymore. But the suggestion is that this
conduct however, awful, is not the kind of conduct that
triggers impeachment. So that was an
unconstitutional impeachment. The Andrew Johnson
impeachment was done because Andrew Johnson
fired his Secretary of War in violation of a statute
that prohibited him from firing the Secretary of
War and added the very statute firing the Secretary of War is
a high crime and misdemeanor. The statute actually said that. But saying so
doesn’t make it so. And President Johnson
had a good faith argument that the discharge was
legally permissible. And it turned out,
decades later, that the unanimous
Supreme Court said that the argument was correct. And recall that
errors, with respect to law, if they stem
from a good faith view of what the
law means, that’s not an impeachable offense. So that was
unconstitutional, too. There’s Mussolini, and
that’s a good slide to focus on as the category
of the plainly impeachable violations of civil liberties. Just a few last words. And, forgive, I’m going to
start with the personal quality. When I was growing up
in Waban, Massachusetts, about half an hour
from here, my family celebrated four holidays,
Christmas, Easter, Thanksgiving, and
the 4th of July. For a kid, Christmas and
Easter are the most fun, yes? But even for a kid,
Thanksgiving and the 4th of July can be the most meaningful. In school– first
grade, I think– it was imprinted on us that
during the Revolutionary War, Americans celebrated
Thanksgiving, too. Amazing, yes? They had that holiday then. In 1777, before
we were a country, the Continental Congress issued
the first national proclamation of Thanksgiving. And, a little over a year
later, George Washington established the first
Thanksgiving Day for the country under
the new Constitution. I didn’t know that
level of detail, but I did know something joyful
about George Washington– first in peace, first
in war, and first in the hearts of his countrymen. To yours truly, and maybe
to many people in this room, the 4th of July is the perfect
bookend to Thanksgiving Day. Yes, you can think
of it that way. My dad, a naval lieutenant,
fought in the Philippines during World War II. The fighting there was brutal. Maybe it was the worst
fighting of the war. It was apparently
astonishingly harsh. And my dad was
nearly killed twice. His most harrowing tale? He was driving a car through a
remote area in the Philippines, and he spotted– forgive me– a
Japanese sniper aiming at him, taking direct aim. He kneeled down as he drove, put
his hand on the steering wheel, bent down, couldn’t
see anything. Got shot at, but none
of the shots hit him, and he made it through. My dad wasn’t sentimental,
but the nation’s birthday meant everything to him. At ball games, he always stood
up for the national anthem. And when he did that, he
put his hand on his heart. But it was my mother who
told me about Jefferson, and some declaration
he had written. Thank goodness the
holiday was mostly about ice cream and tennis, not
dead people and declarations. But on the day itself, the
old text is everywhere. And back then, as now, I
think, gosh, doesn’t that seem like a prayer? “We hold these truths
to be self-evident, that all men are
created equal, that they are endowed by their creator
with certain unalienable rights, and among these
are life, liberty, and the pursuit of happiness.” Reading the Declaration today,
I, for one, am astounded. It consists of grievances
against the present king of Great Britain, whose
history is one of injuries and usurpations,
having in direct object the establishment of tyranny. It’s articles of impeachment. A flavor? One, he has refused
his assent to laws, the most wholesome and
necessary for the public good. Two, he has made judges
dependent on his will alone. Three, he has
endeavored to prevent the population of these
states, for that purpose, obstructing the laws for
naturalization of foreigners, refusing to pass other
laws to encourage their migrations hither. Like Justice Marshall, the
authors of the declaration really did not like monarchs. A prince, whose
character is marked by every act which
may define a tyrant, is unfit to be the
ruler of a free people. They closed with this
pledge, “and for the support of this declaration, with a
firm reliance on the protection of divine providence,
we mutually pledge to each other our
lives, our fortunes, and our sacred honor.” They acted in accordance
with that pledge. Nine of the 56 signatories
died in battle. That’s a high percentage, yes? Two of them lost their
children in battle. The homes of at least a dozen
were pillaged and burned. On Thanksgiving,
and every other day, Americans have a ton
to be thankful for. The Star Spangled
Banner yet waves. The declaration is going to
celebrate its 250th anniversary before long. We’ve had no tyrants,
in part because of the constitutional design. The document that Madison,
Hamilton, and their colleagues created has been
improved by amendments. But most of their choices are
there, just as they made them. Sure, we could tell tales
of oppression, cruelty, and betrayal. It took us civil war
to abolish slavery. Until 1920, women could
be forbidden from voting. Freedom of speech, amazingly,
didn’t flower until the 1960s. But the hardest won
victories are a product of the American
Revolution itself, a revolution that put a
principle of equal dignity at the center of
national aspirations. By the way, if you want to know
what American exceptionalism is, it’s not what President
Obama says, the capacity for self reinvention. It’s not what the Republican
Party has been saying, which is something
about flag waving. It’s self-government and the
equal dignity of human beings. That’s American exceptionalism. When the revolution
overthrew a king, and when the Constitution
prohibited titles of nobility, they reflected a
set of commitments that continue to ignite fires. Martin Luther King, in defense
of the civil rights revolution, said, “If we are
wrong, the Constitution of the United States is wrong.” More fires are coming. The power of impeachment
provides a unique window onto our republic. In the 18th century or
the 21st, no big country can flourish without
executive authority. Hamilton was right. At the same time, the
executive is by far, as Hamilton’s critics
insisted, the most dangerous of the three branches because
it can do so much for good or for evil in such short time. As the framing
generation saw, there are really close links among
the powerful presidency, the four-year term,
electoral control, and the power of impeachment. You can’t allow the first
without the latter three. Echoing Benjamin
Franklin’s plea, Harvard Law School’s own
Justice Brandeis, attempting– failing, but attempting– to
vindicate the freedom of speech and dissent warned that the
greatest menace to freedom is an inert people. If the American
constitutional system is working well, or well
enough, we, the people, get to cast our votes
and love our families and live our lives. We don’t need to focus on
the impeachment mechanism. But if we’re going
to keep our republic, we do need to know about it. It’s our fail-safe, our sword,
our shield, our ultimate weapon for self-defense. Actually, it’s a
lot more than that. It’s a symbol and a reminder
of who is really in charge and where sovereignty resides. As much as any provision
of our founding document, it announces that Americans
are citizens, not subjects. It connects each and every
citizen, everyone in this room, and your parents, and your
kids, if you have them, and your neighbors. It connects everyone– even if
your parents weren’t born here, even if you weren’t born here– connects you to Concord’s
embattled farmers, and those really tough, inspired days
in the middle and late 1770s when an idea, republicanism,
was literally on the march. Whenever Americans strike a blow
against some form of tyranny– at a law school, in a corporate
office, in a state house, with a letter, or a big
blow through something more dramatic– we are honoring our
nation’s highest ideals and the people who
are willing to live and die for them. Thanks. [APPLAUSE]

Leave a Reply

Your email address will not be published. Required fields are marked *