Letter to the editor: constitutional silences and impeachment

The writers of the Constitution are deservedly praised for their choice of words in a document that created a durable, if somewhat flawed, government. But rarely are these Founders praised for their silences: for those parts of the Constitution that left some questions to be decided by time and circumstance.

One of those wise silences involves an issue currently before the public: the process to be followed by the House of Representatives for the impeachment of a president. While Article II tells us a president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” the Founders left it to a majority of the House to decide for themselves how to decide that question as part of their “sole Power of Impeachment.” The hearings taking place currently are not yet the impeachment. The committees that are investigating and gathering evidence could yet decide there is not enough evidence to proceed to formal impeachment.

The House has been through the impeachment process only three times in relation to the presidency: the impeachments of Andrew Johnson and Bill Clinton, as well as the aborted impeachment of Richard Nixon, which ended when Nixon resigned. Thanks to the silence of the Constitution, in each case, the House majority was left free to decide for themselves what the best process would be for making this difficult decision.

The House, and the country, will have to ponder the highly debatable questions of what “high Crimes and Misdemeanors” mean and whether we are convinced, based on the evidence, that President Trump committed such an act and should be tried by the Senate. On those questions, reasonable people can and will differ.

But as a historian and a political scientist, we are disturbed by the claim being made by Republican defenders of the president that the process chosen by the majority in the House is somehow illegitimate, or, worse, “unconstitutional.” To pretend there is a specific process recommended in the Constitution, or that the decision by the House majority to proceed with an impeachment inquiry is somehow “unconstitutional” if it is not preceded by a full vote by the House, is a torturing of history and a distortion of the traditions of the House of Representatives.

The Founders knew each generation would have to decide for itself how to proceed on these questions. Their wise decision to be silent on those details meant that impeachment could follow the process each House majority thought best. A careful weighing of the evidence, with our reflection on what we believe to be an impeachable offense, means we respect what the Founders had in mind. Avoiding those questions by misreading their wise decision to leave it to future House majorities to choose a process for doing so fails to demonstrate that respect. The House rules that sanction the current hearings were voted on in 2015, when Republicans were in control.

We hope all members of the FSU community, regardless of political affiliation, will make an effort to ignore the rhetoric of both parties that is swirling in today’s news and social media to form an opinion based on the evidence presented in the hearings.

Sincerely,

Jon Huibregtse, history professor, and David Smailes, political science professor

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