U.S. Constitution

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The Impeachment of a President


I believe the word “impeachment” may be the least understood word in the lexicon of the average American.  Except in extraordinary times, such as these, the word gets little usage.  This is probably in large part due to its being a word primarily used in legal circles and not in ordinary language.  I therefore offer the definition of “impeachment” as stated by the Merriam Webster Dictionary, on-line version.

  1. “to charge with a crime or misdemeanor specifically : to charge (a public official) before a competent tribunal with misconduct in office”
  2.  “to cast doubt on, especially, to challenge the credibility or validity of . . . a witness”

At the time of the writing of our Constitution, Americans had been forced to live under the “tyranny” of a monach who set rules for his subjects without having any fear of recourse from his subjects.  Our Constitution quite pointedly changed that making an otherwise properly elected or appointed official, the rule below does not strictly apply to the Presidency, to be removed from office.

Article 2, Section 4, reads, simply: “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.”

That’s all it says, nothing more.  In the on-going hearings involving President Trump, the U.S. House of Representatives acts in the same manner as a grand jury in state government.  It is charged with recommending, or not, that charges be brought forth against a particular person.  In the case now before the Congress, the Judicial Committee acts as the prosecutor.  In the case of the impeachment hearings, the Intelligence Committee first and then the Judiciary Committee, brought forth witness who testified under oath what they knew first hand.  Such first hand information is described as, but not limited to, “I heard,” “I saw,” “I was told (by the accused or his agent)”, etc.

The Republicans, relying on the general ignorance of the general public, decried the use of secret hearings.  But in common law, such things are quite regular, and in some cases, secret grand juries, are convened and consider what is being offered.  In the end, if a grand jury finds that there is more evidence to support charges being brought than not, their job is simply to advise the prosecutor to bring forth such charges.  In this case the prosecutor, the House Judiciary Committee, has seen fit to recommend bringing forth such charges.  This is a recommendation to the full House of Representatives who vote on having the charges sent to the senate for prosecution.  In this case a simple majority is all that is required.

Those charges are given to the U.S. Senate where a trial is held.  This is the first point where the defendant and his attorney have the opportunity to present their case.  The defense also has a statutory right to all documents collected and considered by the grand jury, in this case the House Committees.

The Senate President receives the charges and decides if the case should be heard.  In this case Sen. McConnell has already stated that he will hear the case.  At that point the Chief Justice of the Supreme Court becomes the legal advisor of the proceedings.  He otherwise has no standing.  But the rules for conducting such proceeding in the Senate are largely non-existent.  Senate President, Mitch McConnell, upon receiving the charges, has the power to simply dismiss the charges and there would be no senate trial.  He has said, however, that he will convene a trial.  But then he can expedite the trial.

One possible scenario is that Sen. McConnell has the charges read to the Senate at which point he calls for a vote on each of the charges.  A two thirds majority is required to convict and where Democrats are in the minority to begin with, there is little chance of a conviction.

The problem facing Republican Senators, many of them lawyers and former prosecutors, is they know, despite the railings of their House counterparts, that their is in fact sufficient evident for each of the charges to be brought, particularly the contempt of Congress charge.  Their remedy, and their out, is they want this article of impeachment’s legality to be decided by the U.S. Supreme Court.  Their logic is that since the court is now decidedly conservative, such a charge would be tossed out as having no merit.  But this is not a sure thing.  The U.S. saw this when during the 1930s, President Franklin Roosevelt loaded the court with what he believed to be liberal judges who would rubber stamp his decisions.  He found out otherwise when that court ruled the Civilian Conservation Corps (C.C.C.) to be unconstitutional.

This happened again when Justice David Souter, who was put on the court by Pres. George H. W. Bush, turned out to be a moderate who was as likely to vote with the more liberal part of the court as with the conservative.  Do we have such a justice today?  I don’t know.

The biggest problem facing all but the most conservative Republicans, is they know their is truth to both charges.  If the Intelligence Committee and Judiciary Committee showed nothing else, each showed that Republicans consistently chose to attack the charges rather than defend the President’s actions.  Is that not in and of itself an indictment of the President?

The question at hand is:  If the Democrats knew upon convening the impeachment query that the end result would be the President is not removed, then why proceed?  The answer is simple.  Time and again, the Democrats in this process have used their oath of office, the same oath their Republican colleagues took, which is to uphold the Constitution.  Republics of the 1990s used this very same tact towards Pres. Clinton but find it objectionable when used towards Pres. Trump?  You simply cannot have it both ways.

It is my belief that Republicans do not want a proper trial in the Senate, particularly on the Obstruction of Congress charge, because they know the President’s guilt is clear to anyone who cares to observe.

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The First and Second Amendments of the Constitution


As a student of history, particularly American, I have long considered why ou “Bill of Rights,” the first ten amendments to the U.S. Constitution, are in the order they are in and why they are written as they are.  Most historians agree that the writers of the Constitution, primarily were a small group comprising John Dickinson of Pennsylvania, Thomas Jefferson, and James Madison.  Dickinson did most of the draft writing and conferred with Jefferson and Madison on finer points.  Then it was brought to the Constitutional Convention for further discussion and revision.  A number of “plans” were put forth by various state delegations, one the best known being the “Virginia  Plan.”  What happened most was changing of some wording and elimination of a number of paragraphs.  To be sure, the ratified Constitution was considerably smaller than its original presentation.

The “Bill of Rights” came into being in the first two years of our nation.  They were added because the original document had to have ratification of ten states which would not happen if the words of the Bill of Rights were present.

The first amendment I have found to be particularly curious.  It has two seemingly unrelated parts folded into one amendment.  The first part addresses the establishment of religion.  The leaders of the day had an enormous distaste for a state established religion as had been the law in England.  The idea that any church had so much power within government was simply not acceptable to them.  In America, conversely, the three or four religions that first migrated to the American continent had given way to a multitude of religions.  Those present at the convention themselves came from Presbyters, Unitarians, Congregationalists, Lutherans, Quakers, and a few who were not allied with any particular religion. They realized quickly within their own small group that their own beliefs varied far too greatly to give countenance to any particular sect.  Although not a part of the Convention, Dr. Benjamin Franklin had made it known in the previous years how distasteful he found John Adams’ Puritan ethic.  They were at opposite ends of the religious spectrum even though they were mostly in sync in their political beliefs.  And that is what all the “framers” of the Constitution understood implicitly.  No one could pick any particular belief as the standard for our country.  They decided, perfectly, that to insure a continued an unfettered government that they would make it illegal for the government to favor any and all religious beliefs.  They were fully aware of people who were agnostic who balked at all religions as this had been both Franklin and Jefferson’s belief.

But then they wrote the send portion of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  This was John Adams at his finest.  No colony had suffered more oppression of suppressed rights to speak and write with impunity as Massachusetts had.  In 1768 when the Townshed Acts had been passed they were quite pointed towards Massachusetts.  England considered Massachusetts the greatest the greatest thorn in its side.  Newspapers written by Adams, Hancock and others consistently complained of the treatment by Parliament and the king.  Massachusetts had also gone through a series of public protests some of which ended in the loss of life or imprisonment.  To be fair, other colonies had suffered  similar events but not to the degree Bostonians had.

My only question is, why not make this declaration an amendment of its own?

Now we come to the infamous second amendment.  After the first amendment, no amendment has had more discussion.  The entire Constitution was written in some vague language.  The belief at the time was the Constitution should be a living document that would undergo change as the times called for.  With all due respect to my college professor in grad school, I do not believe the writers were thinking of individuals when this was written.  This is another Adams amendment.  The minutemen of Massachusetts, known as the state militia, had gone through repeated attempts by the British to curb their power.  One of the provisions of the Townshend Acts made it illegal for towns to warehouse stores of guns and gun powder.  Massachusetts towns had organized some years before into what were called “defense committees.”  Once a month the members would gather on the town green or common area to practice and drill with their weapons.  Many, if not most, of those weapons were provided to them by the state.  Contrary to any beliefs held today, those people were largely farmers and merchants who had no interest in hunting.  Gun ownership was of no particular interest to them.

But these same farmers and merchants did understand the need for home defense.  The British soldiers had shown no respect for their lands, their property, or their persons.  That meant these defense committees had a single purpose, to gather as a group, a militia, to protect those rights they staunchly believe in.  But I can assure you, their thought of the day was their remembering how crown had tried, in vain, to dismantle the colonial militia.  And that was the driving force behind the second amendment.  The right of the people (plural) to bear arms meant they could gather as a governmental body to protect themselves against any government that might try to gain control over them.  The thirteen original states were a very weak coalition held together by a piece of paper.  There was a high degree of mistrust between those various states.  It was felt that if each state could raise and support its own militia, that provided a safeguard against any other state trying to intrude on its rights.  They did not trust a central government’s military to protect them thusly.  If their governor controlled their militia they felt much safer

I am not making an argument here for any change in gun laws.  I am simply tired of the NRA, and others, pointing to the second amendment as the guarantee of an individual’s right.  It is not.  I am, in fact, very much in favor of the individual to have a right to gun ownership.  I am also a reasonable person and I believe there needs to be a reasonable amount of rules and regulation that keep those guns only in the hands of responsible and law-abiding citizens.  How do you do that?  I do not have an answer but I do know there is one but please do not point to the second amendment when  you make your argument.  Point to yourself as being a responsible and law-abiding citizen who has earned the right to have certain weapons of choice.

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Are Our Individual Constitutional Rights In Danger?


In a word, yes.  The “Patriot Act” was one of the single greatest assaults on our Constitutional Rights that this country has ever endured.  It seems, however, few people either realize this or believe it.  But history tells us a very different story.

In the late 1920s and early 1930s Germany was nearly bankrupt.  Its economy was in free fall, unemployment was extremely high, and there seemed to be no hope.  Adolph Hitler took advantage of those extreme circumstance to wrest control of a constitutionally based government into a government-run at the whim of an individual political party, the Nazis.  Hitler used fear and prejudices early in role as chancellor of Germany to convince the German people that his draconian measures were necessary for the German economy and for the survival as Germany.  The German people allowed their fears to control them and fave Hitler carte blanch.  It was not long before those who opposed what he was doing to be called unpatriotic and arrested.  Laws were changed to suit his political ambition.  The judicial branch became so compromised that it was rendered impotent.  What happened after that was very predictable.  We know the history from then on but can such things happen in America today?

The degree to which Hitler took things in Germany are unlikely to happen in the U.S. but that does not mean we are immune from treading on similar grounds.  One of the best known portions of the “Patriot Act” was the corruption of our absolute right against unreasonable search and seizure, the 4th Amendment.  What it did was allow certain government agencies the right to search without a warrant, the right to wire-tap without a warrant, and the right to detain people without the ability to retain an attorney or be charged within 24 hours.  Our 5th, 6th, and 7th Amendment rights, the right against self-incrimination, speedy trial, and trial by jury were all compromised.  Americans allowed their fears to control them and so allowed Pres. Bush to put this act in place with very little opposition.  What we should know, it is harder to repeal a law than put one in place.  We need to be extremely judicious and cautious about any law that even gives the appearance of reducing any of our Constitutional rights.

Another very common attack is the one against our first amendment rights, the part that says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  In 1963 a woman named Madeline Murray O’Hare challenged the reading of the Bible in public schools.  I can tell you I personally believed her to be the devil incarnate at the time.  Prayer in school was a tradition.  The furor raised over the issue at the time was immense.  The U.S. Supreme Court ruled that prayer and Bible reading in public schools was unconstitutional.

It took me a long time to get my arms around this but I now see that such separation is absolutely necessary.  One simple question needs to be asked of each person.  Whose prayers or whose Bible would we read and say?  There are hundreds, maybe thousands, of translations to the Bible and just as many different religions.  But just as importantly is the right of an individual to not believe in God and therefore, not be put in a position where someone’s God is forced upon them.  And that is exactly what the writers of the Constitution were thinking when they proposed this amendment.  They knew of the English law requiring the Church of England be part of the government and they did not want that repeated in the U.S.

Section 8 of the constitution states that Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”  That power is being systematically eroded by powerful political action committees.  Various industries in the United States, and abroad, have formed coalitions to prevent or reduce regulation of their business.  These PACs have become so powerful that they know they can sway a Congressional vote to favor them at almost any time.  This is an absolute assault upon us because the government is “of the people” as Abraham Lincoln noted.  Nowhere is there any reference to our government being responsible for the well-being of individual commercial adventures, and yet that is exactly what is happening today.

We need to jealously guard of civil rights and question anyone who even suggests we give up even the smallest portion of any one of them.  We cannot become complacent about protecting them because any freedom lost is doubly hard to regain.