Jill Lepore is one of our great present-day historians. Her latest book, a one-volume history of the United States called These Truths, is a masterpiece, proving that great history can also be the basis of great writing.
Excellent historians also unearth things we haven't thought about thinking about. In the latest issue of The New Yorker, she wrote a succinct but quirky (because it is, no other word fits) early history of our first impeachment trials. The third such trial, of a Supreme Court justice named Samuel Chase, provided what we've come to expect from impeachment: A stretching of, and challenge to, the Constitution itself. By definition, impeachment means a Constitutional crisis because there's a general feeling that someone has overstepped his boundaries proscribed, or those we thought were proscribed, by it.
But like other impeachments, it also involved a questionable law passed by a shameless, pouting Congress. In 1798, amidst a squabble between the first two major political parties--Federalists and Democratic-Republicans, most commonly known as Republicans--the Alien and Sedition Acts were passed by a Federalist-controlled Congress which had grown tired of Republican attacks on Federalist President John Adams, known for being quite sensitive to any criticism, and their support of the French in the spirit of their own revolution, bloody and counterproductive though it had become. The Sedition Act, in particular, made it unlawful to openly criticize the president, striking at the heart of the First Amendment, then just seven years old.
In those days, Supreme Court justices "rode circuit," or served as district court judges as well. Chase, a fierce defender of Adams, had enforced the Sedition Act against Republican newspaper printers (in those days, objective journalism was largely unheard of), in a exercise of an unfair, repressive law unfairly applied. The act expired the day before the next President, Thomas Jefferson, was inaugurated, but Adams, with a gaggle of last-minute, "midnight" appointments, had saddled Jefferson with a Supreme Court loaded with Federalists (Court-packing, you mean, between great former revolutionaries turned bitter enemies? Who'd-a thunk it? See--it goes back to the start of the republic. Politics, politics....). One of the first things Jefferson did was to send notice to House Republicans that he wanted Chase out of there. Impeach him! he said in so many words in a letter to House leaders.
But for what? "High crimes and misdemeanors" is, of course, the operative phrase by which the House can bring impeachment charges to the Senate. So what high crime or misdemeanor did Chase commit? Being a partisan hack?
Well, yes. This trial would be a nice, neat little way of counteracting one of the, if not the, landmark Supreme Court rulings of all time: Marbury v. Madison. Written by Federalist-appointed Chief Justice John Marshall (by Adams), it established that the Supreme Court has the authority to determine what the Constitution actually means as applied to various situations--the power of judicial review. But a closer look would reveal a loophole in that decision.
Marshall was actually writing on those abovementioned "midnight appointments," which Adams and the Federalists sneaked into the back door at the last possible minute to give a sour grapes nose-wriggling at the Republicans because of the bitterly contested election of 1800, won by Jefferson over Adams, who had been trying to get re-elected. The Republicans gained control of the House and the Senate after the Federalists had enjoyed that advantage from the very moment the present Constitution became the new law of the land. William Marbury, one of those federal court appointees approved by the outgoing Federalist Senate, never did have his certificate processed by Republican Secretary of State James Madison, so he never was allowed to take his position. He sued.
That put Marshall into a precarious position. If he ruled against President Jefferson, it would be criticized as maximum sour grapes. If he ruled against Marbury, he'd be taking the side opposite of the party which gave him his own position. So he went for a process ruling instead of one on the merits: Marbury, he wrote in his majority opinion, should have taken his suit to federal district court first, not the Supreme Court, so he was out of luck. He did not comment on the propriety of Jefferson's attempt at manipulation.
It allowed Marshall to take the backdoor out of the situation: Jefferson still won, but Marshall declared victory in the war if not the battle. By further explaining that the Supreme Court had the power of judicial review, he was telling Jefferson not to try that kind of stuff again, that the Court would allow itself to rise above the political frays and rule according to the law regardless of who had passed or enforced it--"a government of laws, not men," as earlier declared by none other than Jefferson's defeated opponent, Adams. It created, in effect, an independent federal judiciary, at least in concept, and deepened the system of checks and balances which we keep saying we have today.
What the Senate was doing with Justice Chase, though, was in fact challenging that ruling. The Republicans were basically saying that, if Chase should be removed from office, the President had the implicit right to appoint whomever he could get the Senate to approve of--and that justice would be bound to do the President's bidding. So instead of three independent branches, we would have one legislative, one executive, and one which enforced the executive's will by rubber stamp, thus pretty much rendering the legislature pointless. It's the part of the Marbury legacy no one remembers (and that I never realized). It's as if everyone simply accepted the effects of it so we could go on putting the nice diagrams into our textbooks. How often we forget that history is never pre-ordained: People had and have choices and things might have turned out very, very differently.
(If you're thinking that the federal court justices were always appointed for life and thus might be independent of the executive anyhow, you might also consider that at that point in our history, the president could be re-elected endlessly as well, never mind George Washington's so-called establishment of an unofficial two-term limit, broken only by Franklin Roosevelt in 1940. So Supreme Court justices couldn't necessarily outrun a president's term of office. Yet.)
So far more was at stake than an unhappy president dealing with a recalcitrant, ornery justice. The whole system of governance could be turned topsy-turvy if the now Republican-controlled Senate played along with Jefferson's gambit at a power grab. As it was, the House, similarly controlled, impeached Chase. The trial began in February, 1805.
Because Chase was actually a justice and a member of that branch, the Vice-President, as President of the Senate, would have to preside over the Senate for Chase's impeachment trial. That happened to be one Aaron Burr, presently wanted for murder in two states. Whose murder? Why, Alexander Hamilton, whom Burr shot to death in their famous duel the previous year (for which he was never convicted). But Burr was still the duly elected Veep, so he ran the trial and did, says Lepore, a decent job of doing so (Burr was also later tried for treason, demonstrating that, although political success is admirable, being a basically bad guy isn't, and can still catch up with you. Whether that fate will befall 45 is yet to be seen. And Burr got away with that, too.).
The overriding question, though, was: Could a Supreme Court justice be removed for political reasons? What were "high crimes and misdemeanors," anyhow? On a straight party-line vote, Chase was doomed: with 17 states in the Union, Republicans held a 25-9 advantage in the Senate. In fact, two Republican Senators could cross over and vote with the Federalists and Chase could still be removed with a two-thirds majority.
But Chase skated. The closest any vote got on any of the eight articles was 19-15. So a few Republican Senators had second thoughts about a political coup, the system was preserved and we all went on--except for this: 19 Republicans, a majority, did say that a Supreme Court justice could be removed for largely political reasons. "High crimes and misdemeanors," applied here, meant nothing about legality or the rule of law but everything about political attitudes, changeable at a moment's notice, with far too many adherents to be ignored or easily dismissed.
It's like the film Risky Business, where Tom Cruise's character manages against incredible odds and breaking all kinds of rules and norms to return his parents' really cool sports car that he originally ruined before they return from a weekend jaunt, never mind how he did it and who he had to deal with to get it. The surface realm returns to normal, but a brand new normal it is. It gives the impression that all have acted with great dignity, but in fact very few have, and certainly not enough to establish a decent ethical boundary. The character's parents, ever so trustworthy and proud of their little monster, won't think of challenging what looks to be an unfettered home life.
And the next morning, you don't see what he's now thinking: I got away with it. Think he won't try it again?
So it will be with the current fiasco. 45 won't be convicted on impeachment charges, that's clear. It's not even obvious that the Republicans will suffer politically because of it. From the time of Jefferson's first inauguration through Andrew Jackson's 1828 election, the Republicans surged to nearly complete control of national politics--in fact, James Monroe's presidency (1817-25) came to be known as the Era of Good Feelings because the Federalist Party had basically disappeared by then. So the Republicans didn't really get the political backlash they deserved. In fact, they thrived from it.
In the meantime, 45's legal weasels will stop at nothing to twist his efforts to wriggle out of his awful acts and illegalities. Here's one that I think they'll try, and if they do, they'll be at the eleventh hour with nowhere else to go: They will claim that, since John Marshall alone merely proclaimed the Supreme Court's power of judicial review without challenge and the Republicans of 1805 basically snubbed their nose at judicial review, winning the point but losing on a technicality, so can they. That means that after 45 tries to take impeachment to the Supreme Court and will be found wanting, he will claim that the Supreme Court isn't actually supreme but just that one guy claimed it to be so, winning a political conflict, which is really what this is all about, now isn't it?
Which would mean that the Supreme Court's legitimacy--and that of other, lower courts--would be called into question, and once questioned, then disrespected by at least 38 percent of our body politic (see earlier blog). But then, Jackson himself also did that when he forced Native tribes to be removed several hundred miles west (the infamous Trail of Tears), defying the Court to enforce the ruling it had made that that abomination was in fact unconstitutional. So there's a precedent for that, too. And he got away with it.
This is very risky business. The legitimacy of our courts represents respect for laws fairly made by majorities fairly elected; the essence of democracy itself. 45 wants nothing to do with either. Yet here we are hurtling toward that moment. Where this all goes no one can yet know. In The New Yorker, Jill Lepore took pains to observe, "To believe that Presidents can do anything they like is to give up on self-government." Meanwhile, the showdown builds.
Be well. Be careful. I'll see you down the road.
Mister Mark
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