CONCLUSION

Some commentators about impeachment offer an over-arching theory or definition of what constitutes high crimes and misdemeanors. I have not attempted that here because I do not believe it is possible. For example, almost everyone agrees that a president who commits murder must be removed from office even if the act occurred in a private setting unrelated to his official responsibilities. Virtually everyone would also agree that a private offense of little consequence, such as a traffic violation, could not possibly be impeachable. But where does one draw the line separating the two sets of cases? Armed robbery? Simple assault? Passing a bad check?

Every potential impeachment case must be considered in all its particulars. Still, we are fortunate to have guidance both from the founders and from three presidential impeachment episodes spread across 130 years. While these cases do not yield a tidy theory of what constitutes an impeachable offense, they do help us derive generally valid lessons for approaching each case. These lessons prove useful whenever removing the president is contemplated, and in the previous chapter I have tried to apply those lessons to the various prospective charges against President Trump.

I shall close by pulling back from the present situation and seeking to regain a glimpse of the big picture.

The Declaration of Independence did more than assert the birth of a nation. It justified breaking away from Great Britain, and made a permanent statement of profound importance. We tend to focus on the first sentence of the second paragraph: “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, that among these are life, liberty and the pursuit of happiness.” But the next two sentences are equally key: “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed — That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government.”

In other words, in order to protect individual rights to life, liberty, and the pursuit of happiness, the People also retain an inalienable right to act collectively to “alter or to abolish” and recompose our government. Note that altering and abolishing are not the same thing, and that the ability to alter our government avoids the need for revolution (or abolishing our government). We can think of impeachment as a means of alteration—a change at the top without the normal process of election.

Thomas Jefferson and his fellow founders did not intend their sentiment about altering and abolishing government as rhetorical fluff. Rather, they justified the colonial rebellion by virtue of “popular sovereignty”—the People own the government. This idea finds further expression in the opening line of the Constitution: “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.”

The Declaration of Independence and the Preamble to the Constitution worked in tandem. The People announced and exercised their rights to break free of an oppressor and to establish their own government. Both documents imply that We the People today—women and men of all stripes—collectively retain the sovereign right to do so again if circumstances require.

The Declaration of Independence set forth the many abuses we suffered at the hands of the British Crown. In the future, it could be a different set of circumstances that would compel the People to alter or abolish their own government. We may do so, in the words of the Declaration, “whenever any form of government becomes destructive of these ends”—that is, whenever the government denies our inalienable rights or forfeits its legitimacy. Alexander Hamilton expressed this collective right even more broadly in Federalist 78, citing “that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness.”¹

Any sentiment that united Thomas Jefferson and Alexander Hamilton, adversaries with fundamentally different visions, should make us sit up and take notice. But it is not surprising that Jefferson and Hamilton agreed on what was literally the first principle of the United States of America: The People employ the government, and therefore may change the government.

In making this point repeatedly (in the Declaration, the Constitution, and The Federalist), the founders were not advocating frequent resort to revolution. Again, they championed the right to alter or abolish the government, and alterations involve less than regime change. The Constitution explicitly provides means for alteration, especially Article V’s provision for amendment. The availability of such peaceful means of changing our governing charter ensured that we would turn to full-scale revolution only as a very last resort. As noted, impeachment offers another path for alteration.

At the conclusion of the Constitutional Convention in Philadelphia in 1787, someone asked Benjamin Franklin what form of government the delegates had produced, and Franklin is said to have replied, “A Republic, Sir, if you can keep it.”² Maintaining our democratic republic requires alterations from time to time. It also requires vigilance. The Constitution placed impediments in the way of would-be tyrants, but keeping our republic is a permanent project. The founders gave us a workable form of self-government, and the tools to preserve it, but unless we use those tools well and wisely, it will all be for naught.

Impeachment is a crucial tool when it comes to protecting our democracy. Let us use it well and wisely.