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How high is your constitutional IQ?

Hopefully higher than most of the media’s

January 10, 2019

6:37 PM

10 January 2019

6:37 PM

Europeans generally do a poor job of understanding how the US Constitutional system works.

Just how poor was evident in the coverage of the new Democrat-controlled regime in the US House of Representatives, and all the related stories about Democrats taking over Washington, or taking over ‘the government’.

The British Guardian, for instance, reported the momentous news of something approaching regime change: ‘Democrats reclaim power as Nancy Pelosi elected House speaker;’ ‘This is the Nancy Pelosi moment.’

To read such papers, you’d think Alexandria Ocasio-Cortez is the new Prime Minister. Or perhaps it is Nancy Pelosi. Patiently, one must explain to foreign friends that it’s totally different here. For one thing, our set-up is federal rather than unitary: there is no ‘the government.’

Then the horrible reality dawns. Virtually every error and distortion concerning such matters that we read in (say) the British press can easily be paralleled in US outlets, and some of the worst offenders are Americans

ABC News, who should have known better, proclaimed that ‘Democrats take power as Trump’s hand grows weaker.’

If you don’t understand the US Constitution, it seems, then you must have been following the US media.

It has been US outlets, as much as European, that have paid such rapt attention to the legislative agendas of House Democrats, as if they are on the verge of implementation. Having ‘taken power,’ the Democrats would speedily move to pass whatever legislation they chose to enact. Nancy Pelosi promised that during 2019, they would ‘act boldly and decisively’ to pass new measures for gun control, and most US media reported her promise with little comment. The Washington Post reported as serious news the fact that ‘Ocasio-Cortez wants higher taxes on very rich Americans,’ as if it were only a matter of time before such proposals became reality.

Should the new Congress advance first on sweeping gun control measures, on massive raises in tax rates for the very rich, or should they Go (Very) Big with a trillion-dollar Green New Deal? A bemused observer might respond that the odds of any such legislation going anywhere are precisely nil as long as Republicans retain a solid majority in the Senate, and all legislation has to pass both houses. (It also has to withstand a presidential veto, but that is another story).

Meanwhile, that Republican-controlled Senate will likely spend the next couple of years approving plenty of new conservative judges, and even (conceivably) a new Trump nominee to the Supreme Court. No, it is assuredly not ‘Nancy Pelosi’s Washington’ yet, let alone Alexandria’s.

None of those observations is at all surprising, so why do prominent media – like the New York Times or Washington Post – give any different impression? Mainly, this is a matter of optimism grounded in ideology: we see things not as they are, but as we are. Liberal and progressive journalists want to see certain changes and reforms, and they focus on developments that favor them, without considering the overwhelming obstacles. When reality does intrude, the media give disproportionate attention to frankly nutty schemes to remove those inconvenient stumbling blocks. Over the past few years, witness the various proposals floated to reduce the obstructive power of the Senate or the Supreme Court, or to gut the Electoral College. Each proposal in its way at least acknowledges the existence of those unpleasantly extensive checks and balances specified in the Constitution, and fantasizes that they can be swept away with minimal muss or fuss.

But another possibility does suggest itself, and it is truly frightening. Maybe those liberal commentators and activists genuinely do not know what the Constitution says, or how the system founded on it works? If that sounds far-fetched, let me offer a concrete example, which relates to what should soon be a pressing political issue. In coming months, we will assuredly encounter many discussions of impeachment, and specifically the prospects for impeaching Donald Trump. When you read those accounts, including the opinions of influential politicians, note how few of them have any accurate grasp of what the term impeachment means, or how the process plays out.

Already, impeachment is emerging as a deeply divisive issue within the Democratic party. Progressive activists urge immediate action, while more cautious voices, including Nancy Pelosi herself, favor biding their time until they have access to more concrete evidence of presidential wrongdoing. Either way – whether now or very shortly – the party has a deep and passionate interest in impeaching Trump, and then considering what to do when (not if) he is removed.

The following point is so basic that it is almost embarrassing to present it: of itself, impeaching a president does not necessarily mean removing him, and to suggest otherwise betrays a fundamental ignorance of the concept. In the case of a sitting president, all that impeachment means is that a majority of the House of Representatives votes to inflict that judgment, and once they have so voted, he actually has been impeached. That is totally separate from the process of removal, which is decided by the US Senate. To use an analogy from the criminal justice system, impeachment is like indictment, and the real trial is yet to come. It may or may not lead to conviction.

The Constitution states clearly what that trial entails. It involves a vote by the US Senate, requiring a two-thirds majority for actual removal from office, which was deliberately intended to set an extremely high bar. In modern times, that would mean finding 67 senators voting to remove Trump, so that twenty Republicans would have to support the measure. Given the rigid and bitter divisions between the parties, and the tiny number of potential swing votes on critical issues, that outcome is wildly improbable. In other words, it is all but certain that Trump will be impeached, but it is close to impossible that he will be removed.

The closest likely precedent for a Trump impeachment would be what befell Bill Clinton in 1998-99. Most people who recall those events today would probably say that a Republican Congress tried and failed to impeach that president. That is simply wrong. Clinton was indeed impeached by the House – one of two presidents to suffer that fate so far – but as with his predecessor, Andrew Johnson in 1868, the attempt to convict and remove him failed in the Senate.

In Clinton’s case, he faced well-substantiated charges of perjury and obstruction of justice, but the Senate trial resulted in a 50-50 deadlock, and that meant acquittal. At no point was the magic figure of 67 votes vaguely within the bounds of probability.

So obvious and predictable was this outcome that observers at the time reasonably asked why on earth Republicans wasted time on the effort. Were they simply showboating, in a cynical appeal to their most hard-bitten ideological supporters, or were they sufficiently ill-informed to think that ‘impeachment’ actually meant removal? With the party allegiances reversed, precisely the same questions will apply to the great Trump impeachment efforts of 2019.Why would they even bother?

I offer a basic test of Constitutional IQ: when someone uses the word ‘impeach,’ what do they actually mean?

When the rules of a game are spelled out in great and specific detail, it really pays to familiarize yourselves with them before you begin to play.


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