American Constitutionalism in Historical Perspective (packet)

The Rule of Law and Control of Executive Power (Impeachment) (packet, pp. 214-233, 54)

1. 
   Structure:
   
   1. 
      Mutual interlocking accountability harnesses politics and makes the ppl more secure. (Locke).
      
   2. 
      Every official of fed govt must be accountable under law. Keeps decency in politics. (cf. Hitler).
      
   3. 
      No legislation by executive decree.
      
   4. 
      Have other parties, neutral judiciary
      
   5. 
      Keep legality and get rid of principle of analogy.
      
   6. 
      No gov’t by secret decree (holocaust never publicized in Germany)
      
   7. 
      Preserve formal justice and expel substantive justice w/ no equality
      
   8. 
      Give each branch adequate powers to protect its own turf and to keep the others in line, reduces faction through political incentives. (Madison).
      
2. 
   US separation of powers
   
   1. 
      Ineligibility clause-no member of the exec or judicial branch may be in any other branch of gov’t. Contrast w/ Britain-members of Cabinet sit in Parliament
      
   2. 
      Prohibition on bills of attainder-Congress has no judicial powers at all except for impeachment. Contrast w/ Britain-mixing btw Parliament and House of Lords. Madison says we’ve carried British idea of sep. of powers even further, and we’ve done 2 things they never did-absolute separation of personnel and functional differences: legislative, executive, and judicial.
      
3. 
   Impeachment Power: makes exec equal to the ppl. Check on the Pres. b/c he has war powers, d/n want country to become a militaristic state. Careful not to undermine Pres. independence if used as no confidence vote--d/n want congress to nullify a vote of all of the people. Mostly done w/ fed judges not Pres. Ex: Nixon impeachment (resigned to stop impeachmt), Clinton impeachment (came close)
   
   1. 
      Art. I, sec. 2[5]: “The House of Representatives shall … have the sole power of impeachment.”
      
   2. 
      Art. I, sec. 3[6]: “The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the US is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.”
      
   3. 
      Art. I, sec. 3[7]: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the US: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.”
      
   4. 
      Art. II, sec. 4: “The President, Vice President and all civil Officers of the US, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
      

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