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Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment Power

Published online by Cambridge University Press:  08 December 2008

Jeremy D. Bailey
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Abstract

A problem within liberal constitutionalism is determining whether the majority actually consents to its government, and, in particular, to those extraordinary acts that take place in the silence of the law. This paper explores this problem in the U.S. context by presenting Thomas Jefferson's understanding of the impeachment power. Jefferson preferred a theory of impeachment that, like his theory of coordinate review, would allow each department to participate in the impeachment process, because he believed that executive participation would improve the law bringing its own character, or will, to it. As an alternative to the more common political understanding of impeachment, which leans toward legislative exclusivity, and the dominant legal understanding, which tends toward judicial finality, Jefferson's theory offers a way for the people to judge whether a particular act of lawlessness is in the public good.

Type
Research Article
Information
The Review of Politics , Volume 70 , Issue 4 , Fall 2008 , pp. 572 - 594
Copyright
Copyright © University of Notre Dame 2008

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References

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22 Whittington, Constitutional Construction, 20–71. The fifth and sixth articles, respectively, received zero and four votes, confirming that Senate Republicans clearly rejected Randolph's attempt to make an impeachable offense of Chase's procedural errors regarding the application of Virginia law. But a majority of Republicans also believed that Chase's political activities from the bench constituted an impeachable abuse of office. Thus, it is significant for Whittington that the eighth article, which was based on Chase's infamous instructions to a Baltimore jury and far from the position that impeachable offenses must be indictable, gathered the most votes in the Senate: “With his Baltimore charge, Chase had entered the political arena, and the votes against him showed that to the extent that judges entered that domain, they were vulnerable.”

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62 Annals of Congress, 8th Cong., 2nd Sess., 567.

63 Annals of Congress, 8th Cong., 2nd Sess., 587 and 655. Curiously, Randolph supported this argument with the example of Congress's powers under the “necessary and proper” clause.

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