BY JOHN SHAFFER Those of us of a certain age might recall the last time a US President faced impeachment. It was back in 1998, when President Bill Clinton’s impeachment was being considered by the US House of Representatives, and many of President Clinton’s fellow Democrats did not like it. Rep. Patrick Kennedy termed it “a political lynching.” Rep. Charles Rangel decried the House’s “lynch-mob mentality.” Sen. Joe Biden called it “a partisan lynching.” Rep. Jerrold Nadler called the House’s action a “lynch mob” on multiple occasions. Rep. Danny Davis and Rep. Gregory Meeks both used the term “lynching” to describe President Clinton’s impeachment. Rep. Jim McDermott said, “We are taking a step down the road to becoming a political lynch mob. Find a rope, find the tree, and ask a bunch of questions later.” Rep. John Conyers, Rep. Nadler, Rep. Eliot Engel, and Rep. Maxine Walters went a bit further, calling it a “political coup d’etat.” Well, that’s just some of the Members of Congress who used the term “lynching” back in 1998, and since the American voter still has not seen fit to employ term limits, many of those folks are still in Congress today, and, you guessed it, many of those folks had a conniption when President Trump said this last week, “So some day, if a Democrat becomes President and the Republicans win the House, even by a tiny margin, they can impeach the President, without due process or fairness or any legal rights. All Republicans must remember what they are witnessing here – a lynching. But we will WIN.”
BY JOHN SHAFFER This week we end our series on the Bill of Rights, inspired by Rep. James Clyburn’s concern that the Bill of Rights would not be ratified if offered today.
The Ninth and the Tenth Amendments are related and are two of the least known today and, sad to say, are more often honored in the breach than in the observance. The Ninth: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth is cut from the same cloth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” A bit of legislative history can explain these amendments. It seems that one reason why a Bill of Rights was not included in the original Constitution was because the Founders honestly feared that a listing of those things that Congress may not do (which effectively is what the Bill of Rights does) would be necessarily incomplete, and perhaps those of a certain mind would contend that anything that was not listed was somehow fair game for legislation or would be an excuse to extend the power of the federal government. James Wilson, a signer of both the Declaration of Independence and the Constitution, and who later served on the US Supreme Court, said, “If we attempt an enumeration, everything that is not enumerated is presumed to be given. . . . an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete.” Alexander Hamilton wrote, “a Bill of Rights would contain various exceptions to powers which are not granted” which would “afford a . . . pretext to claim more than were granted.” James Madison acknowledged “by enumerating certain exceptions to the grant of power it would disparage those rights which are not placed in that enumeration, and it might follow. . . that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.” BY JOHN SHAFFER After a week’s break we will resume our tour through the Bill of Rights. We undertook this series in response to Congressman James Clyburn’s fear that the Bill of Rights might not be approved if proposed for ratification today.
The Sixth Amendment is the lengthiest of the original Ten: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” One reason why it is so lengthy is that it is so important. Most of the clauses in this amendment were long-standing pillars of English law, and the Founders naturally wanted them continued under the Bill of Rights. It was a tenet of English law for the accused to have a timely hearing, and the Founders made sure that such provision was protected under the Constitution. After all, without this guarantee, a defendant could be jailed for an inordinately lengthy period prior to his trial, a condition that has prevailed in many dictatorships and authoritarian countries as an easy way to keep opponents out of circulation without actually bringing them to trial. The public trail provision of this Amendment is to assure that defendants are not tried in secret courts but in open, public courts. This is another protection against unfair legal proceedings, and public trials also help to prevent untruthful testimony – as is often said, “sunshine is a good disinfectant.” BY JOHN SHAFFER We will begin by asking some questions. Why is it acceptable for “Administration A” to use pressure to compel a foreign government to terminate an investigation that would prove very embarrassing to the Vice-President in that Administration; but it is an impeachable offense if “Administration B” asks that foreign government to reopen the investigation?
Furthermore, why is it OK for “Candidate A” to pay Ukrainian and/or Russian sources for fictitious, false, and malicious information against her opponent, the candidate who eventually would form “Administration B,” yet is is an impeachable offense for “Administration B” to inquire for true information from a foreign government? The furor had its origins in Presidential candidate Joe Biden’s boast that he had threatened to withhold $1 billion in loan guarantees to Ukraine unless they fired the prosecutor who happened to be conducting an investigation of corruption in that government, and so was sniffing around some deals that had netted some major cash benefits to Mr. Biden’s son’s company. This did not please Mr. Biden, who happened to be Vice-President at the time, so he threatened to withhold said loan guarantee. Sure enough, his threat had the desired effect. Let’s be clear: it was not “alleged” or “claimed” or “reported” that Mr. Biden did this – no, he revealed it, he bragged about, he was proud of it. This apparently stimulated President Trump’s interest in the matter. BY JOHN SHAFFER As you will remember, this series of columns was inspired by Congressman James Clyburn, who was quoted as saying that, if proposed today, the Bill of Rights might not be ratified.
We resume our review of the Bill of Rights with the Third Amendment: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner prescribed by law.” This amendment recalled the practice of the British, which quartered soldiers in homes during the French and Indian War, and again in Boston in 1774. Six of the original 13 states also banned quartering of soldiers, and some of the Anti-Federalists insisted this amendment be included in the Bill of Rights, likely as a means to restrain the newly-formed central government and to establish the primacy of individual rights. If this amendment were not to be ratified now, it would be because of its irrelevancy, because today, there is no need to quarter soldiers in private homes, and no one wants to do so. Its significance is that it limits the power of the central government, as do all of the original ten amendments (the Bill of Rights) . |
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