The Framers and Aspirational Tyrants

• In Event: (Re)Evaluating Presidential Power

Abstract

For a country born in revolutionary violence, that is, for a country that fought and killed its way into being, it is astonishing to witness the United States succumb to a growing sense of helplessness as a Trump dictatorship is deemed more and more likely by a growing number of sources. Even those sounding the loudest alarms about our impending peril manifest this strange sense of helplessness. American democracy, it appears, would sooner see itself destroyed than do whatever it takes to eliminate a political actor openly planning to exploit its institutions in order to destroy it. Though long since forgotten, the framers of the country, well-versed in Roman history, knew how to handle would-be tyrants. Thanks to Madison’s notes on the Constitutional Convention, their wisdom is available to us.
As the Convention took up the issue of impeachment, there was no consensus that it would actually become part of the final document. Benjamin Franklin helped put the contentious discussion into perspective and break any possible impasse when he asked: “What was the practice before this in cases where the chief Magistrate rendered himself obnoxious?” Franklin didn’t wait for an answer to his question: “Why recourse was had to assassination.” He did not defend the practice. Nor did he condemn it. If anything, he seemed to take its necessity for granted. But options are subject to change. Thus, Franklin offered what looked to be an irresistible conclusion. “It would be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”
Franklin deemed the turn to violence problematic for two reasons: the magistrate “was not only deprived of his life but of the opportunity of vindicating his character.” Still, he was not squeamish about it. Noticeably, Franklin said, “it [impeachment] would be the best way” to deal with an “obnoxious” president. He did not claim it was the only way, or that it was sufficient by itself, or that it was the only good way to respond. Franklin, then, did not altogether rule out the possibility of assassination, let alone reject the very idea of it as unthinkable. Rather, the presumption informing his contribution to the impeachment debate seemed to be that extralegal violence would continue to be a fact of political life unless the need for it was removed—and maybe not even then.
Alas, Franklin imagined that if impeachment worked properly, there were (only) two possible outcomes: fitting punishment for genuine misconduct or honorable acquittal for an unjust accusation. There is a third possibility, however: let’s call it dishonorable acquittal, namely, the “exoneration” of an executive that should be convicted but is absolved. What, then, if the verdict is rigged in advance, and even announced beforehand, regardless of the evidence? The impeachment process in such a case has failed. If the nature of the charges means the republic is in existential danger, how should it respond to such constitutional subversion? Might it even suggest the necessity, at least on occasion, of extra-Constitutional measures?
At the Convention, Franklin and his fellow framers did not consider an institutional fallback should impeachment fail, an outcome that must have occurred to them. Did they assume the country would simply be stuck with an obnoxious magistrate? Or did Franklin and Randolph assume that either elite actors or the people themselves would step in to correct the failure? Either way, the aporia in the impeachment mechanism suggests that it requires violence to work. Violence, that is, must act as impeachment’s ultimate guarantor, forcing institutional players to take the process seriously and treat it with the respect it deserves. If they fail to do so, they would thereby invite the ultimate sanction. Franklin’s provocation, designed to remove violence from politics, thus presumes its potential exercise as a condition of impeachment’s effectiveness and as a correction for its failure.
This history, however, has been lost to us, which may account for its astonishing absence in public discourse. Given current circumstances, with one political actor promising a tyrannical reign of revenge, many of the details of which have already been outlined, perhaps it’s time to get reacquainted with it in the name, ironically, of democratic reimagining and renovation. Democracy’s future here may depend on it.

Author

• Steven Johnston, University of Utah