Chicago-Kent Law Review

Volume 95 Issue 2 Impeachment and the President Article 4

1-26-2021

Impeachment as a ‘Madisonian Device’ Reconsidered

Amanda Hollis-Brusky Pomona College

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Recommended Citation Amanda Hollis-Brusky, Impeachment as a ‘Madisonian Device’ Reconsidered, 95 Chi.-Kent L. Rev. 497 (2021). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol95/iss2/4

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 42699-ckt_95-2 Sheet No. 27 Side A 11/23/2020 10:40:39 r RUSKY -B 497 497 OLLIS ) 10/18/2020) 3:30 PM BSTRACT H A ELETE D OT N O RECONSIDERED MANDA A 1 FINAL (D ACRO M IMPEACHMENT AS A ‘MADISONIAN DEVICE’ RUSKY RUSKY B OLLIS H In this article, Professor Hollis-Brusky revisits the claim, first advanced advanced first claim, the revisits Hollis-Brusky Professor article, In this a serves stills impeachment that agrees Hollis-Brusky Professor While Associate Professor of Politics at Pomona College. College. at Pomona of Politics Professor Associate in a 1999 Duke University Law Review article by Professor Jonathan Turley, Turley, Jonathan by Professor Review article Law University in a 1999 Duke as is, that Device”; a “Madisonian as understood best is impeachment that and pressures interests factional for that allows process political a valuable Fed- on Madison’s Drawing system. constitutional our within resolved to be trial Senate the of importance the for argued Turley No. 10, Professor eralist of a set through pressures factional channeling of as a means in particular legit- lending view, public the enlarge and refine would who representatives Turley Professor way, In this governance. democratic of our system imacy to re- the simply than purpose broader a much serves impeachment argued, crimes “high defined narrowly legalistic, of set a for a President of moval and misdemeanors.” such forces that argues she system, Madisonian our within purpose broader news,” and of “fake advent the tribalism, party polarization, as political of the value of analysis Turley’s Professor challenged have media partisan as trial Senate of the and valve release pressure factional a as impeachment Pro- Instead, legitimacy-building. and democracy for deliberative a forum in light understood be should that impeachment argues Hollis-Brusky fessor be should that precaution” “auxiliary an No 51—as Federalist of Madison’s our in available control” the “primary fortify and to strengthen deployed power. and trust of public and abuses actors bad against to protect system process— electoral the is Madison, to according control,” That “primary po- comparative from draws Hollis-Brusky Professor elections. and voting Mad- a distinctly serves impeachment Trump the that to show science litical with when coupled and, process democratic the fortifying by function isonian sys- for our political reboot” a “hard provide could elections, the upcoming tem. r 42699-ckt_95-2 Sheet No. 27 Side A 11/23/2020 10:40:39 A 11/23/2020 27 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 27 Side B 11/23/2020 10:40:39 4 . Senate Trials [Vol 95:2 [Vol Reflections on Murder, Misdemeanors, Misdemeanors, Murder, on Reflections our constitutional system. , 116th Cong. (2019) (written testimony of of testimony (written (2019) Cong. , 116th 1 vital process for resolving fac- ent as a Madisonian Device into our constitutional design to ) 10/18/2020) 3:30 PM o, Professor Turley outlines a broad ELETE Senate Trials and Factional Disputes: Impeachment as a a as Impeachment Disputes: Factional and Trials Senate NTRODUCTION D I precautions. Indeed, of the five law review articles OT 2 N O . 439,439 (1999)). . 51, at 319 (James Madison) (Clinton Rossiter ed., 2003). 2003). ed., Rossiter (Clinton Madison) (James 319 at . 51, CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT EV O N L.J.1 Turley, Jonathan and (1999) L.J. 1 (1999). 1 (1999). L.J. L. R 1 FINAL (D Senate Trials and Factional Disputes: Impeachment as a Madi- as Impeachment Factional Disputes: and Senate Trials UKE UKE ACRO impeaching Trump—Turley characterizes himself M EDERALIST OFSTRA , 49 D F , 49 D HE HE RUSKY RUSKY One of these One interest here, as articles is of particular 3 B T , 28 H .2 n.3 at (citing JonathanTurley, against Id See The Impeachment InquiryPresident into DonaldJ. Trump: Constitutional Grounds for See OLLIS ernment; but experience has taught mankind the necessity of auxiliary auxiliary of necessity the mankind taught has experience but ernment; 498 498 H In thisIn 1999 law review article, James Madison’s Federalist On 4,On December 2019 Professor Jonathan Turley appeared be- A dependence on the people is, no doubt, the primary control on the gov- on the control the primary no doubt, people is, the on A dependence Professor Jonathan Turley) (“I have spent decades writing about impeachment and presidential powers powers presidential and impeachment about writing decades spent have (“I Turley) Jonathan Professor Madisonian a of bias the reflects work academic My commentator. legal a as and academic an as scholar.”). 3. 2. 2. Judiciary the on Comm. H. Before Impeachment Presidential 1. 1. Turley, Jonathan Device Madisonian Madison and 4. Device sonian In summary, ProfessorIn Turley that the impeachment argues process is but one of many elements built process, diffuse, and refine the pressures of opposing “factions” in our democracy. the In context of his argument, Professor Turley emphasizes the value of the Senate trial as a mechanism of delib- erative democracy designed to refine and enlarge the factional pressures and views of the masses in a way that results in increased s doing legitimacy. In systemic understanding of impeachment as a tional divides and pressures, rather than a narrow way to hold publican Party in the impeachment hearings against Donald Trump. page On two of his fifty-three page testimony—inwritten which he argues as a “Madisonian scholar.” Turley references in his testimony as evidence of his decades-long research on impeachment, two have “Madison” or “Madisonian” in the title. Turley’s impeachment testimony relied heavily on it: and Factional Disputes: Impeachm No. 10 as emerges the Rosetta Stone of Professor Turley’s under- standing of the overarching purpose of fore the House Judiciary as the lone Committee the for witness Re- 42699-ckt_95-2 Sheet No. 27 Side B 11/23/2020 10:40:39 B 11/23/2020 27 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 28 Side A 11/23/2020 10:40:39 1999 article provides provides article IRCA C 499 499 EVICE D levels of trust in infor- ation of media has led to d beunderstood as “Madi- a w these developments challenge w these developments challenge ) 10/18/2020) 3:30 PM ADISONIAN ADISONIAN derstood as a “Madisonian device,” M ELETE D OT Duke University Law Review Law University Duke N O 1 FINAL (D A.Impeachment as a Madisonian Device Device Madisonian a as A.Impeachment IMPEACHMENT AS A ‘MADISONIAN DEVICE’ A ‘MADISONIAN AS IMPEACHMENT ACRO M MPEACHMENTA AS I.I RUSKY RUSKY B OLLIS 2020] 2020] H That being said, I argue in Part III of this article that impeach- Over the past two decades, a series of forcespowerful have Professor Turley’s 1999 Turley’s Professor but with a differentin general— impeachments to show that science political comparative emphasis.porary contem- and history American draw on I an “auxil- as be understood in particular—can impeachment and the Trump what and fortifying of strengthening in service deployed iary precaution” and abuses of power actors on bad check” as the “primary described Madison other In process. democratic the and system—voting constitutional in our Fed- Madison’s of instead No. 51 Federalist Madison’s center if we words, consti- our from principle core different slightly a extract No. 10, we eralist the principle, Madisonian this against measured As architecture. tutional still should and meaning and value holds still Trump Donald of impeachment device.” “Madisonian a as understood be properly These forces, as I describe in Part II, include, first, increasing po- of litical polarization partisans in government and in the electorate, has ledwhich to party tribalismand party loyalty at all costs. Sec- ond, the democratization and fragment partisan and polarized decreasingmedia, mation (“fake news”), and the ability to discredit and destabilize expertise and testimony. showI ho pres- a factional as impeachment of value of the analysis Turley’s Professor democ- deliberative for forum a as trial Senate the of and valve release sure racy and legitimacy-building. ment can and should still be un officers to officers account for definedlegalistically “crimes.” Part I of reviewsthis article Professor Turley’s argument in greater detail for how and why impeachment shoul sonian device” and the of his analysisimplications for what rises to the threshold of impeachable conduct. combined to undermine the efficacy of the Madisonian system Pro- fessor Turleyin centers his analysis—a system predicated on the ability to channel, diffuse, and the “mischiefs mitigate of faction.” a lengthy and detailed history of impeachment hearings and Senate trials, trials, Senate and hearings impeachment of history detailed and a lengthy the all periods and colonial English early the from impeachments reviewing 42699-ckt_95-2 Sheet No. 28 Side A 11/23/2020 10:40:39 A 11/23/2020 28 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 28 Side B 11/23/2020 10:40:39 In the law 6 11 [Vol 95:2 [Vol 10 Interestingly, much of this this of much Interestingly, 5 , 116th Cong. (2019) (written testimony of of testimony (written (2019) Cong. , 116th 8 ) 10/18/2020) 3:30 PM 7 ELETE D OT N O ,anony- was written No. 10 Federalist Madison’s CHICAGO-KENT LAW REVIEW LAW CHICAGO-KENT No. 10, at 71–79 (James Madison) (Clinton Rossiter ed., 1999). 1999). ed., Rossiter (Clinton Madison) (James 71–79 10, at No. 1 FINAL (D ACRO M EDERALIST F HE RUSKY RUSKY B T at 76. 76. at at 73. 73. at at 72. 72. at at 110. at 110. See The Impeachment InquiryintoPresident DonaldJ. Trump: Constitutional Grounds for Id. Id. Id. Id. Id. See Factions, as Madison explains, tend to wreak havoc on democracies, on democracies, havoc to wreak tend explains, Madison as Factions, OLLIS 9 500 500 H Like the other essays that collectively comprise what we now refer to to we now refer what comprise collectively that essays other Like the Essentially, Madison argues, this is done in three ways: (1) by dividing dividing by (1) ways: three in done is this argues, Madison Essentially, Madison defines a “faction” as “a number of citizens, whether amount- whether of citizens, number as “a a “faction” defines Madison The Federalist Papers The Federalist 11. 11. in the nature of man” and cannot be removed without extinguishing individ- extinguishing without removed be and cannot man” of in the nature on instead focus would republic constitutional the new thought, of uality factions. of the effects redirecting and controlling 8. 8. 9. 10. as power vertically and horizontally to make it difficult for a single majority majority a single for difficult it make to horizontally and power vertically existence the encouraging by (2) representation; and power gain to faction alle- of factional fluidity to promote groups or interest of of factions lots es- representatives, electing by (3) and coalitions; cross-cutting and giances views the factional and enlarge” would “refine who Senate, the in pecially masses. democratic deliberate less passionate, more of the history appeared in Professor Turley’s written testimony for the House Judi- the House for testimony written Turley’s in Professor appeared history Trump. Donald of hearings impeachment the in Committee ciary review article, unlike in his most recent congressional testimony, these epi- these testimony, congressional recent most in his unlike article, review of lens the through analyzed and digested, processed, then all are sodes No. 10. Federalist Madison’s James 6. 6. 5. 5. ing to a majority or a minority of the whole, who are united and actuated by by and actuated united are whole, who the of minority or a a majority ing to of rights to the adverse interest, or of passion, of impulse common some commu- the of interests aggregate and permanent the to or citizens, other nity.” way through the Clinton impeachment hearings. impeachment the Clinton through way especially when there are large, permanent factions that seek to oppress and and to oppress seek that factions permanent large, are there when especially ob- Madison Because, factions. minority of opportunities political limit “sown of conscience—are freedom and faction—liberty of causes the serves, Presidential Impeachment Before H. Comm. on the Judiciary the on Comm. H. Before Impeachment Presidential 7. Professor Jonathan Turley). 7. mously in 1787 under the pseudonym, “Publius,” in the hopes of persuading persuading of hopes the in “Publius,” pseudonym, the under 1787 in mously Feder- a nutshell, In new Constitution. York to adopt the New of the people upon improves design constitutional revised how the explains No. 10 alist Madi- to what vulnerable were that government of democratic models older of faction.” the “mischiefs son termed 42699-ckt_95-2 Sheet No. 28 Side B 11/23/2020 10:40:39 B 11/23/2020 28 Side Sheet No. 42699-ckt_95-2 42699-ckt_95-2 Sheet No. 29 Side A 11/23/2020 10:40:39 . UB , 38 , 38 . 734, EV , 6 J. P .R CI .S OL .P However, Pro- However, M 13 . art. I, § 3, cl. 6-7 (“The (“The 6-7 cl. § 3, I, . art. 501 501 , 77 A 105–12 (1st ed.1956); Rob- ONST HEORY T note 4, at 4. 4. 4, at note onal disputes gives the system the system gives onal disputes supra Tyrannyand Democracy: Reflectionson Some , EMOCRATIC 486 (2008). D 12 ) 10/18/2020) 3:30 PM disputes unaddressed would create in- would unaddressed disputes Pluralismand Social Choice ELETE D PPOSITION OT REFACE TO REFACE O N O The American Idea of Equality: The View from the Founding , A P AHL 587 (1995); Ian Shapiro, Shapiro, Ian (1995); 587 1 FINAL (D A. D IMPEACHMENT AS A ‘MADISONIAN DEVICE’ A ‘MADISONIAN AS IMPEACHMENT Madison on the Beneficial Effects of Interest Groups: What Was Left Unsaid in in Unsaid Left Was What Groups: of Interest Effects Beneficial the on Madison OVERNMENT AND ACRO OLITY . art. I, § 2, cl. 5 (“The House of Representatives shall choose their Speaker and and Speaker their choose shall . Representatives of House (“The 5 cl. 2, § I, art. M OBERT , R Impeachment as a Madisonian Device Madisonian a as Impeachment , 43 , 43 G ONST , 27 , 27 P RUSKY RUSKY B Decision-Making in Democracy:a Supreme The Courtas a National Policy-maker . art. § II, 4 (“The President, Vice Presidentandall civil Officers of the United States, shall See, e.g. See, . 313, 329 (1976); Nicholas R. Miller, Miller, R. Nicholas (1976); 329 313, . OLLIS 2020] 2020] H Professor Turley argues that if we situate the impeachment power power impeachment the situate if we that argues Turley Professor OL Professor Turley is not the first scholar to emphasize the centrality of of centrality the emphasize to scholar first the not is Turley Professor Professor Turley summarizes how these three elements built into the the into built elements three these how summarizes Turley Professor ONST 14 the ability to withstand crushing pressures duringenormous periods of so- turmoil. cial, political, and economic trigue and instabilitypolitical within system. a For that reason, the Madi- factional to transform but to suppress,