History Doesn't Impeach, Only Congress Can

One of the more ridiculous utterances coming from the mouths of Democrats who refuse to defend the Constitution and hold the Bush administration accountable is that "History will impeach George Bush" so they won't have to. Vermont's Peter Welch has trotted out this phrase, but if he would take a moment to read some history, he would understand that he has it exactly backwards.

Louis Fisher, citing the 1803 case of Stuart v. Laird in his American Constitutional Law states: "The boundaries between the three branches of government are also strongly affected by the role of custom and acquiescence. When one branch engages in a certain practice and the other branches acquiesce, the practice gains legitimacy and can fix the meaning of the Constitution."

In a 1952 ruling, the U.S. Supreme Court declared unconstitutional President Truman's attempt to take national control of steel mills in order to avert a strike. When they wrote their opinions, the justices took pains to explain how they came to their decisions. And one factor which figured prominently was whether the Congress had taken action to counter the President, or if they had acquiesced and allowed a precedent to be set.

Justice Jackson, in his opinion concurring with the majority put it this way: Therefore congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

Justice Frankfurter also addressed this issue in the same ruling: The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a
text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by [sec.] 1 of Art. II.

Frankfurter also saw fit to include this warning: The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.

Not only are Welch and his fellow travelers ignoring the Bush administration's crimes and constitutional over-reaching, they are establishing a precedent of acquiescence that will make it even harder for a future Congress with backbone (should that ever occur) to hold the next runaway executive branch to account.

We are facing a severe perversion of our democracy. The Republicans have criminalized the executive branch. The Democrats, rather than fighting to protect the Constitution (or represent the will of the nation in ending the Iraq occupation), are willing actors in the drama that is unfolding. Regaining power matters above all else. And they have cynically decided that the best way to achieve power is to ride the disintegration of the Bush administration to the bitter end, reaping the political benefits and ignoring the "collateral damage" of lives and constitutional damage that the next 17 months will bring.

History will judge, not impeach. And the Congress, as well as the president will be condemned for leading the country down such a disastrous and dishonorable path.

What will history have to say about the American people? Will we too be condemned for our inaction? Or will we take action now and be the only bright footnote in this dismal narrative?

Comments

[accountability]

PS.
Very good Post Dan.
Great Points and right on target with the real issue.
It isn't about punishing mr.bush, and his cabal (though that is a nice side benefit) It is about not allowing dangerous precedents to be set, about protecting the Constitution, Freedom, Democracy, and upholding the Rule of Law with a capital "L."

[accountability]

I know someone who believes there should be an impeachment once a generation just to scare the hell out of everyone and keep them in line.
Too bad Repub's had to blow it with Clinton.
(no pun intended.)
Do we have to wait another generation?
Will there be a Constitution and a Democracy to protect if we do?

I'm at my wit's end. I have no idea what the action to take is.
I don't have money that can influence anyone. (not even the bill collectors on occasion!) I write to everybody. Repeatedly. Every damn one of them. Pelosi, Leahy, Reid, my Rep's and Senators, anyone on any committee that I read about. I even write to the fricking pundits, slamming them when they play softball, or bring up something 5 years too late... and even now and then praising them if they get something right. (gotta play fair.)
I forward every damn petition and informational email I come across or comes across me. I post articles, links, and my diatribes on my livejournal. My f'riends list' ignores me for the most part... though sometimes they just cut me from their lists! LOL

What else can I do, what can we do?
This is not rhetorical. I am freaked about the whole situation, not to mention getting paranoid when I read about outsourcing for everything including spying.
AAACCCKKKK!
My head is going to explode.
So... what do we do?

[Brett Paatsch]

accountability you raise an important point.

Your representatives owe you a response or they are not your representative.

A tool that is missing in the efforts to get accountability is database of letters of reply be they form letters or otherwise.

If somewhere there was a spreadsheet with the names of every Congressional representative linked to their most recent recorded position on the impeachment of Bush then everyone would be able to see where representation was not happening or was not being demanded.

I suspect, based on the silliness I hear reported by Congressional representatives that many of them have not yet felt the need to know what they are talking about with respect to the illegal immoral invasion of Iraq. Their constituents aren't making them be accountable for their oaths.

A database of representatives positions could have attached form letters or emails received from any constituent sent to their representative that lets other constitents know that the Representative is at least turning their mind actively to the issue.

I am not a US citizen. I have no representative and I must work by proxy.

[BigTuna]

I suspect the exact same argument was made, successfully, in the immediate post-Watergate years ("just pardon the guy, Mr. Ford.. no one will ever dare try this again").

And oh boy did that ever work out well for us.

[oldpotsmuggler]

You've got to cut Congress some slack. It's their vacation (or, more correctly, another one). How would you like it if you had to work in August? When it's hot, it's really important to get away for a few weeks from the phone calls of constituents demanding impeachment, withdrawl from Iraq, blah, blah. Demanding, demanding, demanding.

And it's actually working. Maybe it's just the media being out to lunch also but there isn't anything out there on the airwaves these days on impeachment. Things started heating up nicely, and then silence. Weird.

Like that "debate" for the Dems yesterday. There was even a little bit of substance in it (meaning it wasn't all "Are you spiritual?), but no mention of support for impeachment. And not even any no holds barred attacks on Bush/Cheney. Actually it seemed like all of them were at least a bit cavalier about the amount of time ebtween now and Jan., 2009.

[FullChat]

We must Impeach Bush and undo the damage done by him and Gonzales to the Constitution.

If we let them get away with it, then we've set a precedent - and the next lunatic president can use the precedent!

[accountability]

HOW?
I'm asking everybody.
I need some more info on what else to do.
How do we force this issue?
what the hell else can we do?

A strike?
On what?
Shopping?
And if we do, can we get enough of the apathetic to join us?
And if we do and they do, will anyone listen?

What is going to break through the apathy, the lethargy?
I think we're all exhausted... I am... We're cynical with good reason.
I'm wondering iof cynicism stops action... do you know what I mean? Maybe the apathetic have just gotten so cynical they don't even feel it anymore.

oh, I'm rambling and ranting. I am really so flipped out these days.

[mommadona]

*tick*tick­*tick*tick­....

USE it or LOSE it.

[accountability]

HOW?

seriously? How do we force the issue?

[Poboy]

"Will we too be condemned for our inaction? Or will we take action now and be the only bright footnote in this dismal narrative?"

How can we when the Congress will not listen to the American people? It could not have been given a clearer mandate than this past election!

[RDixon]

Nancy Pelosi is killing the Democratic party.
Reid isn't doing anything to help offset the slow grinding death either.

The huge question here is: WHY?

[accountability]

Well, I don't want to be paranoid but lately I'm thinking it is precisely for the outcome that Dan is warning against.
I don't know how many letters I have written, as I am sure all of us have, to Nancy Pelosi, Harry Reid, my own reps and Senator, and on and on pointing out exactly this. If mr.bush gets away with it from now on they all get away with it. The precedent is set and there will be hell to pay. So maybe that is the desired outcome. Power corrupts and maybe all of them want to have that kind of power.

(I don't even get a form letter back.)