The Bosque Boys

A legislative body may officially "censure" one of its members. Whatever you want to call such a "spirit of Congress" resolution, it is most certainly NOT a censure as this term has tradiationally been used in the United States Senate.

As you know, Tocqueville, there is precedent for Congressional Censure of the President. A censure, as I have traditionally understood it, is an official rebuke. If Senator Feingold were to find forty-nine senators to agree with him and Senator Harkin (which strikes me as unlikely), then the Congressional Censure of the President would be an official rebuke.

It would be an unofficial rebuke. There is simply no such thing as an official congressional rebuke of a President outside of impeachment.

Feingold might just as easily used admonishment, admonition, affliction, bawling out, berating, blame, castigation, censure, chewing-out, chiding, comeuppance, condemnation, correction, criticism, disapproval, dressing down, earful, expostulation, going over, hard time, lecture, lesson, objurgation, ostracism, punishment, put-down, rap, rating, rebuff, refusal, remonstrance, reprehension, reproach, reproof, reproval, repulse, row, scolding, snub, talking-to, telling-of, tongue-lashing, upbraiding, wig, wigging. Of course, Feingold deliberately chose the term "censure" because he wants the public to associate the resolution with some official sanction (a sanction which does not exist). But "words mean things," or at least they should to anyone claiming an attachment to history and constiutional governmnent.

No matter the name, Feingold's "censure" is full of sound and fury signifying nothing.

Tocqueville,

I certainly agree with your last sentence. I also agree with your second paragraph. But as for your first paragraph, if the Congress were to vote officially to "censure" the President (which is unlikely), it would be an official censure (just like the 1834 censure was an official censure).

I think you are fusing unconstitutional with extra-constitutional. Congress takes extra-constiutional action all the time. Put it another way: How does the Constitution preclude the Senate from officially censuring the President?

Three words: Separation of Powers. The Constitution contains a single procedure for Congress to address the fitness for office of the President of the United States -- impeachment by the House and subsequent trial by the Senate. Article II of the Constitution also specifies the necessary consequence of conviction in an impeachment case.

"The President, the Vice President and all civil officers shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors."

Article I states that judgment in cases of impeachment will not extend further than removal from office and disqualification to hold and enjoy any office of honor, profit or trust under the United States. This provision, however, does not authorize Congress to impose legislative punishments short of removal. Read together, the impeachment clauses require removal upon conviction but allow the Senate, at its discretion, to impose a single additional penalty -- disqualification from future office.

The framers' decision to confine legislative sanctioning of executive officials to removal upon impeachment was carefully considered. By forcing the House and Senate to act as a tribunal and a trial jury rather than merely as a legislative body, they infuse the process with notions of due process. The requirement of removal upon conviction accentuates the magnitude of the procedure, encouraging serious deliberation among members of Congress.

Most importantly, by refusing to include any consequences less serious than removal as outcomes of the impeachment process, the framers made impeachment into such an awesome power that Congress could not use it to harass executive officials or otherwise interfere with operations of coordinate branches.

. . .

I believe that for the President or any other civil officer this kind of shaming punishment by the legislature is precluded, since the impeachment provisions permit Congress only to remove an officer of another branch of Government and disqualify him from office. Such an extra-constitutional censure would undermine the separation of powers by assuming a power not enumerated in the Constitution. I still believe we are a Constitution of enumerated powers, which limits the actions of the Federal Government.

Of course, I am appealing to that fleeting sense of intellectual honesty that insists that language should not be altogeter bastardized by semantic niceities. Political chaos is connected with the decay of language... one can probably bring about some improvement by starting at the verbal end. The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns, as it were, instinctively to long words and exhausted idioms, like a cuttlefish squirting out ink.

Feingold is insincere because he has deliberately chosen the word censure to carry the exact connotation it enjoyed when, say, the Senate censured Joseph McCarthy. One is within the Senate's legitimate function; the other is entirely outside.

You make a good argument, Tocqueville; I compliment you on your narrow interpretation of the Constitution. As you know, your argument is fairly close to the one put forth by the Jackson administration in "THE PROTEST" of 1834.

Let me allow Daniel Webster (as quoted in Robert Remini's <i>Daniel Webster: A Man and His Time</i>, pp. 416-17) to address your well-taken points:

"Now, whoever wrote this Protest, Webster continued, argues that the Senate's censure violated the Constitution. In other words, neither house may consider or decide upon official acts of the President without a view to legislation or censure. This I think, Sir, is pretty high-toned pretension. This President is saying in effect that the Senate may not hold an opinion or adopt a resolution or consider an act of censure dealing with the President's offical conduct. Whoever [wrote this] did not know what he was talking about. I confess I am truly astonished as well at the want of knowledge which it displays of constitutional law, as at the high and dangerous pretensions it puts forth.

When this and the other house shall lose the freedom of speech and debate; when they shall surrender the right of publicly and freely canvassing all important measures of the executive; when they shall not be allowed to maintain their own authority and their own privileges by vote, declaration, or resolution, --they will then be no longer free representatives of a free people, but slaves themselves, and fit instruments to make slaves of others.

Nothing is more deceptive or more dangerous than the claim that government must be simplified. The simplest governments are despotisms...but all republics, all governments of law, must impose numerous limitations and qualifications of authority.... Liberty is jealous of power, jealous of encroachments, jealous of man. It demands checks; it seeks safeguards; it insists on securities.

It is strange that the writer of the Protest did not understand that no one contends that all legislative power belongs to Congress, or all judicial power to the courts, or all executive power to the President. It would be unsafe to do so.

One can't help but notice the complete absence of any constitutional analysis whatsoever in Webster's highly rhetorical response. Of course, he creates a straw man. No one is suggesting that congressman in particular or congresman in the aggregate may not roundly and routinely criticize the President.

But let's stop playing insincere games with words. Pass a hundred resolutions calling for his head. Just stop callin it a "censure"--it is no such thing. A censure is a way to keep your own house in order. Can Congress also "censure" the Supreme Court? Can Congress censure the Chief Justice of the Supreme Court? Can the President censure Congress? For that matter, can Congre "censure" you or I? And how exacty is it that one goes about censuring someone who is not a member of the body performing the cenure? By what logic is this enormity accomplished?

I think you hit the nail on the head when you call this "games with words," Tocqueville. Look at this analysis from Hal Morris (whom I don't know but who has an interesting Andrew Jackson internet newsletter):

"The constitution said the Senate is entitled to pass laws, jointly with the House, to confirm or reject presidential appointments, and to accomplish other actions by either a majority, or two thirds vote. But could the Senate make, vote on, and enter into the Senate Journal an assertion which accused the President of unconstitutional activity? One position is to ridicule the idea that the Senate would need an provision in the Constitution to vote in agreement or disagreement with an assertion, which does not claim the right to put anyone out of office, raise taxes, start a war, etc.

Jackson made it clear that he took the Senate's resolution as a kind of accusation and conviction of that worst of crimes -- bad faith, and there was a wide expectation that he would, in effect, challenge the Senate to a duel.

What is most interesting in Jackson's protest of the Senate action, reflects a belief, characteristic of southern culture, that there are no "mere assertions". Words were too powerful for that (and their power is to be cultivated). They must be handled with care; restrained by formal rules. What was true for the individual "southern gentleman" was certainly true for the Senate of the United States.

Another characteristic attitude toward words is that two versions of reality cannot exist amiably side by side. There must be a confrontation leading to the extinction of one or the other. If X. says you're a poltroon, you can't shrug it off with "I know better, and my friends, and other sensible people know better".("end quote)

As I know us both to be heavily influenced by "Southern Culture," Tocqueville, are we making too big of a deal out of Feingold's attempt to engage (enrage? embarrass? diminish? challenge?) the President?

Consider for a moment the word "impeachment." It means to discredit, to reveal as untrustworthy.

Now we would all laugh and laugh if someone said that Congress "impeached" Ronald Reagan in the 1980s over Iran Contra. Or that in view of a recent congressional report revealing that no weapons of mass destruction existed in Iraq, congress impeached president Bush. We would not be having this conversation, I suspect, because everyone would agree that such a statement, although technically true, conceals a greater falsehood and shameless insincerity.

Whatever Jackson's motives (and he was known to be ill-tempered), I think Jackson was right to raise a constitutional issue. A constitutional republic like ours is uniquely grounded in its foundational moment, its time of creation. A founding is no ordinary moment. It is not merely the instant that the ball started rolling. Instead, it is a moment that presumes a certain authority over all the moments that will follow—and to speak of a founding is to presume that such moments in time are possible. It most closely resembles the moment that one takes an oath, or makes a promise. One could even say that a constitutional founding is a kind of covenant, a meta-promise entered into with the understanding that it has a uniquely powerful claim upon the future. It requires of us a willingness to be constantly looking back to our initiating promises and goals, in much the same way that we would chart progress or regress in our individual lives by reference to a master list of resolutions, or fend off temptation by remembering our marriage vows—rather than rewriting the vows when someone really irresistible waltzes into the room. (Which is a good example of what it means to have a “living constitution.”)

I think that Jackson wins the constitutional argument on the merits. I think these sorts of arguments matter a great deal because it is too easy to give up a little ground where language is concerned. Language is indispensible to the moral imagination.

In answer to your question, "can Congress censure a member of the judiciary?" I don't see why not. Congress has the constitutional power to remove from office the President and federal judges through impeachment. Congress also has the constitutional authority to expel its own members. What Congress does not expressly have under the Constitution is the power to "censure" its own members. Congress developed the censure as an intermediate step to express disapproval of fellow members (short of expulsion). Do you see that as unconstitutional? There is no "power of censure" in the document. If you are okay with Congress "making-up" a procedure and giving it a name for its own internal use, how different in spirit is that from extending the same intermediate measure to the other branches? Does it not make some sense for Congress to have a course of action between nothing and impeachment?

Moreover, there is precedent for Presidential Censure in the nineteenth century (by the way, after hearing Jackson's constitutional argument, the Senate voted to reaffirm the censure). Hypothetically, if the president were ever to be censured again, I suppose the executive might take Congress to court, but I would not be optimistic about the plaintiff's chances. In the meantime, the Senate should assume that the precedent for censure is binding until further notiified.

This is my last post on this topic. Even dead horses deserve a nap. I must confess to feeling as tough I'm attempting to explain the color "blue" to a blind man. No matter how arfully I describe it, he just can't see it.

As for Jackson and the so-called censure "precedent," this is certainly an interetsing precedent. Of course, it is not a constitutional precedent and the Supreme Court has never decided this question. It is barely a historical precedent, having occurred only once in the history of the United States. If a single occurrance of some act bestows upon it "precedential" power, consider other fascinating "precedents": burning witches, slavery, suspending habeas corpus, detaining Japanese Americans in internment camps, lying under oath, shredding documents, bribery, caning a Senator on the Senate floor, rogering White House interns, telling Juanita Broaderick to "put some ice on it," etc. That something happened, of coure, in no way answers the normative question of whether it "should" have happened, or wheter it was in harmony with the Constitution. Such normative questions (and their important answers) are why life is worth living.

Of course, Jackson protested the censure, rightly arguing that the Senate had adopted the moral equivalent of an impeachment conviction without formal charges, without a trial, and without the necessary two-thirds vote, violating the separation of powers. Led by Thomas Hart Benton, the Constition's defenders later expunged the censure from the Senate journal. There's your precedent.

I think your position is fairly clear now, in light of your recent take on the propriety of congress censuring the Supreme Court or singling out a Supreme Court justice. Your position speaks fr itself as an obvious (and sad) asault on the venerable principle of judicial independence. Judicial independence is critical to the functioning of any democracy – as evidenced by its incorporation into the structure of our nation’s government established by the federal constitution. The concept of judicial independence is one of the key factors that distinguishes our system of government from others around the world. It protects the weak from the powerful; the minority from the majority; the poor from the rich; yes, even the citizens from excesses of government.

What does the concept of judicial independence mean? It surely includes the ability and duty of a judge to decide each case according to an objective evaluation and application of the law, without the influence of outside factors and harrassing censures. The citizens of our nation rightly expect that in every case decided by a court.

When a self-proclaimed "conservative" makes such arguments, it is easy to see where our tenuous constitutional experiment is headed. As for me, I'll take my stand with Andy Jackson (and Henry Hyde) and the Constitution any day. You can stand shoulder to shoulder with the Russ Feingolds of the world. May God have mercy on your soul.

1. Thank you, Tocqueville, for ceding to me the "last word." I wish I had the discipline to do that.

2. For any outside observer to this colloguy (and I would be surprised if any one has stayed with this through comment #12; but if someone is out there still reading, I would like to hear from you), I think I should say that Tocqueville and I are friends who go way back and enjoy vigorous debate.

3. As for "attempting to explain 'blue' to a blind man," I prefer the analogy of two sighted persons arguing over blue and aquamarine.

4. I think a discussion of precedent is inherently conservative.

5. All precedents are not equal in value. The precedent of presidents having illicit contact with White House staff is not equal to acts of Congress. The Senate's censure of the President in 1834 is an important precedent. The unsuccessful vote by the House in 1819 to censure General Jackson in re the Seminole Affair is an important precedent. It is not constructive to demean these precedents by lumping them in with ridiculous and heinous acts.

6. One should note that those who call censure unconstitutional are not in the majority. I don't know of any persons in the public arena (other than Tocqueville and Mark Levin) who argue that the Senate does not have the right to censure the President. In fact, the Republican leadership is committed to bringing the censure resolution to a vote. That does not mean that we are right, but it means that our position deserves some respect. And the position that holds that censure is unconstitutional bears a larger burden.

7. After spending the last two days working on a club house for my sons, I am now convinced that club-house building, like politics, is the art of the possible. Censure is a highly political act. This current political drama is not really about Con-Law, it is about current politics. That was true in 1834 and 1999. If the vast majority of Congress sees censure as a viable tool, then the reality is that censure is a viable tool (until it is nullified through constitutional means).

8. In terms of constitutionalists from 1834, I think Tocqueville puts himself in poor company with Andrew Jackson and Thomas Hart Benton and Benjamin Butler. Great constitutional lights such as Roger Taney and Martin Van Buren stayed away from the Protest. And Calhoun and Clay and Webster all agreed that the censure was within the purview of the Senate.

9. Well done. Time will tell.