Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment Power

Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment PowerAuthor(s): Jeremy D. BaileySource: The Review of Politics, Vol. 70, No. 4 (Fall, 2008), pp. 572-594Published by: Cambridge University Press for the University of Notre Dame du lac on behalf ofReview of PoliticsStable URL: http://www.jstor.org/stable/20453040 .

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The Review of Politics 70 (2008), 572-594. Copyright c University of Notre Dame doi:10.1017/S0034670508000776 Printed in the USA

Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment Power

Jeremy D. Bailey

Abstract: A problem within liberal constitutionalism is determining whether the

majority actually consents to its government, and, in particular, to those extraordinary acts that take place in the silence of the law. This paper explores this

problem in the U.S. context by presenting Thomas Jefferson's understanding of the impeachment power. Jefferson preferred a theory of impeachment that, like his theory of coordinate review, would allow each department to participate in the impeachment process, because he believed that executive participation would improve the law bringing its own character, or will, to it. As an alternative to the

more common political understanding of impeachment, which leans toward legislative exclusivity, and the dominant legal understanding, which tends toward judicial finality, Jefferson's theory offers a way for the people to judge whether a

particular act of lawlessness is in the public good.

A Court of Impeachments is among the most puzzling articles of a repub lican Constitution, and it is far more easy to point out defects in any plan, than to supply a cure for them.

James Madison, on Thomas Jefferson's 1783 Constitution for Virginia, 1788

Among the most controversial aspects of Thomas Jefferson's presidency was his role in the impeachment of Justice Samuel Chase. As the first and last

attempt to remove a Supreme Court Justice for his or her political opinions, the Chase impeachment and acquittal is a key step in the development of the impeachment power, specifically in the ascendancy of a particular under standing of the grounds for impeachment. An aspect of this development is the common scholarly interpretation of the Chase acquittal, specifically, that the whole affair was one battle in a larger partisan war, with Jefferson being at the center of the conflict. But such interpretations have failed to take into account the very perplexing attitude exhibited by the chief executive to the entire process of impeachment. In fact, given Jefferson's hopes for the impeachment power, it is possible that Jefferson had misgivings about remov ing Chase. Surprisingly, no scholar has provided an account that integrates

The author would like thank Steve Wirls for his comments on an early draft of this paper. Research was made possible by a summer stipend from the NEH, grant # FT-53776-05.

572



CONSTITUTIONALISM, CONFLICT, AND CONSENT 573

his actions with regard to Chase with his general belief or theory of consti tutional government and the necessity of coordinate review and executive prerogative.' This article attempts to do just this, and thereby affords another perspective on the third president that goes a long way toward explaining his reticence toward obtaining Chase's conviction in the Senate. At the same time, by presenting Jefferson's efforts to broaden the impeach ment process by inviting the executive branch to take part, this article provides grounds for reconsidering the power of impeachment as it was orig inally conceived.

The Two Understandings of Impeachment under the Constitution

Before we turn to Chase, we should consider the constitutional context of the impeachment power. Even a quick reading of the Constitution reveals that the scope of impeachment is open to debate and perhaps partisan manipulation: although the meaning of treason and bribery is clear, "high crimes and mis demeanors" is not.2 As a result, there are two understandings of the impeach ment power. The legal understanding insists that impeachment and removal be reserved for criminal offenses, that is, to offenses for which an official could be indicted in a criminal court, while the political understanding looks to impeachment as recourse against officers who have harmed the nation but have not broken a specific law.

xSee for example the omission of consideration of Jefferson's understanding of

impeachment in Richard K. Matthews, The Radical Politics of Thomas Jefferson: A Revisionist View (Lawrence, KS: University Press of Kansas, 1984); Garret Ward Sheldon, The Political Philosophy of Thomas Jefferson (Baltimore: The Johns Hopkins University Press, 1991); David N. Mayer, The Constitutional Thought of Thomas

Jefferson (Charlottesville, VA: University Press of Virginia, 1994); Keith E.

Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999), 60; Bruce Ackerman, The Failure

of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (Cambridge, MA: Belknap Press of Harvard University Press, 2005); and Jeremy D.

Bailey, Thomas Jefferson and Executive Power (Cambridge: Cambridge University Press, 2007). An exception is Jack Knight and Lee Epstein, who employ game theory to argue that Chase was acquitted because Jefferson actually favored judicial review.

Knight and Epstein, "On the Struggle for Judicial Supremacy," Law and Society Review 30 (1996): 87-120.

2Consider the different approaches suggested by Gary L. McDowell, Bruce Ackerman, Samuel H. Beer, Matthew Holden, Jr., and Cass R. Sunstein, "Testimony before the House Judiciary Committee," PS: Political Science and Politics 32:1 (1999): 24-38. See also "The Scope of the Power to Impeach," Yale Law Journal 84: 6 (1975): 1316-37.



574 THE REVIEW OF POLITICS

As Jeffrey K. Tulis has written, each understanding can find support for its position in the text and history of the Constitution. As for the text, several pas sages in the Constitution liken impeachment to a legal process (for instance, the Senate acts like a jury), but others specify that the punishment is limited to removal from office, suggesting that the criminal punishment would be reserved for another body.3 Neither is original intent a sure guide.4 During the debates of the Federal Convention of 1787, the delegates clearly rejected "maladministration" as a standard for impeachment and chose instead "high crimes and misdemeanors" on the worry that the maladministration standard would allow Congress to remove the president for mere policy differences.5 But in The Federalist Alexander Hamilton explicitly described the violations leading to impeachment as "political."6 More important, perhaps, studies have shown that many early Americans - including delegates to state ratifying conventions, North Carolina and Virginia in particular - assumed that "high crimes and misdemeanors" meant "malad ministration." Even James Madison, whose criticism of "maladministration" in the 1787 Convention forced the delegates to turn to "high crimes and mis demeanors," supported the political understanding as a delegate to the Virginia ratifying convention and then used the term maladministration favor ably in the first Congress when explaining that presidents who abused presi dential removal powers could be impeached.7

There are additional problems with each understanding. The obvious diffi culty with the legal understanding is that it must ask members of Congress to make political judgments even as it pretends that those judgments are required by the law. When is an indictable act criminal enough to qualify as a high crime or misdemeanor? Must it include some criminal act under taken in an official's public capacity, that is, must the crime also qualify as abuse of office? The virtue of the alternative political understanding, then,

3Jeffrey K. Tulis, "Impeachment in the Constitutional Order" (Paper delivered at the 2007 meeting of the Southern Political Science Association).

4Michael J. Klarman, "Constitutional Fetishism and the Clinton Impeachment Debate," Virginia Law Review, 85 (1999): 637-45.

5Charles Black, Impeachment: A Handbook (New Haven: Yale University Press, 1974), 29-32.

federalist No. 65, in Alexander Hamilton, John Jay, and James Madison, The Federalist: A Commentary on the Constitution of the United States, ed. Robert Scigliano (New York: Modern Library, 2000), 417.

7Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, MA: Harvard

University Press, 1973), 53-102. Peter C. Hoffer and N.E.H. Hull, "Power and

Precedent in the Creation of an American Impeachment Tradition: The

Eighteenth-Century Colonial Record," The William and Mary Quarterly, 3rd Ser. 36

(1979): 51-77; Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 2000), 18-19; Annals of Congress, 1st Cong., 1st Sess., 517.




is that it provides a way to solve the incompleteness of the law when officials do harm but do not break a particular law - for instance, when a judge refuses to hold court or a president's addiction to painkillers renders him unfit for office. Conceived this way, impeachment is a remedy for what the normal legal process cannot accomplish because impeachable offenses can concern, as Joseph Story put it, "duties, which are easily understood by states man" but "rarely known by judges."8 The problem, however, with the politi cal understanding is that it seems to undermine separation of powers by making presidents and judges dependent upon the will of Congress. If impeachment were simply the result of ordinary political strength, we

might expect that executive and judicial powers would be drawn into what Madison regarded as the legislative power's "impetuous vortex" and result in legislative tyranny.9 To be sure, there have been attempts to find a middle way that combines the

two understandings, particularly by broadening the legal understanding to include an otherwise noncriminal abuse of office that results in great injury to the nation, but, as important as this endeavor might be, it has been ren dered almost impossible by practice.10 This rout of the political understand ing is unfortunate. As Tulis argues, it has enabled blame-avoiding members of Congress to criticize but not prevent the aggrandizement of modern execu tive power.11 Another problem is that the legal understanding is in the awkward position of being victorious but incomplete, in that nobody would deny that partisan politics is a primary concern in most impeach ments.12 This is to say that the legal understanding can serve, and has served, as a formal cover for what are in fact political motivations. As a con sequence, the moderate "abuse of office" standard has to seek the mantle of the legal understanding by publicly spurning the political one, or perhaps by using the legal standard as a "necessary" condition for impeachment. In short, the legal understanding has become so entrenched that abuse is likely to be couched in strictly legal terms even when the law insufficiently

8Joseph Story, Commentaries on the Constitution of the United States (Boston: Hillard,

Gray and Company, 1833), paragraph 762. 9The Federalist No. 48, Scigliano, 316. 10For the third understanding, see Gerhardt, The Federal Impeachment Process,

103-112, and David Gray Adler and Nancy Kassop, "The Impeachment of Bill Clinton," in The Presidency and the Law: The Clinton Legacy, ed. David Gray Adler and Michael A. Genovese, 155-74 (Lawrence, KS: University Press of Kansas, 2002).

11Tulis, "Impeachment in the Constitutional Order," 17-24.

12See, for example, how electoral considerations influenced the vote on holding

hearings on Bill Clinton in the House, David J. Lanoue and Craig F. Emmert, "Voting in the Glare of the Spotlight: Representatives' Votes on the Impeachment of President Clinton," Polity 32 (1999): 253-69. See also Richard M. Pious, "The Constitutional and Popular Law of Impeachment," Presidential Studies

Quarterly 28 (1998): 806-15.




captures the highness of the crime committed by the executive. As Tulis shows, the examples of Andrew Johnson, Richard Nixon, and Bill Clinton confirm that the legal understanding of impeachment has not served the con stitutional order well in resolving what were in fact political disagreements between Congress and the president.13

The Impeachment of Justice Chase

An important step in the victory of the legal understanding was taken when Jefferson and fellow Republicans failed in their attempt to use the impeach ment power to tame the political activity of Federalist judges. In 1803 and 1804, Republicans impeached and removed John Pickering, a Federalist federal judge who was insane and a drunk but had committed no crimes. Then, in what scholars have regarded as a warm-up for impeaching Chief Justice John Marshall, House Republicans impeached Supreme Court Justice Samuel Chase, on the grounds that he was too partisan in his court room conduct as circuit judge. The Senate considered eight articles of impeachment against Chase. No article accused Chase of committing a crime. Because there was basic agreement about the facts stated in the articles, the

trial turned on the meaning of those facts with regard to the requirements for impeachment. Chase's defense team, and Senate Federalists, pushed the legal approach and insisted that an impeachable offense was by definition an indictable offense. As they put it, an indictable offense was one that trans gresses against a particular law, not against a political doctrine or even an alleged understanding of judicial propriety. Further, if Congress disapproved of how Chase conducted his courtroom, it could pass laws to codify its con cerns. But because there was no law forbidding what Chase had done, and indeed there was some precedent for it, the impeachment was simply a par tisan attempt to remove a judge for a difference of opinion. Because there is a difference between an opinion and a crime, Republicans would have to show that Chase meant to break the law.14 Some Republicans attempted to meet the legal argument by appealing to what Peter Charles Hoffer and N.E.H. Hull have labeled a "dangerous tendency" standard. Under this understanding, even though it would be impossible to prove criminal intent, the conse quences of Chase's unfair enforcement of the law were sufficient to prove criminality.15 As John Randolph explained it, "We do not charge him with

13Tulis, "Impeachment in the Constitutional Order," 5-9.

14Annals of Congress, 8th Cong., 2nd Sess., 111-116 and 358; and Whittington, Constitutional Construction, 30.

15Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (New Haven: Yale University Press, 1984), 240-251. This approach is similar to Raol

Berger 's conclusion that Chase deserved to be impeached because his misuse of

power was illegal. See Berger, Impeachment, 224-51.




a general zeal in the discharge of his office, but with an indecent zeal, in particular cases, for laws of doubtful and suspicious aspect." 16

But determining whether enforcement is proper requires not only an under standing of the law in question but also a functional claim about making that determination. Accordingly, several House Republicans argued that Congress represents the people and therefore must be given broad impeach ment powers. Under this broader understanding, impeachment "may fairly be considered a kind of inquest into the conduct of the officer, merely as it regards his office." 17 Taken to its extreme, as in the speeches of William Branch Giles, this functional argument pointed toward a theory in which impeachment was little more than a question of power: "You hold dangerous opinions, and if you suffer to carry them into effect you will work the destruc tion of the nation. We want your offices for the purpose of giving them to men who will fill them better."18 Unsurprisingly, Federalists responded with their own functional argument about the courts. Because Chase was a judge, and therefore expert in the law, it was especially crucial that Republicans be required to prove that Chase transgressed against a particular law. Otherwise, the consequences of removal would be disastrous in that it would render the judiciary - the keepers of the technical understanding of the law - subservient to the legislative branch. By making a crime of impru dence, impeachment and removal would prove that the Constitution was only what the majority said it was. According to Federalists, expanding impeachment beyond the letter of the law would render both impeachment and the law arbitrary.

The House impeachment managers were able to achieve a majority vote to remove in the Senate but not a two-thirds majority. Although 25 of the 34 members of the Senate were Republicans, nine Federalists and a block of six Republicans voted to acquit on every article. The most common expla nation for the Republican defectors is that they were moderates and objected to the political understanding of impeachment.19 Under this account, the Chase affair set the precedent for the legal understanding of the impeachment power, and the scruples of the defecting Republicans secured the judiciary by placing the impeachment power on the path of lawful moderation.20

16Annals of Congress, 8th Cong., 2nd Sess., 164.

17Annals of Congress, 8th Cong., 2nd Sess., 332.

18John Quincy Adams, Memoirs, November 29 and December 21, 1804, as cited in Robert M. Johnstone, Jr., Jefferson and the Presidency: Leadership in the Young Republic (Ithaca: Cornell University Press, 1978), 185.

19The Republican defectors included Stephen Bradley (VT), Samuel Mitchill (NY), Israel Smith (VT), John Smith (OH), John Smith (NY), and John Gaillard (SC).

20For this understanding, it is significant that during the Chase trial John Marshall confided that in order to prevent Congress from having the power to remove judges for their opinions he would have been willing to give up the of power of judicial review. See Henry Adams, History of the United States of America during the




Alternative accounts, however, call into question this traditional understanding of the Chase acquittal. One explanation is that the defecting, moderate Republicans were alienated by Randolph's shrill criticism of the Yazoo compromise, not Randolph's understanding of impeachment.21 Another explanation, offered by Keith Whittington, is that the outcome was a rejection of the legal and political understandings, but the closeness of the vote suggested at least partial victory for Republicans in that they succeeded in their real objective, limiting future political activity of Federalist judges.22 Finally, Bruce Ackerman has argued that the Chase impeachment was but one step in a "grim institutional dance" between a new plebiscitary presidency and judges committed to the previous constitutional order. For Ackerman, this dance emerged during the election of 1800, which had forced Republicans to construct the mandate theory of the presidency and Federalists to respond with the argument from the letter of the Constitution. By trying to push poli tics down paths most advantageous for themselves, the parties appealed to two Constitutions, one from 1787 and one from 1800. The clash of these two constitutions - one emphasizing the law and the other public opinion - set

up the Chase impeachment.23 To summarize, in place of the straightforward plot that Republican senators rejected their party's attempt to politicize the impeachment power, we now have a plot rich with subtle contingencies point ing toward alternative, and contradictory, paths. The new interpretations by Whittington and Ackerman correctly reveal the

flaws of the traditional understanding of the Chase acquittal, which, like the

Administrations of Thomas Jefferson (New York: Library of America, 1986), 460; Lynn W. Turner, "The Impeachment of John Pickering," American Historical Review 54 (1949): 485-507; Robert G. McCloskey, The American Supreme Court, Fourth Edition, revised

by Sanford Levinson (Chicago: University of Chicago Press, 2005), 29-30; William H. Rehnquist, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (New York: Quill, William Morrow, 1992), 108-110.

21Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971). With the exception of one, each defector

was, as Henry Adams put it, a "northern democrat" (Adams, History, 463).

22Whittington, Constitutional Construction, 20-71. The fifth and sixth articles,

respectively, received zero and four votes, confirming that Senate Republicans

clearly rejected Randolph's attempt to make an impeachable offense of Chase's pro

cedural errors regarding the application of Virginia law. But a majority of

Republicans also believed that Chase's political activities from the bench constituted

an impeachable abuse of office. Thus, it is significant for Whittington that the eighth article, which was based on Chase's infamous instructions to a Baltimore jury and

far from the position that impeachable offenses must be indictable, gathered the most votes in the Senate: "With his Baltimore charge, Chase had entered the political arena, and the votes against him showed that to the extent that judges entered that

domain, they were vulnerable."

23Ackerman, Failure of the Founding Fathers, 199-223.




legal understanding itself, fails to see the justice in the political understand ing. It is true that Federalists discerned that the legal understanding would bring steadiness to what would otherwise be merely a contest of partisan power. If Congress were allowed to use impeachment to interpret the law, then Congress would be given the power to both create and execute the law, which is usually considered a characteristic of tyranny. But Republicans rightly noted that the indictable offense standard could lead to embarrassing, and even dangerous, results. The diversity of state laws could allow the Congress to decide, for instance, that a judge who had vio lated a blue law (or perhaps a slave law) had committed a high crime.

More dangerous, the standard would fail to provide recourse against a presi dent who vetoed every bill presented to him. 4 More broadly, the legal under standing would require that senators become members of a jury in which they may decide questions of fact but not of law and thus dangerously offered judges a monopoly on the interpretation of the law. Because of the challenge to the legal understanding of impeachment

suggested by these new efforts to understand the Chase acquittal, and, more precisely, because of the dilemmas raised by the functional arguments of each understanding of impeachment, we would do well to consider the person who had the best opportunity to think through the consequences of these arguments before they were firmly settled by practice. As a unique com bination of politician and political theorist, and as figurehead of the first change of power in the young republic, Jefferson was uniquely positioned to see and alter his constitutional order. To understand the Chase affair, and impeachment generally, it is time that we consider Jefferson's objectives in addition to those of Jefferson's party.

Jefferson's Role

Because Jefferson was so secretive, we do not know the extent of his involve ment. From previous scholarship, we know that Jefferson the president was often involved behind the scenes in the removal of executive and judicial officers.25 We also know Jefferson initiated the Pickering impeachment:

24John Randolph made this point, Annals of Congress, 8th Cong., 2nd Sess., 643. 25On removal of executive officials, see Carl E. Prince, "The Passing of the

Aristocracy: Jefferson's Removal of the Federalists, 1801-1805," Journal of American

History 57 (1970): 563-75. With regard to the repeal of the Judiciary Act, Jefferson pro vided Congress with numbers demonstrating that the new judgeships were unnecess

ary and costly, and the repeal was largely known as the "president's measure." Ellis,

Jeffersonian Crisis, 44-45. Prince concludes that these removals, when added to the

removal of Pickering and two other judges who never received their commissions

on technicalities, resulted in the removal of eighteen of thirty Federalist judges by 1803 (Prince, 568).




Jefferson's Secretary of the Treasury, Albert Gallatin, arranged for depositions with testimony about Pickering's behavior to be sent to Jefferson who then forwarded the documents to the House, and Jefferson rewarded the prosecu tors and witnesses against Pickering with offices, including the New Hampshire district attorney, who was given Pickering's position ten days after Pickering's removal.26 And we know that Jefferson brought about the Chase Impeachment by calling Chase's "attack on the principles of our Constitution" to the attention of Joseph Nicholson, one of the House man agers in the Pickering trial.27 We also know that Jefferson invited Burr, whom he had previously spurned, to the White House and gave jobs to Burr's friends and family, presumably because Burr was presiding over the trial of Chase.28 Finally, we know that Jefferson carefully recorded the Senate vote on each of the articles, not only counting the total votes for each article but also tabulating how many times each senator voted to remove.29 What scholars have not determined is why Jefferson was courting Burr and why he was so interested in the Senate votes.

One obvious possibility is that Jefferson wanted Chase to be removed, perhaps because of a principled commitment to making judges more respon sible to the people. In letters written during his retirement, Jefferson objected to the tenure of good behavior for judges on the grounds that "independence of the will of the nation is a solecism, at least in a republican government." In

place of impeachment, which experience had rendered a "mere scarecrow" and a "bugbear," Jefferson recommended that judges be given a six-year term with "a re-appointmentability by the president with the approbation of both houses." Alternatively, the Constitution could be amended to make impeachment a more "practicable remedy": England's removal by a "majority only of each house" was better than the Constitution's two-third's require ment for removal, because the latter allowed party passion, personal friend ship, and "the sympathies of the human heart" to conspire to make judges secure for life. As Jefferson saw it, involving the president and Congress in a periodic assessment of judicial behavior would force judges to be under "some awe of the canvas of their conduct." As he put it, judges were no more trustworthy than other men and therefore could not "be trusted for life, if secured against all liability to account."30

26Turner, "Impeachment of John Pickering," 491, 506.

27Dumas Malone, Jefferson the President: First Term, 1801-1805 (Boston: Little, Brown, 1970), 460-68.

28Garry Wills, Negro President: Jefferson and the Slave Power (Boston: Houghton Mifflin, 2003), 144.

29"Samuel Chase, March 1805, Impeachment," Thomas Jefferson Papers, Series One,

General Correspondence, 1651-1827, Library of Congress. 30Thomas Jefferson to Thomas Ritchie, 25 December 1820, in The Writings of

Thomas Jefferson, ed. Paul Leicester Ford, 10 vols. (New York: 1892-99), 10:170-71; Thomas Jefferson to James Pleasants, 26 December 1821, in Ford, 10: 198-99; Thomas




Although these proposals to change the tenure of judges correspond to Jefferson's larger movement in retirement toward something like direct democ racy, they are also difficult to extricate from Jefferson's partisanship.31 Because the federal judiciary had become a refuge of opposition to the Revolution of 1800, and because the Marshall Court enhanced the power of the national gov ernment at the expense of the states, an alternative interpretation would be that Jefferson's later criticism of judicial tenure was more political than principled. There is some evidence for this account. In 1798, when the House impeached Republican Senator William Blount, Jefferson worried that the scope of the impeachment power was too broad. When Federalists argued that any person - including a private citizen - was impeachable and that an impeach ment trial need not include a jury, Jefferson wrote Madison that the Federalist argument jeopardized the Eighth Amendment. He explained that the proceed ings had convinced him that impeachment was the "most formidable weapon for the purposes of dominant faction that ever was contrived," and he went so far as to conclude that British history indicated that "impeachment has been an engine more of passion than of justice." Given the Federalist domination of the Senate, he doubted that "we could count on one-third in an emergency."32 During this period, Jefferson also left evidence that he ascribed to the legal understanding. To one Republican senator, Jefferson addressed the question "Whether an impeachment for a misdemeanor be a criminal prosecution?" by sending along "passages from Law authors showing that in Law-language the term crime is in common use applied to misdemeanors, & that impeachments, even when for misdemeanors only are criminal prosecutions."33 Similarly, his 1801 Manual of Parliamentary Practice summarized British practice regarding impeachment and noted that the articles of impeachment serve "in place of an indictment" and would contain a "criminal charge against the supposed delinquent."34 Perhaps Jefferson tried to narrow the impeachment power when his own party was in the minority but then tried to expand it when his party found majority status.

Jefferson to M. Coray, 31 October 1823, in The Writings of Thomas Jefferson, ed. Henry A.

Washington, 9 vols. (Washington, DC: 1853-4), 7:321-22; and Thomas Jefferson to Edward Livingston, 25 March 1825, in Washington, 7:403-404.

31See, for example, Jefferson to John Taylor, 28 May 1816, and Jefferson to Samuel

Kercheval, 12 July 1816, in Thomas Jefferson: Writings, ed. Merril D. Peterson

(New York: Library of America, 1984) (hereafter WTJ), 1391-1403. 32Thomas Jefferson to James Madison, 15 February 1798, in Ford, 7:202-203. 33Thomas Jefferson to Henry Tazewell, 27 January 1798, Papers of Thomas Jefferson,

ed. Julian Boyd, et al., 32 vols. (Princeton, NJ: Princeton University Press, 1950

2005) (hereafter PTJ), 30: 58-9. 34Thomas Jefferson, A Manual of Parliamentary Practice for the Use of the Senate of the

United States, Republished from the 1801 Edition in Cooperation with the Library of

Congress, Apple wood Books, 136-37.




But even the account from party is inconclusive. Importantly, a common strand in several of the traditional and revisionist accounts of the Chase acquittal is that Jefferson actually did not wholly support the impeachment effort. A few scholars conclude that even though Jefferson initiated the impeachment proceedings he limited his involvement to observation and rooting for removal.35 Others hold Jefferson actually changed his mind and tried to prevent the removal of Chase: because Jefferson was then undecided about the merits and/or requirements of an independent judiciary, his own intra-party feud with John Randolph was larger than the impeachment, so Jefferson vindictively hoped that Randolph and his followers would fail to remove Chase.36 Partisanship complicates even as it clarifies. Another problem with any explanation that reduces itself to partisan

motivations is that Jefferson was more than a partisan. Knight and Epstein, for instance, conclude from Chase's acquittal that Jefferson wanted to preserve judicial review and therefore allowed the impeachment effort to fail.37 Although they intend by their account to show the usefulness of game theory to historical investigation, their conclusion suggests that Jefferson

was motivated by a principle at least as much as his party was committed to partisan victory. Pushing aside for the moment the question of Jefferson's commitment to judicial review, it is important to remember that Jefferson had spent his entire career thinking about constitutionalism and the require ments of republican government. Throughout the 1780s and 1790s, Jefferson proposed plans or revisions for the Virginia Constitution, the Articles of Confederation, the U.S. Constitution, and the French Declaration of Rights. Long into his retirement, he suggested reforms of constitutions in other nations.38 Further, as his 1815 letter to W.H. Torrance suggests, there was con siderable subtlety in his understanding of impeachment. Although this letter has been cited as evidence of Jefferson's opposition to judicial finality, it is underappreciated for what it reveals about Jefferson's understanding of the impeachment power.39 As we will see, his letter to Torrance suggests

35Malone, Jefferson the President, 479; Rehnquist, Grand Inquests, 113; Forrest

McDonald, The Presidency of Thomas Jefferson (Lawrence, KS: University Press of

Kansas, 1986), 92-93.

36Ellis, Jeffersonian Crisis, 35, 88-94.

37Knight and Epstein, "On the Struggle for Judicial Supremacy," 106-111.

38Jefferson to Edmund Pendleton, 25 May 1784, PTJ, 7: 292-93; Jefferson to James Madison, 29 June 1792, PTJ, 24:134; Jefferson to John Adams, 28 February 1796, PTJ: 28:618; Jefferson to Demeunier, 1796, PTJ, 10:3-64; Jefferson to A.L.C. Destutt de

Tracy, 26 January 1811, WTJ, 1241-47; Jefferson to Alexander von Humboldt, 14 April 1811, WTJ, 1247-48; and Jefferson to Samuel Kercheval, 12 July 1816, WTJ, 1395-1403.

39Jefferson to W.H. Torrance, June 11,1815, in Ford, 9:516-19. See Charles Warren, The

Supreme Court in United States History (Boston: Little Brown, 1922), 267; Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to




a connection between his understanding of impeachment and his doctrine of coordinate review.

Jefferson's Understanding of Impeachment

In his letter to Torrance, Jefferson took up impeachment to answer a different question arising from separation of powers. Torrance had written Jefferson regarding "a law of the State of Georgia which suspends judgments for a limited time" to ask "whether it may be valid under the inhibition of our con stitution to pass laws impairing the obligations of contracts." In response, Jefferson argued that legislatures are "less restrained than the Duke of Venice by the letter of the decree" and, therefore, must in some cases look beyond the terms of the contract and "adjudge to Shylock a reasonable equivalent":

And I believe that in our States this umpirage of the legislatures has been generally interposed in cases where a literal execution of contract has, by a change of circumstances, become impossible, or, if enforced, would produce a disproportion between the subject of the contract and its price, which the parties did not contemplate at the time of the contract.

Jefferson's use of The Merchant of Venice was an obvious attempt to show the insufficiency of contracts when judged by nature, and to explain why the express terms of the Georgia contracts, like that of Shylock, were less than just. But the reference to the Duke reveals a critical difference between the law of Shakespeare's Venice and the U.S. republic in that the United States has no Duke to wield the last word. That is, if legislators are to look to justice in addition to the letter of the law, what are they to do when judges have already given Shylock his due?

To answer the question about Georgia, then, requires not only a higher law approach to judging but also a functional argument about "whether the judges are invested with exclusive authority to decide on the constitutionality of a law." As Jefferson put it, the answer varied according to the kind of law. Laws pertaining to "questions of property, of character and of crime" belong "of course" to the judiciary, but the constitutionality of laws "prescribing executive action, and to be administered by that branch ultimately and without appeal" must be decided by the executive branch. Put in the terms of a rule, "that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other co-ordinate authorities." Jefferson here was elabor ating his theory of coordinate review. Under this doctrine, often called

Judge-Made Law (New York: Basic Books, 1986), 94; Mayer, Constitutional Thought of Thomas Jefferson, 271-72.




departmentalism, each department of government may interpret the Constitution regarding questions within its own constitutional sphere. Jefferson believed that Marbury v. Madison (1803), for example, was wrong because the Constitution had entrusted decisions about appointments and removals to the president.40

To be sure, Jefferson acknowledged that departmental interpretation would lead to conflict. To Torrance, he wrote that his theory could produce "contra dictory decisions" and even "inconvenience," but he predicted that the "pru dence of public functionaries" and "authority" of public opinion would produce "accommodation." Elsewhere, he explained that he was confident that such conflict would be solved by the "change of persons" through future elections.41 Nevertheless, the examples Jefferson chose to explain to Torrance the principle are worth closer inspection:

Such an instance of difference occurred between the judges of England (in the time of Lord Holt) and the House of Commons, but the prudence of those bodies prevented inconvenience from it. So in the cases of [William] Duane and of William Smith of South Carolina, whose characters of citizenship stood precisely on the same ground, the judges in a question of meum and tuum which came before them, decided that

Duane was not a citizen; and in a question of membership, the House of Representatives, under the same words of the same provision, adjudged William Smith to be a citizen. Yet no inconvenience has ensued from these contradictory decisions.

The first illustration is clear: Sir John Holt was a Chief Justice who seemed to simultaneously allow judicial review and parliamentary supremacy.42 Likewise, Jefferson's example of the citizenship cases of Smith and Duane seems at first to illustrate Jefferson's principle. Whereas the citizenship of Duane was decided by judges in the context of a libel suit brought against Duane, Smith's was decided in the House in the context of a challenge over Smith's eligibility as a representative. Because the power to judge the qualifi cations of its own members is explicitly reserved to each house of Congress under the Constitution, the Constitution appears to envision different resol utions of similar questions. But the example is more complicated. Because the judicial decision that Duane was not a citizen was but one step in a larger legal battle between the Republican editor and Federalist judges, Jefferson's reference to Duane also suggests a broader understanding of coordinate review. As Jerry W. Knudson explains, Duane faced a "double-barreled

40Jeiferson to Judge Spencer Roane, September 6, 1819, WTJ, 1425-28. 41See Jefferson's draft of his first annual message to Congress, "First Annual

Message," 8 December 1801, Library of Congress, Thomas Jefferson Papers Series 1, General Correspondence, 1651-1827.

42Philip A. Hamburger, "Revolution and Judicial Review: Chief Justice Holt's

Opinion in City of London v. Wood," Columbia Law Review 94: 7 (1994): 2091-2153.




prosecution" under the Alien and Sedition Acts because his citizenship was questionable and because he was the author of the rabidly partisan opposition newspaper, the Aurora. Because Jefferson allowed prosecution of Duane under the Sedition Acts to expire, the libel suit was another way for Federalists to bring Duane's citizenship under scrutiny by way of the Alien Act. Indeed, it was Duane's legal troubles, combined with that of Callender, that prompted Jefferson to compose a public explanation of his doctrine of coordinate review in an early version of his first annual message. To be sure, Jefferson ultimately did not pardon Duane's contempt charge, nor did he deliver the explanation of coordinate review in his message to Congress. The point here is that the Duane example illustrates not only a case when

Congress and the courts reached different conclusions, but also of when a pre sident refused to execute a law because he thought it unconstitutional.4 As we will see, what makes coordinate review so attractive to Jefferson is the place it leaves for executive discretion.

To further explain coordinate review, Jefferson compared it to another kind of review, legislative exclusivity. As he put it, some unnamed "men" of "judg ment and information" believed the "legislature alone is the exclusive expounder of the sense of the constitution, in every part of it whatever." Strangely, and for the only time in his vast writings, Jefferson went on to expli citly describe the political understanding of the impeachment power. As he put it, the supporters of the doctrine of legislative exclusivity "allege in its support, that this branch has authority to impeach and punish a member of either of the others acting contrary to its declaration of the sense of the consti tution." Importantly, Jefferson praised the doctrine for its "safety" and endorsed it as preferable to judicial review: "Between these two doctrines [legislative exclusivity and coordinate review], every one has a right to choose, and I know of no third meriting any respect." His praise notwith standing, Jefferson credited this idea to other men and noted that the doctrine of legislative exclusivity was distinct from coordinate review, the doctrine he believed to be "sound." In light of the illustrations Jefferson chose to explain his principle, his association of legislative exclusivity and the political under standing of impeachment deserves more attention. Although legislative exclusivity is an improvement over judicial finality in

that it would allow political calculation through the electoral process to

43On Smith, see George C. Rogers, Evolution of a Federalist: William Loughton Smith

of Charleston, 1758-1812 (Columbia, SC: University of South Carolina Press, 1962), 169-71. On Duane, see Kim Tousley Phillips, William Duane, Radical Journalist in the

Age of Jefferson (New York: Garland, 1989), 124-30, and William Duane to Jefferson, 10 June 1801, Library of Congress, Thomas Jefferson Papers Series 1, General

Correspondence, 1651-1827. It is also worth noting that during the contested election

of 1800, Duane had been instrumental in publicizing Federalist plans to make someone other than Jefferson president. Jerry W. Knudson, Jefferson and the Press: Crucible of Liberty (Columbia, SC: University of South Carolina Press, 2006), 16-18.




influence the law, it resembles its judicial rival in that it underestimates the centrality of action in executing the law. As Jefferson put it in an 1807 letter to the governor of Virginia, laws sometimes have to be improved by execution in that a just construction must sometimes be a "freer construction" improved by the "ingenuity" of the executive who brings action to the law and therefore must reconcile the law with nature.44 Because nature and the law require different rules, at least in cases "where no private right stands in the way," justice would sometimes have to rise above the original intent of the legislator. This is to say that legislative exclusivity, like judicial finality, is deficient insofar as it forgets the place for executive interpretation. So too with impeachments. Like the flawed theories of interpretation, the legal and politi cal understandings of impeachment fail to appreciate the particular character the executive brings to the law. This is to say that the legislative branch cannot be trusted with so dangerous a power and instead must be assisted by the executive, who, like judges, will be more aware of the difficulties of law enfor cement. Seen as another aspect of coordinate review, impeachment would improve the interpretation of the law by bringing another perspective - or, to borrow the language of The Federalist, another will - to the law. Given the question of Jefferson's partisanship, it is important to note that

Jefferson's commitment to coordinate review is not easily reduced to his con cerns about the Federalist judiciary. He had elaborated his alternative to judi cial review before Marbury, that is, before it was clear that the judiciary would be a partisan opponent. In an undelivered draft of his First Annual message, Jefferson declared the Sedition Act a "nullity" on the basis of coordinate review. And, if David Mayer is correct, Jefferson had arrived at this theory by 1797, even before he became president and his party captured Congress.T5 More important, Jefferson's letter to Torrance, with its implied rejection of

legislative supremacy and of the political understanding of impeachment, corresponds with his earlier attempts at crafting a constitution for Virginia. In his 1776 constitution, he proposed that judges be "removable for misbeha vior" by a court of appeals but that such misbehavior be defined by "crimes"

"precisely defined by the Legislature" and that punishment be "previously prescribed."46 Jefferson's concern for precision in the definition of crimes is noteworthy, for his fellow Virginians decided on a broader "maladministra tion" standard. But, in 1783, Jefferson - who had had his own brush with

impeachment as governor of Virginia - proposed a new constitution because, as he explained, the legislative branch had obliterated separation of powers. Curiously, although Jefferson's stated concern was legislative

44Jefferson to William H. Cabell, 11 August 1807, The Thomas Jefferson Papers, Series I, General Correspondence, 1651-1827, Library of Congress.

45Mayer, Constitutional Thought, 263. 46An extract of a 1776 letter from Jefferson to Wythe calls for judicial independence

and life terms, but Boyd says the letter is suspicious in that it first appeared in Federalist newspapers in 1803. PTJ, 1:410.




tyranny, he qualified judicial tenure - judges would serve for "good behavior or the existence of their court" - and proposed a more open impeachment process: a "court of Impeachments" would be comprised of three members from each of the three departments of government, and "Before this court any one member of the three branches of government may impeach any member of the other two for any cause sufficient to remove him from his office."47 Moreover, Jefferson changed the kind of punishment to accompany impeachment. In place of the 1776 language about "certain and determinate pains" available in previously defined laws, Jefferson in 1783 proposed that the "the only sentence they shall have authority to pass shall be that of depri vation and future incapacity of office." The change confirms that even though he was concerned about a tyrannical legislative branch, Jefferson had by this time separated the impeachment process from the criminal: "The offenses cognisable by this court shall be cognisable by no other, and they shall be judges of fact as well as law." Because one's capacity to continue in office would be a political matter, the court would not be allowed to inflict dispro portionate punishment on those who had fallen out of favor with two of the three departments of government. To check the overbearing legislative branch, he proposed a coordinate theory of impeachments by inviting the executive power to take part.

Jefferson's transition to a more open impeachment process corresponds with his more well-known proposal in 1783 that a new constitutional conven tion be called whenever two-thirds of two of three departments asked for it.48 This innovation was meant to solve the problem of legislative domination in that the executive and judicial departments would be able to join forces, call a new constitutional convention, and find a remedy for the problem. Like the plan for frequent appeals to the public, Jefferson's plan for impeachments was an invitation for political conflict and a rejection of strictly legal resolutions of constitutional impropriety. Jefferson seemed to have meant to encourage impeachments by allowing each department to initiate and participate in the process. Knowing that at least one-third of the impeachment court would be receptive to its claims, each department would be more confident, and assertive, in bringing charges against another. Indeed, it was this political incentive that caught Madison's disapproving eye and prompted the remark quoted at the beginning of this paper. As Madison put it, "The 2 great desi derata in a Court of impeachments. are 1. impartiality. 2. respectability. the first in order to a right. the second in order to a satisfactory decision." The problem with Jefferson's solution was that combining accuser and judge "seems not to square with reason." Specifically, Madison objected to taking so much of the power away from the legislative branch: with the executive and judiciary together holding two-thirds of the powers to try, "too much

47Jefferson, Proposed Constitution for Virginia, PTJ, 1:361-62; 6:301.

48Jefferson, PTJ, 6:304.




might depend on a combination of these departments." Accordingly, Madison recommended that two-thirds of the impeachment court be com prised of members from the Senate, with the other third drawn from the branch not bringing charges of impeachment. Under Madison's alternative, impeachment trials would be less political because the accuser would also not be judge.49

In light of this very public difference between Madison and Jefferson, Jefferson's letters in retirement confirm that the partisan war with the judi ciary might have influenced Jefferson's views on judicial responsibility, but they also reveal that from 1783 onward Jefferson never wavered from

wanting the executive's participation in the impeachment process. During the Pickering impeachment trial in 1804, if William Plumer's diary is to be trusted, Jefferson advocated an amendment giving the president the power to remove "on application from Congress."50 Then, in 1807, when John

Marshall orchestrated the acquittal of Aaron Burr on charges of treason, Jefferson said that he would "rejoice" in the injustice if it brought about "any useful amendment of the Constitution" regarding the tenure of federal judges.51 In retirement, Jefferson continued his campaign against the judiciary by recommending that judges have fixed terms but be eligible for reappointment by the approval of president and both houses of Congress. Even during his 1798 efforts to confine the scope of impeachment, he explained (in the letter cited above as evidence of Jefferson's partisanship) that his object was to "lessen the dangers of the court of impeachment under its present form & to induce dispositions in all parties in favor of a better con stituted court of impeachment."52 To summarize, Jefferson modified his 1803 position (impeachment on address) to the 1807 and 1820 presumption against lifetime tenure, but he retained the idea - dating back to the 1783 proposal for a board of impeachments - that the executive should be involved.

Seen as a part of a larger project regarding coordinate review, then, Jefferson's letter to Torrance both supports and corrects the accounts conclud ing that Jefferson had doubts about the removal of Chase. Because the letter to Torrance reveals that Jefferson associated legislative exclusivity with the pol itical understanding of impeachment, it indicates Jefferson had reason to root against a guilty verdict. At the same time, however, the argument here casts

doubt on those going as far as to conclude that Jefferson wanted to preserve judicial independence. For some of the Framers, as Robert Scigliano has

argued, the design of the Constitution imagined "two executives," the executive and the judiciary, with each responsible for an aspect of law

49James Madison, "Observations on Jefferson's Draft of a Constitution for Virginia," 15 October 1788, PTJ, 6:313-14.

50William Plumer, William Plumer's Memorandum of the United States Senate, 1803-1807, ed. Everett Somerville Brown (New York: Macmillan, 1923), 102.

51Jefferson to William Branch Giles, 20 April 1807, Ford, 9: 46.

52Jefferson to Henry Tazewell, 27 January 1798, PTJ, 30:58-59.




enforcement.53 But more than sharing this function of government, the two executives would form an alliance against the legislative branch. It is possible that Jefferson constructed his theory of coordinate impeachments by continu ing and transforming this logic of two executives.

Impeachment and Executive Power

Even if the letter to Torrance and the argument presented here reveal some thing about how Jefferson would improve the impeachment of judges,

what does it say about the impeachment of executives? A possible answer is that Jefferson believed that the impeachment of executives would benefit by improving the body asked to act as judge in an impeachment trial. This is to say that Jefferson's coordinate theory of impeachment acknowledged that the public would have to be made competent to judge constitutional conflict, even as it presumed that appeals to the people would be better than technical debates in Congress and the courts. The importance of the quality of public judgment can be better understood

by considering one possible cause of impeachment, executive prerogative. Like his several assertions of coordinate review, Jefferson presented in private his understanding of an "extraconstitutional" executive prerogative.54 As I have argued elsewhere, Jefferson offered such explanations in order to defend an executive who had taken action, or was preparing to act, outside the law during times of great necessity or perhaps even great opportunity.55 The formula was the same: officers in "high trust" would sometimes have to act according to the purpose rather than the letter of the law, partly because, unlike judges, they would be called upon to act quickly. By acting outside the law, they risked themselves, but had to because they had been placed in a high trust. Part of that trust included the requirement that they explain their actions to the people rather than obscuring it with legal argumentation, and it is this requirement that distinguished extraconstitutional from consti tutional prerogative. According to the latter understanding, it is safer to con stitutionalize executive prerogative in order to bring executive discretion under the rule of law, but because the law must remain incomplete with

regard to execution, the constitution must confer the power to go beyond it to the executive. The tension between the two understandings of the constitutionality of pre

rogative bears similarity to that between the two understandings regarding

53Robert Scigliano, "The Presidency and the Judiciary," in The Presidency in the Political Order, 3rd ed., ed. Michael Nelson, (Washington, DC: CQ Press, 1990).

54Jefferson to John Colvin, September 20, 1810, WTJ, 1231-4; Jefferson to William H. Cabell, August 11, 1807, and "Message to Congress," January 13, 1806 in Thomas

Jefferson Papers Series 1. 1651-1827.

55Bailey, Thomas Jefferson and Executive Power, 15-24, 42-64, 242-58.




impeachment. The constitutional understanding of prerogative and the legal understanding of impeachment are alike in that each looks to the law and away from the people during moments of necessity. In so doing, both offer clarity in the form of expert opinion to temper what would otherwise be the unchecked passions or interests of the majority. The extraconstitutional understanding of prerogative, like the political understanding of impeach ment, sees the law and necessity as fundamentally irreconcilable and instead looks to congressional judgment and, finally, to the public for judg

ment as to whether an action accords with the public good. Further, because Jefferson's extraconstitutional understanding of prerogative included the requirement of an appeal to the people in place of constitutional argu

ment, it would seem that his understanding would require a vigorous impeachment power. That is, because it directs the judgment of prerogative to the question of the public good and away from the law, it would seem that Jefferson's understanding of prerogative would fit best with political understanding of impeachment. Why, then, did he distance himself from that understanding in the letter to Torrance?

The question of public judgment of actions on behalf of the public good helps resolve this problem. Consider John Locke. In the Second Treatise, Locke undermined the argument for kingly authority by elaborating the doc trine of consent and connecting the right of resistance to self-preservation. Though Locke attempted to bring monarchy under the rule of the legislative branch, he conceded that the rule of law would have to be modified because "Things of this World are in so constant a Flux." Specifically, because legisla tive bodies would not always be "in being," the executive would have to sometimes resort to prerogative, which is the power to act in the silence of the law or sometimes against it for the public good. This is not to say that pre rogative was the rightful prerogative of the executive, for the people would have to decide whether it had been used in their good. Here, Locke seemed to say that the people would have little problem judging whether prerogative had been used for their good, but, as Benjamin A. Kleinerman has argued, Locke also indicated he doubted that the people would notice unlawful executive acts "beyond that which immediately touches them."56 To put it in the language of the Declaration of Independence, the problem is that "all Experience hath shewn that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves."

As revealed in the Declaration, Jefferson also noticed that people have a hard time judging, but Jefferson's understanding of impeachment shows

56John Locke, Two Treatises of Government, student edition, ed. Peter Laslett

(New York: Cambridge University Press, 1988) 372-9; Benjamin A. Kleinerman, "Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the

Constitutional Frame in Locke's Second Treatise," American Political Science Review

101: 2 (2007): 217.




where he improved on Locke in two ways. First, if Kleinerman is correct, Locke suspected that executives would seek to maintain the appearance of the public good in order to make their actions less visible to the people, so Locke constructed the argument for an "original Constitution" to provide legislators and others in the opposition with the means to instruct the people concerning the executive's lawlessness. But Jefferson feared that execu tives and their agents could blur the use of prerogative by interpreting this constitution to correspond to their actions. Second, Jefferson also noticed that the defect in judgment could work in the other direction in that the people would use the wrong standard to judge prerogative. As he put it, the people will tend to judge prerogative on the basis of facts that were unknown to the executive when he acted, thus unfairly replacing motive with result. Hence Jefferson, whose activities as wartime governor had been the subject of a legislative inquiry, noted that the prerogative power was difficult because it was "embarrassing."57 As a result, those called to high trust would be unwilling to undertake great objects on behalf of the public good. For the people to be able to want to judge, and judge correctly, the people would have to be simultaneously awakened and educated.

For Jefferson, then, the educative dilemma of prerogative is why the execu tive should be involved in the impeachment process. Jefferson recognized that impeachment was a "farce" precisely not only because, on the one hand, it

would rarely be used but because, on the other, it grew out of legislative aspirations for finality in interpreting the law. If the legislature alone could impeach and remove an officer whenever it disagreed with the officer's activi ties, political judgment would simply become another kind of technical legal ism: legislative modification could replace judicial hairsplitting, but it would be equally invisible to popular judgment. Executive participation, by contrast, would democratize the political understanding of impeachments. Because the executive brings with him an executive understanding of interpretation, not to mention sympathy for the embarrassing requirements of political life, he

would bring impartiality to the process by softening the legislature's lawyerly attempts to preserve their own handiwork. Because the public would be more aware of the executive's own activities, executive participation would enliven and nationalize impeachment by publicizing it. Because of the executive's smallness in number, he would bring accountability to executive decision making and thus render contingency compatible with consent.

By improving the public's ability to understand the kinds of questions that would be brought up by impeachment, executive participation would improve the impeachment of judges but also of executives. By pointing to the question of the public good, rather than to the meaning of the law, execu tive involvement would provide the people with a more practical, and more realistic, way to judge executive discretion. Because such extraconstitutional

57Jefferson to Colvin, WTJ, 1231.




discretion need not be limited to instances of self-preservation, and could be expanded to include the public good, the people would be provided with a more flexible way to judge what would otherwise be beyond their compe tence and perhaps their interest. By elevating the people's understanding of

motive, Jefferson's coordinate theory of impeachments would provide a more realistic understanding of "abuse of office." By inviting and even demanding examination, instead of obscuring it with legalese, executive par ticipation would humble the executive even as it provided a way for it to defend itself. By pricking the attention of the people, who too rarely rise up against tyrants, and by emboldening legislators, it would make impeachment more likely. By broadening impeachment and pointing the people to ques tions of the public good, executive participation would itself provide a check on executive prerogative.

The Chase "Precedent"

Even as it challenges the two understandings of impeachment under the Constitution, Jefferson's understanding of impeachment calls our attention to the way the question of the incompleteness of the law made its way into Chase's trial in the Senate. As Whittington has argued, Articles Three and Four - which received a majority of votes in the Senate and the most support in the House - show that the impeachment debate was about more than judicial independence. Specifically, these articles pointed to the fact that Chase had denied Callender's defense the opportunity to argue that the Sedition Act was unconstitutional. The point was not that judges should stay away from the political arena, but rather that Chase had pre vented other political actors from entering the constitutional area.58 In the presumption that juries should be allowed to consider the constitutionality of the Sedition Act, Articles Three and Four were constructed to deny judges a political monopoly on constitutional interpretation. Accordingly, Chase's lawyers warned that dangerous radicalism lurked behind the Republican understanding of juries, because jurors - men of the "corn fields," "tobacco plantations," and "the plough and hoe" - had "total ignor ance of the law" and would be swayed by local rather than national interests.59 If jurors were allowed to consider the constitutionality of laws, then the Constitution would be consumed by the instability incident to repub lican government.

Predictably, House Republicans characterized Federalist arguments as elitist, but somewhat less predictably, also as naive. On the first, House man

agers argued that the Federalist attempt to find a technical definition of high crimes and misdemeanors grew out of their efforts to protect "a distinction

58Whittington, Constitutional Construction, 54-57.

59Annals of Congress, 8th Cong., 2nd Sess., 452-53, 469-70, 501.




between gentleman and simple-men."60 But Republicans used this standard partisan argument to make a more subtle one: just as the distinctions between gentlemen and the simple are inevitably arbitrary, the foundation for judicial exclusivity is flimsy in that it rests on the false presumption that the law can be sufficient for every contingency of political life. For Joseph

Nicholson (the House manager whose attention was called to Chase by Jefferson), the insistence that impeachment be for an indictable offense ignored the fact that no Congress could ever define in advance every act that would be indictable. Accordingly, the Federalist insistence on technical law was doomed to fail because "a code of laws never did and never can exist, in which all the human offenses are defined."61 Instead of wishing for perfect law, it was better to rely on the judgment of the people:

The law of good behaviour is the law of truth and justice. It is confined to no soil and no climate. It is written on the heart of man in indelible char acters, by the hand of his Creator, and is known and felt by every human being. He who violates it violates the first principles of law.62

To Nicholson's assessment that the law can never be perfect, Caesar Rodney added that judges will participate in politics in order to be promoted by a sitting president, and John Randolph pointed out that juries will decide ques tions of law even if judges say they cannot, so to separate the "right" from the "power" was unrealistic.63 Impeachment need not be reserved for indictable offenses, indeed it could not, because no set of laws would be able to list in advance every offense that should be indictable, and because no jury would ever think otherwise.

This more surprising Republican argument about the imperfection in the law confirms and extends Whittington's argument that the conventional understanding of the Chase acquittal (that it preserved the independence of the judiciary) is inadequate. Alongside all the debates about impeachable offenses was a disagreement over who would be able to resolve the imperfec tions inherent in the Constitution, indeed in any constitution. By opening a path to the interpretation of laws by juries, Articles Three and Four challenged the doctrine of legislative exclusivity even as they denied judicial finality. Prompted by Jefferson, Nicholson and the House managers had forced Republican senators to consider the choice between constitutional

60The quote about simple men is from Randolph, Annals of Congress, 8th Cong., 2nd Sess., 659.

61 Annals of Congress, 8th Cong., 2nd Sess., 567; and Whittington, Constitutional Construction, 54.

62 Annals of Congress, 8th Cong., 2nd Sess., 567.

63Annals of Congress, 8th Cong., 2nd Sess., 587 and 655. Curiously, Randolph sup ported this argument with the example of Congress's powers under the "necessary and proper" clause.




and extraconstitutional solutions to the problem of the imperfection of the law. More than shedding light on the Chase precedent, Jefferson's constitutional

thought and action speaks to our constitutional practice. Today, there is a con sensus that the impeachment process under the U.S. Constitution is unwieldy, riddled with uncertainty, and likely to precipitate a constitutional crisis.64 As we have seen, the source of this problem is the irresolvable difference between the political and the legal understandings of the scope of impeachment under the Constitution. In addition to the confusion arising from the text and history of the Constitution, the fundamental problem is that the two understandings are inextricably associated with their functional consequences. The legal understanding aims at judicial independence and perhaps judicial finality, while the political understanding suggests a place for legislative interpret ation of the law and thus leans toward legislative supremacy. From Jefferson's perspective, we see that each understanding will be incomplete as long as it forgets the place for executive interpretation. To implement Jefferson's understanding, we might allow the president to initiate impeach ment proceedings against members of the two other departments. Alternatively, and following the 1783 version of his proposal, we might create a board comprised of members from each department to try impeach ments brought by the House or, to combine both possibilities, any of the other departments. Either alternative would inspirit the impeachment process with the executive's approach to law and politics. But a more immediate reason to revisit Jefferson is that his understanding

of impeachment challenges the more dominant, but unworkable, understand ing in current political practice. Even if Jefferson's recommendations for executive participation are too radical to survive the amendment process, his expansive view of impeachment can assist those who wish to broaden our understanding, and our use, of the impeachment power.

64Richard A. Posner, An Affair of State: The Investigation, Impeachment and Trial of President Clinton (Cambridge, MA: Harvard University Press, 1999); Bruce A. Ackerman, The Case Against Lameduck Impeachment (New York: Seven Stories

Press, 1999). But see Keith Whittington, "Yet Another Constitutional Crisis?" William and Mary Law Review, 43 (2002): 2093.



Constitutionalism, Conflict, and Consent: Jefferson on the Impeachment Power

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