Working Paper No. 08-36:
Impeachment, Attainder, and a True Constitutional Crisis: Lessons from the Strafford Trial
Date Posted: June 2008
Abstract (below) | Full text (most recent) on SSRN
In the months that preceded President Clinton’s impeachment trial, observers in the media breathlessly reported the so-called “death struggle” between the President and Kenneth Starr. Distinguished academic commentators, such as Ronald Dworkin and Arthur Schlesinger, Jr., were equally overheated in their rhetoric, predicting that the President’s impeachment would shred the American constitutional fabric. Of course, Clinton was impeached, with no discernible unraveling of the regime. The immediate political stakes were high, to be sure, and both sides fought with energy—as a minor participant in the struggle, I can attest to that. But no lives, and very few persons’ liberty, were ever in jeopardy and, contra Dworkin and Schlesinger, the U.S. Constitution was safe throughout the ordeal. The impeachment trial of a sitting president is always a “crisis,” at least in the sense that it may herald a transfer of power. But in that sense every presidential election could equally be called a crisis.
There are crises, and then there are constitutional crises. For an illustration of the latter, let us retreat to the 1641 impeachment trial of King Charles I’s principal advisor, Thomas Wentworth, the Earl of Strafford. At stake in Strafford’s trial was nothing less than the future of English constitutionalism and limited monarchy: Would the Stuart kings enlarge the powers of the monarchy along French lines or would Parliament preserve, and even expand, its own powers and privileges? And, on a more personal level, whose head would fall—Strafford’s or that of his principal antagonist in the House of Commons, John Pym?
It was the stuff of riveting drama: The King attended every day of the month-long trial, crowds gathered each day to witness Strafford’s arrival in Westminster, and the city erupted in violence. Contrast this with the waning interest in the Lewinsky affair by the time of the Clinton impeachment trial in the United States Senate. One of the first lessons from history is that not every political crisis raises fundamental issues. I think it fair to conclude or simply posit that a constitutional crisis may be expected to excite widespread interest outside the academy. If this is accurate, an impeachment trial that sets off an avalanche of law review articles, but garners fewer than ten million television viewers, is not a constitutional crisis.