House Democrats ask Trump to testify at his impeachment trial

[stevenl]

6 minutes ago, cmarshall said:

 

Here is the Wikipedia account:

 

Starting on April 5, 1876, Belknap was tried by the Senate.[88] For several weeks Senators argued over whether the Senate had jurisdiction to put Belknap on trial since he had already resigned office in March.[89] Belknap's defense managers argued that the Senate had no jurisdiction;[89] the Senate ruled by a vote of 37–29 that it did.[89][90] Belknap was charged with five articles of impeachment, and the Senate listened to over 40 witnesses.[3] With 40 votes needed for conviction, the Senate voted 35 to 25 to convict Belknap, with one Senator not voting, thus acquitting Belknap of all charges by failing to reach the required two-thirds majority.[3][89][91] All Senators agreed that Belknap took the money from Marsh, but 23 who voted for acquittal believed that the Senate did not have jurisdiction.

 

https://en.wikipedia.org/wiki/William_W._Belknap#Senate_trial_and_acquittal

 

It hardly makes sense to believe it irrelevant that the reason that the twenty-three senators voted to acquit was because in their opinion the Senate did not have jurisdiction.  No one's opinion as to the constitutionality of the procedure matters more than those of the senators, since  impeachment trials are not subject to review by the Supreme Court or any other body.  So, the only the Senate itself can decide whether its procedure is and is not constitutional.

 

As I pointed out earlier the fact that the Senate voted two different ways on the issue of constitutionality in that case only reinforces the inutility of the case as a precedent.  Even though it was not a majority that held the trial to be unconstitutional, the case was effectively decided on just that basis.

 

But even if the senators had decided unanimously that the Senate lacked jurisdiction in the the case, that judgment would never have attained the force of law that a precedent in the common law legal system normally achieves.  The practices of the Senate do not constitute a body of common law.  The Constitution, unlike the law, is not amended by precedent.  

 

Precedents in both Houses of Congress constitute mere historical inclinations subject to revision or dismissal by those bodies at any time.  Such precedents have as much and as little weight at any time as any Congress chooses to give them.

 

Since the senate had already declared the proceedings legal, the reason given by senators to acquit doesn't change the already decided legality.

[cmarshall]

10 minutes ago, stevenl said:

Since the senate had already declared the proceedings legal, the reason given by senators to acquit doesn't change the already decided legality.

 

Read my subsequent post on the subject.  It is a grave mistake to read any decision of the Senate as constituting a precedent that somehow achieves the force of law similar to a legal precedent in the common law system, which is entirely different.  Put another way, the decision of one historical Senate as to the constitutionality of such a proceeding has no binding effect whatsoever on any subsequent Senate in a similar proceeding.  Therefore, the discussion of precedents is entirely idle.  Nevertheless, the existing precedents do not, as a matter of fact, offer much, if any, support to the notion that the Senate has jurisdiction to try any private citizen, which is flatly contradicted by the Constitution.

Edited February 7, 2021 by cmarshall

[Sujo]

5 minutes ago, stevenl said:

Since the senate had already declared the proceedings legal, the reason given by senators to acquit doesn't change the already decided legality.

Correct. And the preponderance of expert legal scholars agree. 

 

Senators, not being legal experts in that field follow the experts advice, which follows precedence.

 

Unless they are trump supporters.

 

 

Edited February 7, 2021 by Sujo

[placeholder]

6 minutes ago, cmarshall said:

 

Read my subsequent post on the subject.  It is a grave mistake to read any decision of the Senate as constituting a precedent that somehow achieves the force of law similar to a legal precedent in the common law system, which is entirely different.  Put another way, the decision of one historical Senate as to the constitutionality of such a proceeding has no binding whatsoever on any subsequent Senate in a similar proceeding.  Therefore, the discussion of precedents is entirely idle.  Nevertheless, the existing precedents do not, as a matter of fact, offer much, if any, support to the notion that the Senate has jurisdiction to try any private citizen, which is flatly contradicted by the Constitution.

On the one hand, you claim, quite correctly, that the any one Senate is not bound by the impeachment decisions of an earlier Senate's stand regarding the constitutionality of this brand of impeachment. That is only possible of the Constitution is not clear on the question. Had the Constitution writtten words to the effect that a person no longer holding office cannot be impeached and tried, you would have a point. But it isn't, so you don't.

 

What's more, a distinguished and politically conservative scholar named Keith Whittington had an op ed in the wall street journal entitles

Yes, the Senate Can Try Trump

"For the Founders, it would have been obvious that the “power to impeach” included the ability to hold former officials to account. The impeachment power was imported to America from England, where Parliament impeached only two men during the 18th century, both former officers. No U.S. state constitution limited impeachments to sitting officers, and some allowed impeachment only of former officers."

https://www.wsj.com/articles/yes-the-senate-can-try-trump-11611356881

The article goes on to say that Thomas Jefferson was subjected to an impeachment inquiry in 1781 after he left office.

[Sujo]

18 minutes ago, placeholder said:

On the one hand, you claim, quite correctly, that the any one Senate is not bound by the impeachment decisions of an earlier Senate's stand regarding the constitutionality of this brand of impeachment. That is only possible of the Constitution is not clear on the question. Had the Constitution writtten words to the effect that a person no longer holding office cannot be impeached and tried, you would have a point. But it isn't, so you don't.

 

What's more, a distinguished and politically conservative scholar named Keith Whittington had an op ed in the wall street journal entitles

Yes, the Senate Can Try Trump

"For the Founders, it would have been obvious that the “power to impeach” included the ability to hold former officials to account. The impeachment power was imported to America from England, where Parliament impeached only two men during the 18th century, both former officers. No U.S. state constitution limited impeachments to sitting officers, and some allowed impeachment only of former officers."

https://www.wsj.com/articles/yes-the-senate-can-try-trump-11611356881

The article goes on to say that Thomas Jefferson was subjected to an impeachment inquiry in 1781 after he left office.

Indeed. Some read words, but the intent is what is important.

 

What was the intent of the authors, even though it was so long ago they could not cover every conceivable base. Thats why there are amendments to it.

 

The part where a person can be barred from further office was essentially to cover the point. Thats what the preponderance of legal scholars think.

 

Even if trump was still in office republicans would still not convict him. Thats what they have become.

 

Repubs will focus on the legality, but dems will lambast them with tweets.

[Sujo]

This is an excellent article on the thought process of the framers of the constitution. Which they were following the british process which involved an impeachment in india at that time.

 

Note it also states its solely up to the senate on whether they can or not and the court will not get involved. So if the senate says it can then it can.

 

https://www.vox.com/22242411/trump-impeachment-constitution-senate-trial-conviction-disqualify-william-belknap

[doggie1955]

On 2/5/2021 at 5:48 AM, simple1 said:

trump has refused to testify.

 

https://au.news.yahoo.com/trump-refuses-testify-unconstitutional-impeachment-222833309.html

And why should he??? He did not do anything!!!

[Scott]

Post with an unapproved source removed. 

 

[simple1]

4 hours ago, doggie1955 said:

And why should he??? He did not do anything!!!

Seriously, trump didn't do any thing - Lol. For sure the republican senators will again breach their Oath of Office. Republican voter support for trump is trending downwards, let's see how trump supporting senators track after mid term elections when the tacts concerning the outcomes of presidency come into clearer focus e.g.$520 million minimum cost to the taxpayer with his asinine legal actions and so on during his last weeks in Office, plus of course ripping off his donors for millions of dollars.

[cmarshall]

9 hours ago, placeholder said:

On the one hand, you claim, quite correctly, that the any one Senate is not bound by the impeachment decisions of an earlier Senate's stand regarding the constitutionality of this brand of impeachment. That is only possible of the Constitution is not clear on the question. Had the Constitution writtten words to the effect that a person no longer holding office cannot be impeached and tried, you would have a point. But it isn't, so you don't.

 

What's more, a distinguished and politically conservative scholar named Keith Whittington had an op ed in the wall street journal entitles

Yes, the Senate Can Try Trump

"For the Founders, it would have been obvious that the “power to impeach” included the ability to hold former officials to account. The impeachment power was imported to America from England, where Parliament impeached only two men during the 18th century, both former officers. No U.S. state constitution limited impeachments to sitting officers, and some allowed impeachment only of former officers."

https://www.wsj.com/articles/yes-the-senate-can-try-trump-11611356881

The article goes on to say that Thomas Jefferson was subjected to an impeachment inquiry in 1781 after he left office.

 

Citing contrary opinions of legal scholars will not settle the question, because, as we both know, there are qualified opinions on both sides of the issue.

 

Your view of the Constitution is naive.  It is an eight thousand word outline of the plan of government, the details of which have subsequently been elucidate by the laws and then further by the regulations of the departments of government.  There are many lacunae, the meaning of some of which is still disputed while others are regarded as settled.  The objection you raise is without merit, because the text of the Impeachment Clause makes clear that the purpose of the impeachment power was to enable the removal of a president presumably to protect the Republic from abuse of power.  

 

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

 

From which it is clear that the sole purpose of the impeachment process is to remove the president, not to punish the president for breaking the law.  That clause explicitly identifies the president, vice president, and all civil officers as the sole class subject to impeachment and removal.  

 

  You and others are profoundly in error to apply the standard that any action not explicitly forbidden to the Congress is permitted.  Just the opposite is true.

 

You and the WSJ writer also fail to understand the differences between impeachment in the English Parliament and under the US Constitution, which are profound despite a partially shared history.  The impeachment power in the Constitution explicitly applies to the president, while the English king could never be impeached.  Also, while sovereignty under the Constitution resides in the people who delegate authority to govern by elections, under the English Constitution Parliament is sovereign.  One important implication of that difference is that the legislative and judicial branches, which are separate in the US, are united in the Parliament.  So, until about fifteen years ago when for the first time a Supreme Court of the United Kingdom was established, the highest appellate court in the country consisted of a group of members of the House of Lords called the Law Lords.  It is because of this substantial difference that impeachments under the English system could and did include criminal punishment.  And because removal from office and criminal punishment were combined under impeachments in Parliament, impeachment could logically be applied even after the accused no longer held office.

 

But the Framers explicitly excluded this practice, instead delegating criminal punishment to the criminal justice system not impeachments of Congress.

 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

 

Therefore, English precedents of impeachment are of limited value in interpreting the US Constitution.

Edited February 8, 2021 by cmarshall

[placeholder]

15 minutes ago, cmarshall said:

 

Citing contrary opinions of legal scholars will not settle the question, because, as we both know, there are qualified opinions on both sides of the issue.

 

Your view of the Constitution is naive.  It is an eight thousand word outline of the plan of government, the details of which have subsequently been elucidate by the laws and then further by the regulations of the departments of government.  There are many lacunae, the meaning of some of which is still disputed while others are regarded as settled.  The objection you raise is without merit, because the text of the Impeachment Clause makes clear that the purpose of the impeachment power was to enable the removal of a president presumably to protect the Republic from abuse of power.  

 

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

 

From which it is clear that the sole purpose of the impeachment process is to remove the president, not to punish the president for breaking the law.  That clause explicitly identifies the president, vice president, and all civil officers as the sole class subject to impeachment and removal.  

 

  You and others are profoundly in error to apply the standard that any action not explicitly forbidden to the Congress is permitted.  Just the opposite is true.

 

You and the WSJ writer also fail to understand the differences between impeachment in the English Parliament and under the US Constitution, which are profound despite a partially shared history.  The impeachment power in the Constitution explicitly applies to the president, while the English king could never be impeached.  Also, while sovereignty under the Constitution resides in the people who delegate authority to govern by elections, under the English Constitution Parliament is sovereign.  One important implication of that difference is that the legislative and judicial branches, which are separate in the US, are united in the Parliament.  So, until about fifteen years ago when for the first time a Supreme Court of the United Kingdom was established, the highest appellate court in the country consisted of a group of members of the House of Lords called the Law Lords.  It is because of this substantial difference that impeachments under the English system could and did include criminal punishment.  And it is for this reason that the Framers explicitly excluded this practice:

 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

 

Therefore, English precedents of impeachment are of limited value in interpreting the US Constitution.

As the op ed by Whittington pointed out, before the Constitution was created, ex government officials in the states where there was a governor and a separate legislature, were subject to impeachment.

[placeholder]

Breaking With G.O.P., Top Conservative Lawyer Says Trump Can Stand Trial

One of Washington’s leading conservative constitutional lawyers publicly broke on Sunday with the main Republican argument against convicting former President Donald J. Trump in his impeachment trial, asserting that an ex-president can indeed be tried for high crimes and misdemeanors.

 In an opinion piece posted on the Wall Street Journal's website, the lawyer, Charles J. Cooper, who is closely allied with top Republicans in Congress, dismissed as illogical the claim that it is unconstitutional to hold an impeachment trial for a former president...

He argued that because the Constitution allows the Senate to bar officials convicted of impeachable offenses from holding public office again in the future, “it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders.”

https://www.nytimes.com/2021/02/07/us/politics/charles-cooper-trump-impeachment.html

[cmarshall]

3 minutes ago, placeholder said:

As the op ed by Whittington pointed out, before the Constitution was created, ex government officials in the states where there was a governor and a separate legislature, were subject to impeachment.

 

I refer you to the book "The Framer's Coup" by historian Michael Klarman about the writing of the Constitution and the considerable extent to which the motivation to overthrow the Articles of Confederation with an entirely new (and unauthorized) Constitution with a much stronger national government was driven just by the alarm with which the propertied class viewed the "excessively democratic" constitutions of the Confederation states.  Far from incorporating the features of the state constitutions the Framers strove to disable them even going so far as to propose that the Congress could invalidate any law passed by a state legislature, which did not make it into the final version of the Constitution only because they knew it would make ratification impossible.  

 

The Framers also looked longingly at lifetime tenure for senators and maybe even the president, but didn't think they would get away with that either.

 

 

[placeholder]

6 minutes ago, cmarshall said:

 

I refer you to the book "The Framer's Coup" by historian Michael Klarman about the writing of the Constitution and the considerable extent to which the motivation to overthrow the Articles of Confederation with an entirely new (and unauthorized) Constitution with a much stronger national government was driven just by the alarm with which the propertied class viewed the "excessively democratic" constitutions of the Confederation states.  Far from incorporating the features of the state constitutions the Framers strove to disable them even going so far as to propose that the Congress could invalidate any law passed by a state legislature, which did not make it into the final version of the Constitution only because they knew it would make ratification impossible.  

 

The Framers also looked longingly at lifetime tenure for senators and maybe even the president, but didn't think they would get away with that either.

Since it was the case at the time that impeachment was not restricted only to current govt. officials, in the absence of an explicit prohibition, the point you raise is dubious.

[cmarshall]

3 minutes ago, placeholder said:

Since it was the case at the time that impeachment was not restricted only to current govt. officials, in the absence of an explicit prohibition, the point you raise is dubious.

 

Are you confusing US impeachments with the British version?  The example I cited of impeaching former office holders in Parliament arose, because of the possibility of imposing criminal penalties under the English Constitution, which is mostly unwritten and therefore which does not turn on the interpretation of a textual constitution.  

 

Since the US Constitution specifically identifies the president, vice president, and other civil officers as the sole class subject to Congressional impeachment and since in any case criminal penalties arising from impeachment are specifically excluded by the Constitution, you case holds no water unless you think that cases in the English Parliament prior to the adoption of the US Constitution are somehow binding on the US Senate.

[placeholder]

Just now, cmarshall said:

 

Are you confusing US impeachments with the British version?  The example I cited of impeaching former office holders in Parliament arose, because of the possibility of imposing criminal penalties under the English Constitution, which is mostly unwritten and therefore which does not turn on the interpretation of a textual constitution.  

 

Since the US Constitution specifically identifies the president, vice president, and other civil officers as the sole class subject to Congressional impeachment and since in any case criminal penalties arising from impeachment are specifically excluded by the Constitution, you case holds no water unless you think that cases in the English Parliament prior to the adoption of the US Constitution are somehow binding on the US Senate.

No, I'm referring to the example of the practice of the states between the end of the Revolutionary War and the establishment of the USA.

[cmarshall]

48 minutes ago, placeholder said:

No, I'm referring to the example of the practice of the states between the end of the Revolutionary War and the establishment of the USA.

 

The Articles of Confederation and Perpetual (sic) Union were in force from 1781 until 1789 when the Constitution was ratified.  The American War of Independence ended with the Treaty of Paris in 1783.

 

I already explained that the constitutions of the Confederation states not only did not serve as models or precedents for the Constitution, but on the contrary it was in reaction to the "excessively democratic" features of the states' constitutions that motivated the Framers to render them ineffectual by creating a strong national government specifically to supersede the state governments and constitutions.  Did you not read that part or did I not make it clear?  

 

For instance, the state constitutions under the Articles provided for short terms for members of Congress such as one year and allowed that members of Congress could be recalled from office by a public vote.  None of the state constitutions allowed for a term of a legislator as long as six years.  The short terms and possibility of recall made the congressmen of the time too susceptible to democratic pressure in the eyes of the Framers.  By contrast, some of the Framers wanted the senators or even the president to have lifetime tenure, but settled for six years and four years.

 

In fact the precipitating factor in calling the Constitutional Convention of 1787 was the issuance of paper currency and passing of measures of debt relief by the Massachusetts legislature following Shays Rebellion (against debt) which failed early in 1787.  The Framers, who were after all the creditor class, were particularly alarmed at those threats to their assets which is why the Constitution expressly forbids the states to "coin money."

 

The constitutions of the various Confederation states have never served as precedents in judicial interpretations of the US Constitution of which I am aware.  If you have examples to the contrary please provide them.

 

I repeat my recommendation to read Klarman's book or similar to gain an understanding the Constitution adequate for the present discussion.

 

Edited February 8, 2021 by cmarshall

[placeholder]

31 minutes ago, cmarshall said:

 

The Articles of Confederation and Perpetual (sic) Union were in force from 1781 until 1789 when the Constitution was ratified.  The American War of Independence ended with the Treaty of Paris in 1783.

 

I already explained that the constitutions of the Confederation states not only did not serve as models or precedents for the Constitution, but on the contrary it was in reaction to the "excessively democratic" features of the states' constitutions that motivated the Framers to render them ineffectual by creating a strong national government specifically to supersede the state governments and constitutions.  Did you not read that part or did I not make it clear?  

 

For instance, the state constitutions under the Articles provided for short terms for members of Congress such as one year and allowed that members of Congress could be recalled from office by a public vote.  None of the state constitutions allowed for a term of a legislator as long as six years.  The short terms and possibility of recall made the congressmen of the time too susceptible to democratic pressure in the eyes of the Framers.  By contrast, some of the Framers wanted the senators or even the president to have lifetime tenure, but settled for six years and four years.

 

In fact the precipitating factor in calling the Constitutional Convention of 1787 was the issuance of paper currency and passing of measures of debt relief by the Massachusetts legislature following Shays Rebellion (against debt) which failed early in 1787.  The Framers, who were after all the creditor class, were particularly alarmed at those threats to their assets which is why the Constitution expressly forbids the states to "coin money."

 

The constitutions of the various Confederation states have never served as precedents in judicial interpretations of the US Constitution of which I am aware.  If you have examples to the contrary please provide them.

 

I repeat my recommendation to read Klarman's book or similar to gain an understanding the Constitution adequate for the present discussion.

 

And I'm referring to the fact that the Constitution does not explicitly prohibit ex officio persons from being impeached. Which would be an odd oversight considering that Jefferson himself was the subject of an impeachment inquiry after his term as governor of Virginia. ended. Whereas the Constitution does explicity forbid the coining of currency.

Edited February 8, 2021 by placeholder

[Sujo]

2 hours ago, cmarshall said:

 

Citing contrary opinions of legal scholars will not settle the question, because, as we both know, there are qualified opinions on both sides of the issue.

 

Your view of the Constitution is naive.  It is an eight thousand word outline of the plan of government, the details of which have subsequently been elucidate by the laws and then further by the regulations of the departments of government.  There are many lacunae, the meaning of some of which is still disputed while others are regarded as settled.  The objection you raise is without merit, because the text of the Impeachment Clause makes clear that the purpose of the impeachment power was to enable the removal of a president presumably to protect the Republic from abuse of power.  

 

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

 

From which it is clear that the sole purpose of the impeachment process is to remove the president, not to punish the president for breaking the law.  That clause explicitly identifies the president, vice president, and all civil officers as the sole class subject to impeachment and removal.  

 

  You and others are profoundly in error to apply the standard that any action not explicitly forbidden to the Congress is permitted.  Just the opposite is true.

 

You and the WSJ writer also fail to understand the differences between impeachment in the English Parliament and under the US Constitution, which are profound despite a partially shared history.  The impeachment power in the Constitution explicitly applies to the president, while the English king could never be impeached.  Also, while sovereignty under the Constitution resides in the people who delegate authority to govern by elections, under the English Constitution Parliament is sovereign.  One important implication of that difference is that the legislative and judicial branches, which are separate in the US, are united in the Parliament.  So, until about fifteen years ago when for the first time a Supreme Court of the United Kingdom was established, the highest appellate court in the country consisted of a group of members of the House of Lords called the Law Lords.  It is because of this substantial difference that impeachments under the English system could and did include criminal punishment.  And because removal from office and criminal punishment were combined under impeachments in Parliament, impeachment could logically be applied even after the accused no longer held office.

 

But the Framers explicitly excluded this practice, instead delegating criminal punishment to the criminal justice system not impeachments of Congress.

 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

 

Therefore, English precedents of impeachment are of limited value in interpreting the US Constitution.

The sole purpose of impeachment is not to remove from office. The constitution is clear on that.

 

you claim your view as fact. It is not, and the preponderance of legal scholars disagree with your interpretation.

[cmarshall]

1 minute ago, placeholder said:

And I'm referring to the fact that the Constitution does not explicitly prohibit ex officio persons from being impeached. Which would be an odd oversight considering that Jefferson himself was the subject of an impeachment inquiry after his term as governor of Virginia. ended. Whereas the Constitution does explicity forbid the coining of currency.

 

The Constitution forbids the states from coining currency.  The Tenth Amendment expressly allows the states to exercise any power allocated to the federal government.  So for the states "what is not forbidden is permitted."  The Framers were highly motivated to prevent the states from issuing paper money that would be legal tender to pay debts for which the Framers and their ilk were likely to be the creditors.

 

Just the opposite is true of the federal government which has no power not allocated to it by the Constitution. So, for the national government "what is not permitted is forbidden."  For example, Lincoln admitted in the First Inaugural that he lacked the power to abolish slavery, because the Constitution did accord that power either to the president or the Congress.  He claimed that the Emancipation Proclamation was only a limited tactical step taken by the Commander-in-Chief against the enemy during wartime.  Therefore, it was necessary to pass the Thirteenth Amendment actually to abolish slavery.

 

If the Senate can extend the scope of the class subject to an impeachment trial to be the president, the vice president, other civil officers, and former such office-holders without authorization from the Constitution, why could they not extend the class to the president, the vice president, other civil officers, former such office-holders and all others aspiring to hold such office?  That extension is not explicitly forbidden the Constitution and according to your theory ought to be permitted.

[Sujo]

20 minutes ago, placeholder said:

And I'm referring to the fact that the Constitution does not explicitly prohibit ex officio persons from being impeached. Which would be an odd oversight considering that Jefferson himself was the subject of an impeachment inquiry after his term as governor of Virginia. ended. Whereas the Constitution does explicity forbid the coining of currency.

Not to mention it is completely up to the senate. No court can overrule its decision. If the senate says it can, it can.

[placeholder]

1 minute ago, cmarshall said:

 

The Constitution forbids the states from coining currency.  The Tenth Amendment expressly allows the states to exercise any power allocated to the federal government.  So for the states "what is not forbidden is permitted."  The Framers were highly motivated to prevent the states from issuing paper money that would be legal tender to pay debts for which the Framers and their ilk were likely to be the creditors.

 

Just the opposite is true of the federal government which has no power not allocated to it by the Constitution. So, for the national government "what is not permitted is forbidden."  For example, Lincoln admitted in the First Inaugural that he lacked the power to abolish slavery, because the Constitution did accord that power either to the president or the Congress.  He claimed that the Emancipation Proclamation was only a limited tactical step taken by the Commander-in-Chief against the enemy during wartime.  Therefore, it was necessary to pass the Thirteenth Amendment actually to abolish slavery.

 

If the Senate can extend the scope of the class subject to an impeachment trial to be the president, the vice president, other civil officers, and former such office-holders without authorization from the Constitution, why could they not extend the class to the president, the vice president, other civil officers, former such office-holders and all others aspiring to hold such office?  That extension is not explicitly forbidden the Constitution and according to your theory ought to be permitted.

Please, this argument about the Tenth Amendment is often trotted out by conservatives as an all-purpose argument to claim that much of what the Federal Govt does is unconstitutional.  Give it a rest.

[Sujo]

1 minute ago, placeholder said:

Please, this argument about the Tenth Amendment is often trotted out by conservatives as an all-purpose argument to claim that much of what the Federal Govt does is unconstitutional.  Give it a rest.

I will follow the majority of eminent legal scholars who say he can be convicted under the constitution. 

[cmarshall]

6 minutes ago, placeholder said:

Please, this argument about the Tenth Amendment is often trotted out by conservatives as an all-purpose argument to claim that much of what the Federal Govt does is unconstitutional.  Give it a rest.

 

You're joking, right?  You want to give the Bill of Rights a rest, without which the Constitution would not have been ratified?  

 

I am using the Tenth Amendment to explain to you the basis of the federalism of the US government the purpose of which in this context is for you to understand why it violates the Constitution for the Senate arbitrarily to expand the class of persons subject to an impeachment trial beyond that authorized by the Constitution, not to claim citizen sovereignty or any other strawman you wish to apply to me in lieu of a cogent rebuttal.

Edited February 8, 2021 by cmarshall

[placeholder]

7 minutes ago, cmarshall said:

 

You're joking, right?  You want to give the Bill of Rights a rest, without which the Constitution would not have been ratified?  

 

I am using the Tenth Amendment to explain to you the basis of the federalism of the US government the purpose of which in this context is for you to understand why it violates the Constitution for the Senate arbitrarily to expand the class of persons subject to an impeachment trial beyond that authorized by the Constitution, not to claim citizen sovereignty or any other strawman you wish to apply to me in lieu of a cogent rebuttal.

Please, the scope of the 10th Amendment is endlessly debated. To invoke such a general argument for an instance so specific smacks of desperation.

[cmarshall]

1 minute ago, placeholder said:

Please, the scope of the 10th Amendment is endlessly debated. To invoke such a general argument for an instance so specific smacks of desperation.

 

I am not feeling desperate in the least, but good luck with the ad hominem attack anyway.  You have yet to present any compelling argument.  In any case, my example of the Tenth Amendment is not at all central to the case I am presenting, but you are free to focus on peripheral arguments as much as you wish. 

 

So far, you have made the truly extraordinary argument that the Congress has any power not specifically excluded by the Constitution, for which you will find no support at all among the constitutional scholars you are otherwise fond of citing.

 

You have claimed controlling precedents for the interpretation of the Constitution on impeachment from the practices of the British Parliament without any justification even though the Framers were in the process of spelling out their repudiation of  important features of just that English practice.

 

You have claimed without any justification at all the precedentiary effect of features of the constitutions of the Confederation states without attempting to rebut the history of the period that argues strongly against that interpretation.  Nor have you provided any examples where those constitutions were cited in judicial decisions under the Constitution.

 

So, all in all you have failed to muster any strong evidence for your nevertheless strong belief.  

 

[heybruce]

2 hours ago, cmarshall said:

 

I refer you to the book "The Framer's Coup" by historian Michael Klarman about the writing of the Constitution and the considerable extent to which the motivation to overthrow the Articles of Confederation with an entirely new (and unauthorized) Constitution with a much stronger national government was driven just by the alarm with which the propertied class viewed the "excessively democratic" constitutions of the Confederation states.  Far from incorporating the features of the state constitutions the Framers strove to disable them even going so far as to propose that the Congress could invalidate any law passed by a state legislature, which did not make it into the final version of the Constitution only because they knew it would make ratification impossible.  

 

The Framers also looked longingly at lifetime tenure for senators and maybe even the president, but didn't think they would get away with that either.

The "excessively democratic" constitutions of the individual states were effectively disuniting the country into 13 separate states.  Contracts were unenforceable across state lines, treaties with foreign powers were impossible without unanimous agreement from all states and even then there was no means to enforce treaty agreement if one state went rogue, there was no means to raise a national military to dissuade any of the great powers of the time from picking off a few of the states, etc.

 

It wasn't all about protecting the haves from the have nots; there was an urgent need for a replacement to the Articles of Confederation if the United States were to survive.

[cmarshall]

5 minutes ago, heybruce said:

The "excessively democratic" constitutions of the individual states were effectively disuniting the country into 13 separate states.  Contracts were unenforceable across state lines, treaties with foreign powers were impossible without unanimous agreement from all states and even then there was no means to enforce treaty agreement if one state went rogue, there was no means to raise a national military to dissuade any of the great powers of the time from picking off a few of the states, etc.

 

It wasn't all about protecting the haves from the have nots; there was an urgent need for a replacement to the Articles of Confederation if the United States were to survive.

 

At last someone who knows a little something about the period. 

 

I am far from arguing for the revival of the Articles of Confederation.  Those issues that you mention were important issues of the day, but they weren't the precipitating factor that enabled the Constitutional Convention of 1787 to assemble a quorum, where the Annapolis Convention of the previous year failed to.  The difference was the intervening events of Shays Rebellion and its effect on the Massachusetts legislature.  Hitherto, Massachusetts had been a stalwart upholding the payment of debts in coin only and enforcing foreclosures with the courts and bailiffs.  The problem was that there was hardly any coin in circulation, so the farmers, many of whom fought in the War of Independence, were going bankrupt at alarming rates.

 

So Shays with a band of farmers tried to the the weapons of the Springfield Armory early in 1787, but failed.  Thereafter, however the Massachusetts legislature changed its posture and permitted payment of debts in kind, put a moratorium on farm foreclosures, and although did not go as far as joining the seven states that were issuing paper currency.  

 

The issues you mention were not those that were considered excessively democratic by the Framers, which I have described in earlier post.

 

James Madison was not in agreement with you on the purpose of the national government.  I don't have a date for this quote, but it appears to come from the Constitutional Convention:

 

The government we mean to erect is intended to last for ages. The landed interest, at present, is prevalent; but in process of time, when we approximate to the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government? In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be jsut, our government ought to secure the permanent interests of the country against [political] innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability. Various have been the propositons; but my opinion is, the longer they continue in office, the better will these views be answered.

 

Sounds very much like a government of the haves against the have nots to me.

[Sujo]

Most eminent legal scholars agree, its constitutional. There will be a trial. I will listen to what the experts say.

 

If it gets 60 votes to convict that would be a major victory for dems.

[heybruce]

42 minutes ago, cmarshall said:

 

At last someone who knows a little something about the period. 

 

I am far from arguing for the revival of the Articles of Confederation.  Those issues that you mention were important issues of the day, but they weren't the precipitating factor that enabled the Constitutional Convention of 1787 to assemble a quorum, where the Annapolis Convention of the previous year failed to.  The difference was the intervening events of Shays Rebellion and its effect on the Massachusetts legislature.  Hitherto, Massachusetts had been a stalwart upholding the payment of debts in coin only and enforcing foreclosures with the courts and bailiffs.  The problem was that there was hardly any coin in circulation, so the farmers, many of whom fought in the War of Independence, were going bankrupt at alarming rates.

 

So Shays with a band of farmers tried to the the weapons of the Springfield Armory early in 1787, but failed.  Thereafter, however the Massachusetts legislature changed its posture and permitted payment of debts in kind, put a moratorium on farm foreclosures, and although did not go as far as joining the seven states that were issuing paper currency.  

 

The issues you mention were not those that were considered excessively democratic by the Framers, which I have described in earlier post.

 

James Madison was not in agreement with you on the purpose of the national government.  I don't have a date for this quote, but it appears to come from the Constitutional Convention:

 

The government we mean to erect is intended to last for ages. The landed interest, at present, is prevalent; but in process of time, when we approximate to the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government? In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be jsut, our government ought to secure the permanent interests of the country against [political] innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability. Various have been the propositons; but my opinion is, the longer they continue in office, the better will these views be answered.

 

Sounds very much like a government of the haves against the have nots to me.

There were many conflicting views on the proper purpose and limits on federal government in the Constitutional Convention.  James Madison reflected the views of the wealthy Virginia farmers.

 

The issues I mentioned resulted from the populist democracies in the individual states and their refusal to make concessions for the greater good of the nation.  I assumed that was what you meant by "excessive democracies".  What did you mean?