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Seldom have The Federalist Papers — a series of authoritative essays on the Constitution written in 1787-88 — been so in vogue outside of college classrooms. Judging by recent debates in Washington and editorials nationwide, most of our politicians and journalists have at a minimum checked out the impeachment discussion in Alexander Hamilton's Federalist 65. But let the public beware: many of these folks who are taking the next step and citing the Founders' views to bolster their own — "Hamilton didn't believe that lying about sex rises to the level of impeachment!" — are doing so in the spirit that Homer Simpson cites the Bible. (When challenged as to where the Bible says what he claims, Homer waves his hand impatiently and mumbles, "Somewhere in the back.")
One of the most troubling signs of the ignorance of our political and media elites with regard to The Federalist Papers — and by extension the Constitution itself — is the common view that public opinion polls should be decisive in any impeachment process. The problem with this from a constitutional perspective is suggested by a passage from James Madison's Federalist 49: "It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government."
This distinction between the public's reason and the public's passions is the basis of the superiority of constitutional democracy — limited government operating through strictly defined representative institutions — to plebiscitary democracy — government by simple majority rule. The latter tends to be driven by short-sighted, private, and narrow concerns that are at odds with the long-term public or common good. Constitutionalism, on the other hand — employing features like separated powers, checks and balances, structured elections of representatives, and an independent judiciary — serves to increase the chances of relatively far-sighted, sensible, and fair policies.
Consider the disjunction between the public's reason and passions — and the practical ability of representative institutions to sort them out — in the area of national defense. On the one hand, the public reasonably expects its elected government to defend it from foreign threats. On the other hand, unless Pearl Harbor has just been attacked, the public prefers to spend its money on other things. An opinion poll taken tomorrow morning would likely suggest that college students support increased tuition aid over research and development of missile defense technology; likewise retirees would prefer fatter COLAs, farmers more generous agricultural subsidies, etc. But our political institutions — to the extent they are working properly — are able to resolve these contradictions in favor of "the reason, alone, of the public," i.e., they are able to ignore public opinion polls in order to ensure the public's safety.
There is a parallel situation in the current impeachment controversy. On the one hand, Americans reasonably expect their elected officials to respect and uphold the bedrock principle that no man is above the law. On the other hand, public opinion polls suggest that a 60-percent majority opposes impeachment even if President Clinton is shown to have committed felonies, such as perjury and obstruction of justice, for which other Americans go to jail.
There seem to be various explanations for this anti-impeachment sentiment — fear of economic repercussions, crass partisanship, political cynicism, and even moral degeneracy (a recent "man on the street" survey in Houston elicited the opinion that unless presidents continue to be allowed to use their power to have plenty of sexual affairs, good men will no longer aspire to the office). The common thread running through all of it, however — given that no one seems to dispute any of the facts contained in the Starr Report — is unreasonableness, i.e., a rejection of the reasonable idea of the rule of law.
In Federalist 57, Madison warns that if the "vigilant and manly spirit" of Americans should ever "be so far debased as to tolerate a law not obligatory on the legislature...the people will be prepared to tolerate anything but liberty." Even less could he have imagined that Americans would tolerate a president acting above the law, given our nation's origin in a bloody revolution against a despotic king. In this light, Congress's impeachment power has traditionally been seen as a comfort, not a threat to the public, standing as a curb to presidents (and judges) who forget they are servants of the law.
From a constitutional standpoint, the question now before the House of Representatives is clear: Will it be guided by the public's reasonable conviction that we are a nation of laws rather than men, or by fluctuating opinion polls reflecting the public's fears, cynicism, sinful leanings, and short-sighted willingness to set the dangerous precedent of bending the law for a rogue chief executive?
