Part Four: Defending the Republic
By: Matt P. Lavine
Tags: Constitutional Law, Alan Dershowitz, Originalism, Impeachment, Constitutional History

Part Four: Defending the Republic

In his role as a criminal defense lawyer, Alan Dershowitz had the obligation to argue only that evidence that supported his client.32 The lawyers’ rules of engagement do require lawyers to present an accurate statement of the law. 33 In quoting from Blackstone’s Commentaries, Prof. Dershowitz evidently missed the specific explanation of “crimes and misdemeanors”:

Those rights which God and nature have established, and are therefore called natural rights, such as life and liberty, do not need [the] aid of human laws . . . . No human legislature has power to abridge or destroy them . . . . Neither do divine or natural duties . . . receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemesnors, [they] are forbidden by the superior laws . . . [and need not be] declared unlawful by the inferior legislature.34

This definition negates the argument of Trump’s lawyer.

Defending his client, Prof. Dershowitz expertly performed the lawyer’s craft of treating history as a figurative file cabinet from which to select useful quotes. Thus, he produced a an absurdly illogical depiction of American history. In announcing that the Convention’s delegates were preoccupied with replicating a “British style parliamentary democracy”, the Professor disregarded any need to explain how men in 1787 could have feared a system unknown at the time. His inquiry into the mentality of the Constitution’s drafters inexplicably disregarded the impact of a war fought from 1775 until the end of 1783 against the English King. After all, the War of Independence only began after challenging the acts of Parliament grew into fighting the monarchy.35 Hence, the Declaration of Independence explicitly excoriated the King without mentioning Parliament.36 Dershowitz spun a tale for the Senators that ignored even the most basic rules of historical scholarship.

In his final book, The Historian’s Craft, Marc Bloch, a historian from France, explained the ethos of the historian. To Bloch, the historian must appreciate that “the written word vastly facilitates those transfers of thought which supply the true continuity of a civilization”. Thus, the “first duty of the historian” was to recognize the “milieu” in which the people of the past were “immersed in the mental climate of their time and faced [their own] problems of conscience.”37

Bloch implored his fellow historians to clear their minds of “the virus of the present” and not “permit its poison to infiltrate” their scholarship.38 Writing almost eighty years before Justice Gorsuch and Prof. Dershowitz inflicted their version of history on an unsuspecting audience, Bloch declared that “we have no right to make any assertion which cannot be verified”, he decried historical narratives “corrupted by dogma and myth”.39

Today, originalists, unchallenged in their attacks, plow the historical record for ammunition in their war against America’s republican foundation. At the age of fifty-three, Bloch demonstrated his commitment to French civilization by resigning his university appointment and joining the French Army to repel the German invasion of France. After France fell, Bloch, a Jew, rejected invitations to flee the Nazis and join colleagues in the United States. Instead, he fought with the Resistance until his capture in 1942. Although he had begun writing The Historian’s Craft in 1940, Bloch’s execution by the German Army prevented him from completing his final draft.

A full reading of the debates at the Philadelphia Convention obliterates the notion that Americans had little concern for the potential return of monarchism. As proceedings began in earnest on June 1, 1787, the delegates considered a resolution “that a national Executive be … chosen by the national Legislature [and] possess the Executive powers”. Charles Pinckney of South Carolina approved of the idea of a “vigorous Executive but was afraid the Executive powers [would] render the Executive a monarchy of the worst kind.”40 Delaware’s John Dickinson acknowledged that “we cannot have a limited monarchy. Our condition does not permit it.”41 Governor Edmund Randolph of Virginia feared that establishing a single executive officer would be the “fetus of monarchy”.42

On June 2, 1787, the Convention resolved that the executive would be selected by the National Legislature.43 James Wilson of Pennsylvania explained the dangers of executive power.

There is scarce a king . . . who would not . . . follow the example of Pharaoh, get first all the people’s money, then all their lands, and then make them and their children servants forever. . . . 44

After Wilson’s speech, Roger Sherman added an additional restraint on the president. Sherman “contended that the National Legislature should have power to remove the Executive at pleasure”. To George Mason, “making the executive the mere creature of the legislature [was] a violation of the fundamental principle of good government.”45 Dickinson reiterated that the “spirit of the times, the state of our affairs, forbade the experiment” in monarchism.46

Although Dershowitz had assured the Senate of his deep dive into the minds of Americans of the late 18th Century, he seemed unaware of the American “principle of good government”. As those hearing Mason’s words in 1787 well knew, all the States, upon declaring independence, had established governments that distributed power into three separate branches.

Typical was the Massachusetts Constitution of 1780, which provided:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.47

In fact, contrary to the impression given by Dershowitz, the debates of June 1 and June 2 ended with the Convention resolving that the president would be chosen by the National Legislature and “removable on impeachment and conviction of malpractices or neglect of duty”.48

On July 20, 1787, the Convent ion revisited the proposal to remove president for “malpractice or neglect of duty.”49 As Dershowitz noted, Gouverneur Morris had initially opposed granting Congress the power to impeach a president.50 Not reported by Dershowitz were the comments that followed Morris’s declared opposition. William Davie of North Carolina argued that, “[i]f he be not impeachable while in office, he will spare no efforts or means whatever to get himself re-elected.” George Mason queried: “Shall any man be above Justice? Shall the man who has practiced corruption . . . escape punishment?”51 Benjamin Franklin, agreeing with Mason, declared that “it would be [best] to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it”.52

Also omitted from Dershowitz’s presentation was that Gouverneur Morris fully reversed his original position. After the speeches of Davie, Mason, and Franklin, Morris “admit[ted] corruption and some few other offenses to be such as ought to be impeachable; but thought the cases ought to be enumerated and defined”.53 Madison then characterized impeachment as the people’s protection against a president who “might pervert his administration into a scheme of peculation or oppression”.54 Governor Randolph added that impeachment would prevent a president from “abusing his power”.55

At that point, Morris announced that his “opinion had been changed by the arguments used in the discussion.”56 Morris declared that he was now

sensible of the necessity of impeachments. [The president should] be impeachable for treachery, corrupting his electors, and incapacity [and] other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office.57

On July 24, Morris again acknowledged that he “had been opposed to impeachment but was now convinced that impeachments must be provided for”.58 Completing his reversal, Morris, on August 20, proposed that the president be subject to “impeachment and removal from office for neglect of duty, malversation, or corruption.”59

The last discussion of the impeachment power took place on September 8, 1787. The debate began with the Convention’s review of the “clause referring to the Senate for the trial of impeachments against the President for treason and bribery”. Mason suggested the addition of “maladministration” because limiting impeachment to treason and bribery “will not reach many great and dangerous offenses”. 60 While Madison objected to “maladministration”, he also objected to “high crimes and misdemeanors”. According to Madison, “any act” could be “called a misdemeanor”.61 Gouverneur Morris, in an apparent attempt to assuage Madison’s fears, proclaimed that “there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes”.62 Ultimately, the Convention approved “high crimes and misdemeanors” by overriding Madison’s objections.63

Poisoned by the virus of the present, Dershowitz failed to account for the milieu in which the delegates considered the language in the impeachment provision. In Madison and Mason’s Virginia, the Constitution empowered the lower house of the legislature to impeach the governor for “maladministration”, “corruption”, and other acts “by which the safety of the State may be endangered”.64 The Massachusetts Constitution authorized its senate to remove the governor for “misconduct and maladministration.”65 The Pennsylvania Constitution made “maladministration” the basis for removal.66 To the extent that any “original intent” can be discerned from the delegates’ words and deeds, the record demonstrates a universal intention to provide the legislature with the power to remove any executive whose conduct is indicative of a monarch.

Notes

32. “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Preamble to the American Bar Association’s Model Rules of Professional Conduct .

33. Contra Model Rule 3.3(a) of the American Bar Association’s Model Rules of Professional Conduct . (“A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal . . . (2) fail to disclose to the tribunal legal authority . . . known to the lawyer to be directly adverse to the position of the client . . . (3) offer evidence that the lawyer knows to be false.”)

34. Sharswood, George [ed.] Blackstone’s Commentaries on the Laws of England (J.P. Lippincott & Co. Philadelphia 1893), pp. 53–54.

35. Bailyn, Bernard The Ideological Origins of the American Revolution (Belknap Press 1967), pp. 287–291.

36. “The history of the present King of Great Britain is a history of repeated injuries and usurpations [seeking] the establishment of an absolute Tyranny over these States . . . . [which are] absolved from all Allegiance to the British Crown”.

37. Bloch, Marc, The Historian’s Craft (Vintage Books 1953), p. 41.

38. Bloch, p. 92

39. Bloch, p. 88

40. Hunt, Gaillard and Scott, James [ed.] The Debates in the Federal Convention of 1787 which Framed the Constitution of the United States of America (Oxford University Press New York 1920), p. 37.

41. This remark was included in a prior edition of the Debates edited by Hunt. See , Hunt, Gaillard [ed.] The Journal of the Debates in the Convention which Framed the Constitution of the United States (G. P. Putnam’s Sons New York and London 1908), v. 1, p. 51.

42. Hunt and Scott, p. 38.

43. Hunt and Scott, p. 43.

44. Hunt and Scott, p. 44. In defending Trump, Dershowitz had good reason not to quote from this lengthy speech of Wilson. Wilson, in his speech of June 2, 1787, went on to warn the Convention that tyranny “may be long delayed, if in our proposed System we do not [make] our posts of honor [into] places of profit. If we do, I fear that . . . a King will [soon] be set over us.” Hunt and Scott, p. 45.

45. Hunt and Scott, p. 46. Dershowitz attributed this quote to Ben Franklin.

46. Hunt and Scott, p. 47.

47. Thorpe, vol. III, p. 1893 (Part I, Section XXX).

48. Hunt and Scott, p. 48.

49. Hunt and Scott, p. 289.

50. Hunt and Scott, p. 290.

51. Hunt and Scott, p. 290.

52. Hunt and Scott, p. 290.

53. Hunt and Scott, p. 291.

54. Hunt and Scott, p. 291.

55. Hunt and Scott, p. 292.

56. Hunt and Scott, p. 293. In fairness to Morris, he had served under Washington during the War and repeatedly expressed his admiration for the General. In considering the design of the new government, Morris may have difficulty not viewing the restrictions on the office of the president as an insult directed at the man universally presumed to be the First President.

57. Hunt and Scott, p. 293.

58. Hunt and Scott, p. 315.

59. Hunt and Scott, p. 428–29.

60. Hunt and Scott, p. 535.

61. Hunt and Scott, p. 535.

62. Hunt and Scott, pp. 535–36.

63. Only Pennsylvania opposed. New York’s vote was not recorded. Rhode Island sent no delegates.

64. Thorpe, vol. VII, pp. 3816–3818.

65. Thorpe, vol. III, p. 1897.