One can also imagine the dire consequences of FDR’s suffering a non-fatal stroke in April 1945. Until Warren Harding took office on March 4, 1921, we were in effect illegitimately governed by his wife Edith Galt Wilson and her enablers. This was, effectively, the reality for a year-and-a-half following Woodrow Wilson’s stroke in September, 1919. Kennedy lingering for weeks, or perhaps longer, in a coma or otherwise clearly debilitated state rendering him incapable of actually functioning as President. The 25 th Amendment, for its part, was drafted in order to save us from what would have been the most truly disastrous outcome on November 22, 1963: a stricken John F. We do know, though, that most political liberals believed that lying to one’s Cabinet, the citizenry at large, and, indeed, a federal grand jury-this last a clearly illegal act-did not warrant removal. The Clinton impeachment, however, demonstrated the degree to which the clause has been captured by lawyers who simply shout at one another about what in fact constitutes such a “high crime or misdemeanor.” The correct answer is that nobody really knows. In other words, the basic problem with the impeachment clause is that it simply does not work, with the exception, perhaps, of Richard Nixon. Neither is adequate to the occasion before us, however understandable it might be to suggest either that Trump has committed a “high crime or misdemeanor” or that he has exhibited sufficient symptoms of dementia or sociopathology to warrant displacement through the 25 th Amendment. The latter allows a President’s cabinet, with the assent of Congress, to declare the incumbent incapable of performing the duties of the office. The impeachment question raises what today may be the single most important structural feature of the Constitution: the fixed presidential term of four years, save for the possibility of impeachment or the invocation of the 25 th Amendment. In fact, my wife and I use the Preamble as the basis for our ultimately “grading” the Constitution in terms of its actually allowing us to achieve those admirable aspirations. For all of my past and recent criticisms, I never fail to find the Preamble inspiring as a record of those commitments. It is an unfortunate truth that the Trump Administration highlights some of the most grievous of those flaws, beginning, obviously enough, with the Electoral College that inflicted his presidency upon us.īut another vital flaw is revealed to us when we ask ourselves whether it could constitute an impeachable offense-a “high crime and misdemeanor”-for a President to exhibit in his views and behavior the rejection of what we would like to think of as our basic commitments as a nation. On September 1, my wife Cynthia Levinson and I will publish a book directed this time at teenagers called Fault Lines in the Constitution. Donald Trump owes his election, at least in part, to this widespread and accurate perception of a crisis of governance. They seemed incapable of addressing some of our most basic problems. In 2012, Framed: America’s 51 Constitutions and the Crisis of Governance blamed a number of structural features of the Constitution, which in fact never become the topic of serious litigation, for the fact that most Americans, regardless of their political affiliations, had increasing mistrust and, indeed, near contempt for our country’s national political institutions. My 2006 book, Our Undemocratic Constitution, criticized it for its obvious deviations from any plausible twenty-first century theory of democracy.
Over the past decade especially, I have become an increasingly harsh critic of the United States Constitution. George Washington presiding the Philadelphia Convention
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