Despite our oft-stated aspirations to be nations of laws, not of men, I’ve always thought it clearer to see Britain and America as bodies politic, not legal communities. In the United States, even in our most fundamental rights and duties under the Constitution, we are more governed by popular will than guided by the law. A good example of this (some might wish to say, a timely example of this) is impeachment. A few months back, I published a book called Faithless Execution, about President Barack Obama’s systematic lawlessness. The burden was to examine how the United States Constitution grapples with executive excess.
The Framers expended much of their energy on reining in the president. They wanted a clear legal standard defining the type of maladministration that could trigger the chief executive’s removal from office, so they settled on “high crimes and misdemeanors,” a term of art referring to breaches of the public trust that they borrowed from British law. Yet they also wanted to make removal very hard to do—to ensure that it would be invoked only in cases of egregious misconduct, not trivial wrongs or partisan spite—so they settled on requiring a two-thirds supermajority vote in the Senate. As a practical matter, that meant there could be no impeachment absent a public consensus that cut across partisan and ideological lines. Consequently, a president can commit a hundred offenses that are legally sufficientto warrant impeachment—a proposition our current president seems
