Guest Essayist: James C. Clinger


Essay Read by Constituting America Founder, Actress Janine Turner


“…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and made directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.

The above quotation from Joseph Story, an associate justice on the United States Supreme Court, is drawn from his discussion of the United States Senate, and more specifically from his analysis of the role of the Senate in the impeachment process. Story’s analysis is an insightful illustration of what is sometimes called the separation of powers, but which some observers call “separate institutions, sharing powers.”[1]

In Article I, Section 1 of the United States Constitution, the Framers wrote that “all legislative powers are vested in a Congress.  Article II of the Constitution discusses executive powers, and Article III covers judicial powers, but notably the adjective “all” is absent from the text of those articles. Only in the first article does the text emphasize the comprehensive nature of the powers vested in Congress. To make sense of this language and to contrast it with the empowering language written for the executive and judicial branches requires us to have some understanding of what words such as “legislative” and “executive” and “judicial” actually mean. Virtually all dictionary definitions describe the word “legislative” as pertaining to the making or enacting of laws. However, that definition is of little use to us if we do not have any particular idea of what a law actually is. Definitions of “law” are a bit more varied, in part because the definitions sometimes refer to regularities in natural phenomena with a common causal pattern (e.g., the law of gravity). In a constitutional context, law is generally regarded to be general rules made by government, using a proper procedure not forbidden to the government, which the government enforces with the use of penalties. Those penalties may take the forms of civil and/or criminal actions. This legislative power stands in contrast to the power of the executive, which is a word drawn from the Latin word exsequor, which means “to follow thoroughly.”[2] Ironically, the executive function has come to be known as a matter of leadership, rather than as the role of a follower. In the case of a government executive, the executive function is a matter of following or administering the rules enacted through a legislative process. The judicial power is generally a matter of making decisions regarding a legal matter in which there are two or more contending parties. Unlike the legislative power, which is applicable to all within a community, and accessible to all in a republic, the application of the judicial power has immediate effect upon the particular parties standing before the court. However, the judgments of an appellant court may become precedents that would have impact on other parties more generally.

In the case of impeachment, the Constitution authorizes a legislative function that in some respects resembles a judicial process.   Article II, Section 4, of the Constitution specifically states that the president, the vice-president, and all civil officers of the United States may be removed from office “on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” This is a process that makes decisions regarding particular individuals accused of high crimes and misdemeanors. It is not a process that implicates whole classes of individuals or entire categories of behaviors, but a particularized decision about specifically identified individuals. The cause of action for an impeachment action is some kind of “High Crime or Misdemeanors,” which implies the possibility of a criminal proceeding. Nonetheless, as Joseph Story points out, impeachment is not considered a judicial process. No punishment beyond removal from office can be ordered through impeachment. In these instances, a civil officer accused of misconduct is examined by the House of Representatives, a chamber made up of elected individuals. Upon an impeachment vote by the House, the members of the Senate, acting as representatives of the states, consider whether or not to remove the civil officer.

As Story noted, a “free” public would be “jealous” of its power to use their elected, political representatives to make decisions on the removal of civil officers found to be guilty of misconduct. That kind of decision, if made by unelected judges, would outrage the public. As is often the case, the public has expectations about what kinds of decisions an institution within the government should make. Of course, since Joseph Story’s time public perceptions of the proper institution to address different issues may have changed dramatically. Views on the separation of powers have often changed over time. Recent events suggest that much of the public has a very results-oriented view of public decisions, without considering which institution is constitutionally authorized to make important policy choices. These views may be quite short-sighted, since an institution which usurps the powers of other institutions may occasionally make decisions favored by the public, but over the long term may accumulate power that will threaten individual rights and the aggregate interests of the public.

James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.

[1] Richard Neustadt, Presidential Power: The Politics of Leadership.   New York: Wiley (1964), p. 42.


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