Why Impeachment Doesn't Work | Opinion

"It's a Republic, if you can keep it," Benjamin Franklin famously quipped about the new nation he helped establish. Franklin meant that the framers created a government designed to have just enough centralized power to make government effective, without putting too much power in any one place. It's a delicate balance: too little power, and chaos reigns; too much, and rulers tend to get autocratic.

Impeachment is intended to be the ultimate shield against autocracy and used sparingly. But in the past 20 years or so, America has seen two divisive presidents impeached but not removed from office, suggesting that something is out of balance.

And something is.

The most successful governments around the world have two main characteristics that help them maintain their democratic stability: institutions and norms.

Democratic institutions include respect for the rule of law, a functioning legislature, widespread voting rights, an impartial judiciary and regular elections to freely select representatives. The U.S. Constitution established strong institutional features, including three separate but equal branches of government. It's a brilliant self-monitoring design, but it's not a self-executing system. It requires democratic norms to make it work.

Democratic norms include mutual respect among political rivals and self-restraint of those in power. In a healthy, free republic, political adversaries compete without threatening one another. They respect one another's right to participate in the political arena. They accept their rival's leadership when their side loses. They do not aim to strip their adversary of power when they are in charge. These norms are critical to making the institutions of democracy work.

The institutions are the engine; the norms are the oil that allows the whole complicated machine to operate.

In U.S. politics today, the norms of respect and restraint are seriously degraded. When presidential candidates encourage locking up their political rivals, threaten their opponents with violence or act as if their opponents have no right to make public statements, they participate in the degradation of the norms that guard democracy. As these unrestrained acts persist, they become a barrier to institutions functioning as they should.

But how did things get this way? From the 1970s to 1990s, the American electorate sorted into liberal and conservative parties, particularly on issues of racial justice, causing polarization to germinate. A diversified media environment and convoluted campaign finance system, stemming from relaxed regulations and technological advances, fed this extremism. And throughout the beginning of the 21st century, deepening polarization created the perfect conditions for democratic norms to be violated.

The institution of impeachment and removal from office works only if we are following the norms that support institutional checks and balances—and we most certainly are not. Therefore, the constitutional provision that allows Congress to remove a president who has broken the law is broken. There is no check on the president because modern partisans are more strongly motivated by party loyalty than inter-branch responsibility.

On the other hand, since Congress has never successfully removed a president who has broken the law, there may be no conditions under which this check works. The episode of impeaching, but not removing, President Donald Trump has revealed the limits of constitutional power to prevent law-breaking presidents from remaining in office. President Bill Clinton's crime was arguably less serious because it didn't threaten the state. Still, he, too, broke the law and wasn't removed.

Once could be a fluke. But now it has happened twice, and we can be certain that institutional checks and balances cannot withstand the force of modern partisanship.

One could argue that President Richard Nixon resigned, but that was only after his own party finally defected from his defense under intense scrutiny, increasing public pressure and incriminating hard evidence. Back then, polarization was not as strong. Partisans could still cross party lines to build bipartisan coalitions.

Donald Trump
President Donald Trump speaks at an even in Charlotte, North Carolina, on February 7, two days after Republicans in the Senate voted to acquit him of both charges against him, keeping him in office. SAUL LOEB/AFP/Getty

American history is filled with examples of polarizing events and norm-breaking behavior, from the Civil War to President Franklin D. Roosevelt seeking four terms to McCarthyism. But the republic persevered, largely because of partisans who showed willingness to stand up to those in their own ranks who violated norms.

The way to reign in norm violators is to impose sanctions against those who break them. Today, there appears to be little willingness for partisans to restrain or punish their colleagues who take things too far.

Structural forces set polarization into place. Inadvertently, changes in law made polarization worse. Then democratic norms eroded, and we had the perfect conditions for a president to test the boundaries of power of the presidency. The boundaries turn out to be more pliable than we might have expected.

And now we know that the U.S. Constitution has (another) serious flaw. There is no effective inter-branch constraint on presidential power. At least not during political times that are characterized by polarization and defiance of democratic norms.

Jennifer Nicoll Victor, Ph.D., is an associate professor of political science at George Mason University.

The views expressed in this article are the author's own.