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On Blackstone 4:

Impeachment & Resistance

The Framers of the U.S. Constitution parted ways with Blackstone when it came to impeachment. The Framers explicitly gave Congress the constitutional power to impeach the Executive. In contrast, Blackstone argues that impeachment of the Executive is improper because it disrupts society by kneecapping the power of the Executive, thereby hampering its ability to work on behalf of the public good. For Blackstone, the public good requires that the Executive have absolute power lest the fear of impeachment keep the Executive from acting on behalf of the public good. If this sounds fascist, or in accordance with the modern “unitary executive” crowd that craves absolute power for the executive, you’re partially right. But Blackstone’s view is more subtle than the crude view that the power of the Executive is absolute.

Subtle because he’s careful to distinguish between the Executive as a person and the Executive as a constitutional, common law creation. It’s the difference between the person holding the office, and the office. It’s the latter legal abstraction in which he vests absolute power, not the person who holds the office of the Executive. This leaves open the possibility of tossing the person holding the office of the Executive for an abuse of power, while still preserving the absolute power of the Executive office when it comes to acting on behalf of the public good. And for Blackstone, the Executive’s powers are at their peak when it acts on behalf of the public good in areas where the law is silent.

Blackstone is not only subtle and clever, he’s sensitive and perceptive to the critique that his theory of executive power is a recipe for tyranny. He’s worth quoting in full on this point:

“After what has been premised in this chapter, I shall not (I trust) be considered as an advocate for arbitrary power. When I lay it down as a principle that in the exertion of lawful [Executive] prerogative, the King is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either delay or resist him. He may reject what bills, may make what treaties, may coin what money, may create what peers, may pardon what offenses he pleases: unless where the constitution hath expressly, or by evident consequence, laid down some exception or boundary; declaring, that thus far the prerogative shall go and no farther. For otherwise the power of the crown would indeed be but a name and a shadow, insufficient for the ends of government, if, where its jurisdiction is clearly established and allowed, any man or body of men were permitted to disobey it, in the ordinary course of law: I say, in the ordinary course of law; for I do not now speak of those extraordinary recourses to first principles, which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defence against the violence of fraud or oppression. And yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute power in the prince and national resistance by the people, to be much misunderstood and perverted by the advocates for slavery on the one hand, and the demagogues of faction on the other. The former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as it certainly is) most strongly and emphatically in our law books, as well as our homilies, have denied that any case can be excepted from so general and positive a rule; forgetting how impossible it is, in any practical system of laws, to point out before hand those eccentrical remedies, which the sudden emergence of national distress may dictate, and which that alone can justify. On the other hand, over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the person of the prince when the being of the state is endangered, and the public voice proclaims such resistance necessary, they have therefore allowed to every individual the right of determining this expedience, and of employing private force to resist even private oppression. A doctrine productive of anarchy, and (in consequence) equally fatal to civil liberty as tyranny itself. For civil liberty, rightly understood, consists in protecting the rights of individuals by the united force of society: society cannot be maintained, and of course can exert no protection, without obedience to some sovereign power: and obedience is an empty name, if every individual has a right to decide how he himself shall obey.”

William Blackstone, Commentaries on the Laws of England, Book 1, Of the Rights of Persons, Chapter 7 (c. 1765).

If you don’t think that’s a beautiful piece of legal writing, whatever its merits, I part ways with you. It defines the debate over impeachment we’re having right now. On one side you have the “unitary executive” crowd for whom the president can do almost no wrong when he’s not explicitly bound by the constitution. On the other hand you’ve got the crowd that feels “the absurdity of unlimited passive obedience” to the Executive because he’s engaged in acts of fraud and oppression that violate our social contract and require the extraordinary remedy of impeachment. As Blackstone notes, this is a question of what our First Principles are. If you think they’re being violated then it follows we should impeach, or even that revolution is warranted. If you don’t, then the call for impeachment and resistance is a dangerous act of faction.

Whatever side you’re on in this debate (I favor impeaching the President for his fraud and oppression), Blackstone frames the issues better than almost anyone. That’s one of the reasons he was so influential for the Framers, and why you can’t read the impeachment clause of the Constitution without understanding Blackstone’s views on the subject.

Road to Nowhere

In Liminae: The Road to Nowhere

It takes us about six hours to drive to the rural state jail (that’s owned by two judges) the Feds contracted with to hold our client. Accused of computer crimes, he can’t effectively review evidence in jail – there’s no practical access to computers in the gulag. They’ve seized all his assets claiming they’re the ill-gotten gains of crimes the government can’t identify, and their computer forensics – if you can call them that – have no scientific basis and are full of basic errors and typos. In my decade as a federal criminal defense lawyer doing computer cases across the country, I’ve never come across a case where the government was so completely off.

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Guilty Until Proven Innocent

A defendant’s view from the trenches of federal criminal court This post is originally published to Substack. You can read and follow us there.

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