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The most frequently quoted one-liner about impeachment is Gerald Ford’s: “An impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history.” Former President Ford was a honorable man who served his country to the best of his ability in difficult times. He was also a Yale Law School grad, but he was dead wrong about this issue in a way that is destructive of discourse about an important topic for the future of our system of government.
The Ford quote reflects a profound misunderstanding of the nature of law. The fallacy underlying Ford’s simplistic reduction of the legal issue of what constitutes an impeachable offense to the official acts by a majority of the House of Representatives is so well known in legal philosophy that it even has a name: positivism, of the extreme variation sometimes associated with a faction of the movement called “legal realism,” which was popular when Gerald Ford was a law student.
The idea — if one can dignify it with that term — is that there is nothing more to law than the acts of officials. The main flaw with this approach is that it “lacks a theory of mistake,” in the gentle but wise words of my teacher, the late Dean Harry H. Wellington of the Yale Law School. Under the Ford approach, one cannot say that the Supreme Court (or the House) got it wrong, because all there is to law is whatever officials do. Or, in subtler form, any criticism that one might make of the actions of officials sounds in politics or literary criticism, not law, because there is no content to law except what the officials do.
This is a fundamentally un-American concept of law. In the Declaration of Independence, our country was founded upon the principle that, contrary to Ford’s dictum, human rights preexist action by governmental officials. Therefore, the acts of officials, including those of King George, may be judged by their respect or disregard for legal rights, but their official actions do not define nor can they diminish those rights. On the other hand, the wrong-headed notion that there is no content to law other than the actions of duly appointed officials was the central error behind the scholarly jurisprudence written to attempt to justify Nazism.
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See Also:
(1) The reasons the IG report has been delayed will delight Trump supporters
(2) Rand Paul blocks Senate push to protect Trump whistleblower
(3) Sessions inches closer to announcing Alabama Senate bid
(4) Want A European-Style Welfare State? Get Ready For European-Style Tax Rates
(5) Pam Bondi, former Florida AG, ‘likely’ to join White House during impeachment
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