Nearly all of the historical evidence favors a broad, political view of the impeachment power.
Who is to say Nay to the People? Publius, Majority Rule, and Willmoore Kendall
The Enduring Importance of Willmoore Kendall
Once upon a time in America, conservatives celebrated Congress as the last best hope to preserve the authentic traditions of republican government. As recently as the 1960s, it was “conservative” to look to the first branch of government as the indispensable bulwark against the Imperial Presidency, Supreme Court activism, plebiscitary democracy, and federal social engineering programs. As long as the American people also looked to Congress to play this defensive role, the political system would remain intact.
No postwar conservative was more optimistically wedded to this perspective than Willmoore Kendall (1909-1967). Kendall, a defender of majority-rule (with some qualifications), particularly stood out among conservatives of his time as a fervent believer in the good sense of his fellow Americans to elect the “best men” to office. Americans were at least capable of being the “virtuous people,” who would insist that Congress preserve the traditions of the Founding. The principal evidence to which Kendall referred here was The Federalist, a text that he treated as political scripture for Americans. Kendall insisted that the Federalist provides the best possible interpretation of the Constitution of the United States. In his 1965 essay, “How to read ‘The Federalist,’” (which can be conveniently found along with his other major political essays in Willmoore Kendall Contra Mundum, edited by Nellie D. Kendall, University Press, 1994), Kendall explained why this great work of political philosophy laid out what conservatives ought to be busy conserving: a particularly aristocratic version of majority-rule. “Publius,” the famed pseudonymous author of The Federalist, teaches
the doctrine that legislation under the Constitution should reflect the ‘deliberate sense’ not of the majority of the American people but of the American people as a whole, and it is ‘Publius’’ teaching, not the plain language of the Philadelphia Constitution, that…the congressional majority…does not and does not think itself entitled to, ram legislation through without consulting the views and wishes of the congressional minority.
Kendall left no doubt that any reading of the “Philadelphia Constitution” without the guidance of this teaching about the role of Congress would provoke the already high potential for ideological civil war in America. On its own, the Philadelphia Constitution “leaves the door open” to various political pathologies that go well beyond the intent of the Framers: relentless judicial review by the Supreme Court, ideological “mandates” given to newly elected presidents, endless amendments that promise social and economic radicalism, and irresolvable debates about “rights” in the political arena. In short, Publius’ version of the Constitution had a built-in conservative bias that the Philadelphia Constitution did not. In a later essay in which he compared The Federalist to Rousseau’s philosophy of the “General Will,” Kendall further praised Publius for realizing “that it is essential to foster diverse interests among the people since the interplay of these conflicting pursuits will safeguard against the rise of tyrannous factional majorities.” These factional threats would only arise if all three branches of government forgot that Congress, not a president or a Supreme Court justice armed with an obscure ideological agenda, is best able to reflect the “diverse interests” that make up the republic.
Despite the claims of many critics that he was a naïve populist who had a “baffling optimism” (in the words of William F. Buckley Jr.) about the wisdom of the American people, Kendall was only too aware that The Federalist was not guaranteed to be the people’s favored hermeneutic of the Constitution. While he did not share the deeply pessimistic view of James Burnham, his fellow contributor at National Review in the 1950s and early 1960s, that Americans had become an ignorant “mass” that has been easily manipulated by Bonapartist presidents since the rise of the New Deal, he firmly insisted that Congress must not meekly go along with presidential or judicial activism that bypasses or transcends its necessary deliberations. Although Burnham, in his Congress and the American Tradition (1959) had praised as much as Kendall the conservative role of Congress, Burnham was convinced that this role was facing irrevocable decline due to the rise of the mass democratic state. With Burnham’s analysis in mind, Kendall refused to accept that the decline of Congress was inevitable as long as it still held the ultimate levers of power against the President and the Supreme Court. Congress’s alleged decline was an act of choice, not fate: “What Congress consents to, to paraphrase Rousseau, we must suppose it to command.”
As a careful reader of The Federalist, Kendall well knew that factions always threatened to derail the stability of American government, which was based on the fragile diversity of interest that characterized this “extended republic.” Some leftist factions even went so far as to invoke quasi-religious language about the “New Jerusalem” in order to justify the egalitarian leveling of American society in the name of “social justice” (a theme that he and George Carey discussed at length in their Basic Symbols of the American Political Tradition). Yet he was confident that Congress could co-opt the most determined factions of all (e.g., the Civil Rights movement of the 1960s) by allowing their minority opinion to have their say without necessarily giving them all that they want. After initial doubts about the radical potential of this movement, Kendall was one of the few conservatives to support the civil rights legislation of the mid-1960s precisely because it “killed” the movement that demanded it, or at least forced on Dr. King and his followers the reality check that their demands for change, even if supported by a slight majority of Americans, would go nowhere without the often slow-going creation of consensus Congress. Even factions with mass popular support in the streets would have to “cool their heels” while congressional representatives debated and deliberated.
Still, would Congress always effectively co-opt these factions? It is sobering to recall that The Federalist often portrayed factions as rather impermanent things that would lose steam once their goals are fully debated and dissected in Congress. As we have seen, Kendall was certain that The Federalist had good reason to hold up Congress as the most effective opposition against any faction, since the national diversity that is reflected in the former would far outweigh the parochialism that lurks in the latter. Perhaps for this reason, James Madison’s Federalist 10 associates factions, which are the main subject of this famous article, with “local prejudices” that will not pose any fatal threat to a widely dispersed republican citizenry. Yet Madison was writing at a time when the federal government had not created a vast system of largesse or patronage that would encourage factions (now known as lobbies) to seek and maintain a permanent as well as national relationship of dependence on Washington money. Since 1933, the federal government has morphed into what Burnham famously called a “managerial state” that dispenses a wide array of entitlements and subsidies to voting blocs, corporations, unions, and other “factions” who reward their representatives with their votes during the next election. Although these groups have local origins in particular states, they often muster disproportionate power over the creation of policy in Congress. Contra Kendall, did factions finally co-opt Congress? And, would these factions ever “cool their heels” in pursuit of their agenda when an endless stream of federal cash was at stake?
Since Kendall died in the same year (1967) that the Great Society programs, the second round of the New Deal, were first being foisted onto the American public, perhaps he did not fully anticipate the degree to which many Americans would give up The Federalist version of the Constitution for an administrative state that allows the President, the Supreme Court, and various factions to supersede Congressional authority while they invade the private realm of civil society. Yet there is some evidence that he was already showing some unease over the direction of American politics, despite his reputation for being an optimistic gentleman. In his 1964 essay “American Conservatism and the ‘Prayer Decisions,’” Kendall prophesizes with uncanny accuracy that the “broad interpretation” of the First Amendment, one that is driven by liberal ideologues who are hostile to religious freedom, will create an America in which
not merely Bible-reading and prayers in the public school have to go: released-time programs must go, too, along with Christmas plays and public crèches and even religious songs; so must invocations and benedictions at school graduation exercises…so must—above all perhaps—the exemption of the property and income of religious groups from taxation.”
Over forty-five years ago, Kendall predicted the liberal agenda of freedom from religion, an agenda that totally repudiates Publius’s interpretation of the Constitution. This distorted version of church-state separation has allowed factions, in the name of “tolerance,” to make war on the Christian heritage of America that Kendall cherished.
The rise of encroachments like these into civil society perhaps explains why Kendall returned to his old love, the political philosophy of Rousseau, in his final years. This bête noire of many conservatives appealed to Kendall as far back as his youthful days as a Trotskyite journalist. Even as Kendall gravitated towards conservatism after World War II, he never turned away from Rousseau, whose influence on his thought probably rivals that of The Federalist. Rejecting the conventional conservative reading of Rousseau as a leftist totalitarian who sought to impose a “general will” where none existed, Kendall separated Rousseau from this Jacobin agenda by contending that this political philosopher was second to none in grasping that the only “majority-rule” that truly mattered at the end of the day was that which reflected the local interests against any “national mandate.” Kendall, who was fond of quoting Rousseau on the superior wisdom of Swiss peasants who gathered around oak trees to conduct their political affairs, argued in “The Two Majorities” (1960) that the local majority that voted in a congressman had a better understanding of its affairs than any president who governed according to some lofty principle that may pit Americans against each other. Factions that tried to create an artificial “General Will” in order to reinvent America through statism (e.g., judges who shut down prayer in schools) had failed to understand Rousseau as much as they had forgotten the principal teaching of The Federalist itself.
Nevertheless, there would always be another “majority” that seeks the instant fulfillment of ideological mandates from a president who is unconcerned with the diverse interests and regions of the republic. The popular will that exalts the presidency over Congress also replaces the “deliberate sense” of the people with plebiscitary democracy. The cultish love of popular “mandates” has now captured the Establishment Right as well as the Left, both of whom celebrate different (and popular) versions of the big state and the strong presidency in ways that perhaps even Kendall could not have imagined. Kendall, who loved his fellow Americans, may well have had some pithy observations about the people’s inattention to the lessons and warnings of The Federalist. Would there ever come a time when the “virtuous people” and their representatives in Congress lose the moral right to self-government? Kendall already provided a stern response in his “The Bill of Rights and American Freedom” (1964):
Again as Rousseau put it long before the Federalists put forward their arguments: If the people wills to do itself hurt—or, we may safely add, good either—who is to say it nay? And the answer, for the American system, would appear to be; in the crucial area, nobody.