Monday, January 01, 2007

"Our Constitution Works"--Except When We Prevent It

When I wrote recently about Ford's pardon of Nixon, I got some criticism from certain members of Daily Kos who felt I was guilty of overstatement or distortion in saying that Ford's pardon of Nixon "violated the spirit of the Constitution and the express intentions of the founders."

I thought I was being careful in evoking "the spirit of the Constitution." The pardon admittedly could be justified by a narrow reading of the document, which does, after all, give the president a seemingly broad power to issue pardons. But when we read the Constitution in its totality, we see that the founders were deeply concerned about limiting the powers of the executive, holding government officials strictly accountable for their deeds in office, and ensuring that no one is above the law--all matters of the "spirit" of the Constitution that, I think, Ford's pardon violated.

Perhaps another way of getting at my point is via this insightful post by David Kurtz over at Talking Points Memo. Kurtz quotes historian Michael Beschloss describing how fortunate it was that Jerry Ford became vice president under Nixon (and, of course, president after Nixon's resignation). As Beschloss recalls, Nixon's first choice for the post was John Connally, who soon thereafter was indicated for perjury and obstruction of justice. Beschloss wonders how "faith in our system" would have survived yet another presidential scandal on the heels of Watergate.

It's true, of course, that a Connally presidency would have been a blot and a headache for America. But, as Kurtz points out,
the sort of faith in the system that Beschloss is talking about is a blind faith. The system per se didn't prevent such a turn of events. Happenstance (and the greater likelihood of Ford being confirmed as vice president) ultimately led to a Ford rather than a Connally presidency. If your faith in the system is predicated on something not happening that very well could have happened, and that could happen again, then that's not faith but wishful thinking. It's the same sort of fair-weather faith that leads to the rather incoherent argument that to try a President for a violation of the law would threaten the system of laws. What Beschloss credits as faith is actually fear.
I think Kurtz has it right. When Ford took office after Nixon's resignation, he referred to Americans' "faith in the system" when he said in his initial speech that "Our Constitution works." But "the system" can't refer to one or more fortunate occurrences that take place because of luck or because a particular office holder chooses to do the right thing. It refers to an entire structure of Constitutional processes that is designed to force action by responsible officials when serious crimes against the nation are committed.

Nixon's resignation did reflect the appropriate workings of "the system" because it took place only after the weight of evidence about Nixon's misdeeds, together with the hearings, deliberations, and votes of the House Judiciary Committee, had made his impeachment and conviction virtually inevitable. In other words, the structure of processes created by the founders to facilitate the exposure and punishment of crimes by high government officials was doing its job, and it was pressure from these processes that induced Nixon to quit.

By contrast, Ford's pardon of Nixon short-circuited the further workings of "the system." The Constitution specifies that those who have been impeached and convicted remain subject to criminal indictment and punishment. Ford's intervention prevented this second process from working itself out. (And we now know that Ford did this not merely to "heal" the nation but because of his close lifelong friendship with Nixon: "I didn't want my real friend to have the stigma.")

What Beschloss calls our "faith in the system"--the same belief that Ford himself invoked when he declared, "Our Constitution works"--is very much what I had in mind when I wrote (somewhat vaguely) about "the spirit of the Constitution." This faith, this spirit, is damaged when it appears that the workings of the system will be short-circuited on the arbitrary say-so of one or a few government officials whenever they deem it necessary.

And that faith is damaged further when citizens (at least those with longish memories) can't help noticing that the arbitrary rulings that stymie the workings of the law--from the Ford pardon to Bush's pardon of the Iran-Contra criminals to the Supreme Court's halting of the Florida recount in Bush v. Gore--always seem to benefit members of the same political party.

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