Gerald Ford (R. Mich.) as quoted in the Congressional Record for April 15, 1970: “An impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history.”
Does Ford’s famous comment on impeachment make sense? Kinda, if you don’t have anything else to go on. Well, Yale law professor E. Donald Elliott and his mentor, Yale law professor and Dean Harry H. Wellington, would ask you to reconsider. Ford’s comment stems from a highly contentious legal philosophy called positivism or “legal realism”. Positivism straitjackets the meaning, purpose, and assessment of law to “the acts of government officials”.
Ok, so what’s the rub? Simple, according to Wellington, the idea lacks a “theory of mistake”. The concept has no place for the law being wrong. To put it bluntly, it is what it is. Thus, it’s a convenient theory for freeing up the law from any connection to morality. The 20th century’s thugocracies – fascism, communism, Maoism, Stalinism, Jim Crow – found it useful. And so do our own progressives and law-making guiding lights. Perform an official act and there’s no need to rack your conscience about the morality of it. Just do it, as Kaepernick intones.
Cuxhaven, Germany, July 27, 1933
The Dems agree, “Just do it” – impeachment that is – even if untethered from the Constitution’s standard of “treason, bribery, and other high crimes and misdemeanors”. Though it must be admitted that quid pro quos, the firing of an ambassador, disagreements over foreign policy, and a person’s deportment as president don’t quite fit the Constitutional bill. For Schiff and company, no matter. Make it “official” even if it’s based on rank innuendo, hearsay, and politically useful bureaucratic carping.
Plenty of injustice was committed under the banner of legal positivism. Just because a past Republican mouthed the dangerous nonsense doesn’t make it any less dangerous.
RogerG