Impeachment as National Renewal

As Donald Trump’s impeachment process unfolds, several commentators have turned to President Andrew Johnson’s impeachment for insight and perspective, implying that the House’s 1868 process offers positive lessons for the present. Historian Manisha Sinha suggests that the similarities of character between Johnson and Trump — both men were virulent racists who celebrated white supremacy and undermined the dignity of the presidency through their crude and vulgar behavior — illuminate the appropriateness of impeachment in each case, irrespective of any ability to actually remove these men from power. Brenda Wineapple, another historian, argues that Johnson’s example “suggests hope, the glimmering hope of a better time coming, and a means for making that happen, peacefully, reasonably and with dignity.” According to columnist Jamelle Bouie, Andrew Johnson’s clash with Congress shows that impeachment is “about the sum total of a transgressive, unethical and unlawful presidency… [and] this rhetoric must be part of the final account.” As Bouie concludes, “presidential rhetoric isn’t just speech — it is a form of power, and like most of his other powers, Trump has been abusing it.”

All of these authors recognize that these comparisons have limitations. The 1868 impeachment of Johnson failed to remove him from office — just as, in all likelihood, Trump will remain president after his impeachment. But the deeper problem is that these celebrations of the political potential of impeachment elide its undemocratic character and gloss over its problems as a means of democratic renewal.

As it happened, the promise of democratic renewal was a core feature of the 1868 trial. And the undemocratic nature of impeachment was a paradox that radical Republicans struggled mightily to overcome. They failed, and that failure has lessons for us today.

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For two years prior to the 1868 impeachment proceedings, President Andrew Johnson had been increasingly locked in battle with the Republican Congress, and especially the Radical Republican-led House, over the course of reconstructing the Southern states of the defeated former Confederacy. For the resurgent left wing of the Republican Party, the bloodshed and sacrifice of the Civil War could only be redeemed by what W.E.B. Du Bois called “abolition-democracy”: the end of slavery had to mean not only the cessation of chattel bondage but also full freedom and citizenship for formerly enslaved African Americans. In terms of civil and political rights, this meant due process, comprehensive education and, of course, the right to vote and compete for political offices.

But it didn’t stop there. Republican citizenship also had to mean independence, which had a core economic component. Without productive land of their own, most formerly enslaved individuals would find themselves dependent on the land and wages provided by Southern plantation owners — their former enslavers. The land reform promised to freed people was less a compensatory measure of reparations than a forward-looking plank of a more egalitarian interracial democracy: what radicals hoped would emerge from the ashes of the Southern chattel slave system.

In his seminal Black Reconstruction, Du Bois described this program as a “social revolution.” But it also had direct constitutional implications. Congress was reliant on the military to carry out its project of radically transforming the South. But President Johnson, the commander in chief, resisted that effort.

For Johnson, a former tailor from Tennessee whose hatred for the genteel Southern planter aristocracy was overcome only by his loathing of racial equality, the end of slavery meant just that: simply the cessation of chattel bondage and nothing more. Meanwhile, he supported the odious Black Codes passed by the states of the former Confederacy, which effectively resurrected slavery in all but name. Johnson considered these appropriate local measures to restore order in what he believed ought to remain a white man’s republic.

As Johnson vetoed one Reconstruction act after another — educational provisions, land grants, civil rights protections — white supremacist violence broke out in cities across the former Confederacy from Memphis to New Orleans. White supremacist military officials installed by Johnson stood idly by as white mobs terrorized black Southerners. The result was a constitutional crisis over the balance of powers.

The constitutional system, working as designed by the founders, meant that the Radicals in Congress were dependent on Andrew Johnson, their bitter enemy, to carry out a policy he resolutely opposed. For the Radicals, the president’s constitutional power to obstruct the popular will had to be defeated if Reconstruction was to be saved. Congressional supremacy went hand in hand with interracial democracy. As the Radical legislator Thaddeus Stevens put it, “the whole sovereignty rests with the people, and is exercised through their Representatives in Congress assembled…No Government official, from the President and the Chief Justice down, can do any one act which is not prescribed and directed by the legislative power.”

Radical Republicans rejected the conservative view that impeachment was a narrowly legal inquiry, arguing that “high crimes and misdemeanors” should be understood to include not just crimes but also political efforts to subvert the popular will. For Stevens, the status of defeated Southern states as conquered enemy belligerents enabled Congress to act in its sovereign capacity and begin transforming the Southern property system and creating a more egalitarian interracial democracy in its wake. The independent power of the presidency, the Radicals believed, should not be allowed to block this project.

For critics of Congress’s radicalism, the power of democratic majorities to impose their will on society through the legislature had to be curbed at all costs. Moderate Republican Senator Edmund Ross of Kansas, one of the seven Republicans who voted to acquit President Johnson in the Senate, recounted later that impeachment “would practically have revolutionized our splendid political fabric into a partisan Congressional autocracy…If Andrew Johnson were… acquitted by a non-partisan vote…, America would pass the danger-point of partisan rule and that intolerance which so often characterizes the sway of great majorities and makes them dangerous.”

Historians have pointed out, the assertion of legislative supremacy was precisely the point for many Radical Republicans. The New-York Tribune argued that impeachment was not “a mode of punishment, but a means of security and of avoiding political maladministration.” The Boston Commonwealth amplified this, calling on the Republicans not to stop at removing President Johnson but to eliminate the presidency altogether. The Nation reported that “some people are beginning to ask what is the use of a President at all, and to suggest the entire abolition of the office,” citing James Redpath in the National Anti-Slavery Standard, who demanded that Republicans abolish “the three remaining oligarchies”: the Supreme Court, the presidency, and the Senate.

After a few false starts, President Johnson’s impeachment sailed through the Radical-dominated House. But it foundered in the Senate. Radicals had attempted to keep the focus on the political repudiation of Johnson and the need to assert legislative supremacy, but they were ultimately unsuccessful. According to Ben Butler, one of the “managers of impeachment” in the Senate, what was required to get rid of Johnson under the rubric of “high crimes and misdemeanors” was for the Senate to find his Southern strategy “subversive of some fundamental or essential principle of government or highly prejudicial to the public interest.” In other words, if the executive was obstructing the will of the majority represented in the legislature, Congress was perfectly entitled to use impeachment to remove him for political obstructionism alone. Butler even went so far as to instruct senators, “You are bound by no law, either statute or common, which may limit your constitutional prerogative. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and that salus populi suprema est lex.” This is not the language of constitutional reverence so familiar in American political discourse. Instead, it’s the rhetoric of revolution — an example what Carl Schmitt called “sovereign dictatorship.”

Butler’s fiery rhetoric was not only premature but was also at odds with what many members of his own party felt. Most Republicans preferred to veil their transformative project by professing their adherence to the Constitution. Future Supreme Court Justice Salmon P. Chase, who was sympathetic to white supremacist efforts to roll back Reconstruction and was seeking the Democratic presidential nomination, presided over the trial and forced it onto narrowly legalistic grounds. Chase’s interpretation of impeachment prevailed in the Senate, and Johnson was saved from removal by a single vote. The radical attempt to reconfigure impeachment as a democratic instrument for asserting legislative supremacy collapsed under the weight of American legalism, or what Du Bois called “fetich-worship of the Constitution.”

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For Radical Republicans like Thaddeus Stevens, Charles Sumner, and Benjamin Butler, impeachment wasn’t just about getting rid of Johnson — as execrable as he was — and still less about punishing Johnson’s improprieties against “the dignity of the office.” Rather, impeachment formed part of a full-blown constitutional revolution, a necessary aspect of the social revolution they were undertaking to create a more egalitarian interracial democracy. As the legislative supremacy championed by Stevens and other Radical Republicans suggests, they saw impeachment as a vehicle for overcoming the founders’ design of using checks and balances to fragment the popular will and obstruct the capacity of democratic majorities to create a more just society through the state. The stakes were far too high to rest content with impeachment as the symbolic reprimand celebrated by some recent commentators. Failure to remove Johnson was, to them, a catastrophic defeat.

The unsuccessful attempt to remove Andrew Johnson is also a cautionary tale about the limits of our capacity to repurpose non-democratic institutions for democratic purposes. Today, Americans live under a national government of sweeping minority rule — a president who won the Electoral College despite losing the popular vote, a Senate whose Democratic minority represents forty million more people than its Republican majority, and an unelected Supreme Court whose conservative majority includes two justices nominated and confirmed by these other two minoritarian branches. Whatever the symbolic satisfactions offered by impeachment, any prospect of genuine democratic renewal must begin by confronting the undemocratic constitutional system that produced this state of affairs. Impeachment, by itself, won’t get us there.

Ian Zuckerman teaches politics at Regis University. He is writing a book about emergency powers, entitled The Politics of Emergencies: War, Security and the Boundaries of the Exception in Modern Emergency Powers.

Daniel Kato taught American politics at Kalamazoo College, Barnard College, and Queen Mary University of London. His book, Liberalizing Lynching: Building a New Racialized State, was awarded the 2016 Charles Taylor Book Award. He passed away in November 2019.