Davis Merritt: Impeachment bill subverts the constitution

In 1998, as Congress and the nation wrestled with the impeachment of President Clinton, constitutional scholar Alan Hirsch wrote:

“At its best, it (impeachment) distinguishes our commitment to democracy. At its worst, it is the triumph of power politics and partisanship over democracy, and that way lies authoritarianism.”

When they return from a monthlong recess April 27, Kansas conservative legislators are likely to head recklessly down that dark road. Senate Bill 439 will, in effect, rewrite the Kansas Constitution, something the Legislature has neither a legal nor a moral right to do, because the constitution reflects the direct, expressed will of the people; laws passed by legislatures reflect only the will of those legislators.

SB 439 expands by statute the constitutional definition (“treason, bribery or other high crimes and misdemeanors”) of impeachable offenses.

It specifies a dozen behaviors, including “attempting to subvert fundamental laws” and “attempting to usurp the power” of the other branches of government.

If those two phrases remind you of constant complaints by legislators about the judicial branch, particularly the Kansas Supreme Court, they should, because SB 439 is designed to destroy the concept of co-equal and independent legislative, executive and judicial branches that is so vital to everyone’s liberty.

Under it, justices would serve at the pleasure of the legislators rather than as independent adjudicators. And when that happens, we will have reached Hirsch’s “triumph of power politics and partisanship over democracy.”

That’s no exaggeration. Anytime the court declares a state statute unconstitutional, the justices could be charged with the vague “attempting to subvert fundamental laws,” and removed from office.

When the justices order the Legislature to meet the constitutional standard of “suitable” financing of public schools, they could be charged with “attempting to usurp the power” of the Legislature to appropriate funds. The Legislature has the sole power of impeachment, and there is no appeal to anyone from its decision.

Among the many other things wrong with SB 439:

▪  The Legislature, at any given moment, is acting on behalf of a transient majority of voters. But in a republic, the will of that shifting majority as expressed in legislative acts does not cancel the individual rights guaranteed to everyone by the constitution. When those two concepts conflict, the only way an individual can assert individual rights is through an independent court system, which the constitution gives the sole power of declaring what the law is and how it applies.

▪  Both the federal and state constitutions clearly intend for the impeachment power to be used only in the severest cases of individual wrongdoing. SB 439 ignores the fact that a Supreme Court can act definitively only when at least four (of the seven) Kansas justices agree that a law is unconstitutional. Does that mean we would have a mass impeachment with four or more justices removed at once?

▪  What if a citizen sued the legislators for usurping the people’s exclusive power to amend the constitution? What court would hear that case and how would the newly all-powerful legislative branch respond to an adverse ruling?

The fact that some people are upset by some court rulings cannot possibly justify destroying the very basis of democracy and individual liberties.

This story was originally published April 4, 2016 at 7:04 PM with the headline "Davis Merritt: Impeachment bill subverts the constitution."