In this Article, Professor Turley addresses the use of impeachment, specifically the Senate trial, as a method of resolving factional disputes about an impeached official's legitimacy to remain in office. While the Madisonian democracy was designed to regulate factional pressures, academics and legislators often discuss impeachments as relatively static events focused solely on removal. Alternatively, impeachment is sometimes viewed as an extreme countermajoritarian measure used to "reverse" or "nullify" the popular election of a President. This Article advances a more dynamic view of the Senate trial as a Madisonian device to resolve factional disputes. This Article first discusses the history of impeachment and demonstrates that it is largely a history of factional or partisan disputes over legitimacy. The Article then explores how impeachment was used historically as a check on the authority of the Crown and tended to be used most heavily during periods of political instability. English and colonial impeachments proved to be highly destabilizing in the absence of an integrated political system. The postcolonial impeachment process was modified to convert it from a tool of factional dissension to a vehicle of factional resolution. This use of Senate trials as a Madisonian device allows for the public consideration of the full record as the foundation for a vote of "true consent." In this unique forum, an impeached official is subject to a decision of the public-through the cipher of the Senate-as to his legitimacy in carrying out constitutional duties. As such, Professor Turley concludes that, properly utilized, the Senate trial represents the quintessential Madisonian moment.
Senate Trials and Factional Disputes: Impeachment as a Madisonian Device,
49 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol49/iss1/1