Revisiting David E. Kyvig’s “The Age of Impeachment”

Some books seem to live forever, others live multiple lives.

In the summer of 2017, as President Trump was making news with pardons, Jeffrey Crouch’s 2009 book The Presidential Pardon Power began to garner a lot (like, a lot!) of attention.

No, thanks again to President Trump, David E. Kyvig’s 2008 book The Age of Impeachment; American Constitutional Culture since 1960 is roaring back to life.

In this magisterial work, Bancroft Prize-winning historian David Kyvig chronicles the rise of a culture of impeachment since 1960—one that extends far beyond the infamous scandals surrounding Presidents Richard Nixon (Watergate) and Bill Clinton (Monica Lewinsky) and has dramatically altered the face of American politics.

A buzz word in today’s public life, “impeachment” was anything but that before 1960. Since then it has been transformed from a historically little-known and little-used tool of last resort into a political weapon of choice. By examining the details and consequences of impeachment episodes involving three Supreme Court justices, a vice president, five federal judges, and four presidents, Kyvig explores this seismic shift in our constitutional culture and gauges its ongoing implications for American political life.

Beginning with the John Birch Society’s campaign against Chief Justice Earl Warren, impeachment efforts became far more frequent after 1960, with eight actually ending in resignation or removal. In describing these efforts, Kyvig recounts stories and subplots about key political actors and the controversies they inspired. He argues that judicial cases are as important as the better-known presidential ones and shows why those cases that did not proceed—against not only Warren, but also Abe Fortas, William O. Douglas, Spiro Agnew, Ronald Reagan, and George W. Bush—are as illuminating as those that did.

Kyvig demonstrates that impeachment has been the bellwether of a changing—and increasingly toxic—political climate. Perhaps most important and ominous, the increasing threat of impeachment has encouraged presidents to hide potentially impeachable actions behind a thick veil of executive secrecy, while dramatically expanding executive power beyond the reach of either Congress or the courts

Combining political and legal history at their best, Kyvig also explores the cultural impact of journalist David Frost, editorial cartoonist Herblock, and filmmakers Alan Pakula, Robert Altman, and Oliver Stone. A gifted storyteller, he presents a cautionary tale that should be read by all who care about our national government and its ability to survive and thrive in perilous times.

Sarah Burns (“The Politics of War Powers”) Q&A

The Constitution of the United States divides war powers between the executive and legislative branches to guard against ill-advised or unnecessary military action. This division of powers compels both branches to hold each other accountable and work in tandem. And yet, since the Cold War, congressional ambition has waned on this front. Even when Congress does provide initial authorization for larger operations, they do not provide strict parameters or clear end dates. As a result, one president after another has initiated and carried out poorly developed and poorly executed military policy. The Politics of War Powers offers a measured, deeply informed look at how the American constitutional system broke down, how it impacts decision-making today, and how we might find our way out of this unhealthy power division.

  1. What’s your elevator pitch for The Politics of War Powers? How would you describe the book in two or three sentences?   The book examines the theoretical and historical development of war powers in the United States. I demonstrate how the constitutional system creates an invitation to struggle that the political branches increasingly ignore to the detriment of our foreign policy.

2. What was your inspiration to research and write about the theory and history of presidential unilateralism?  I became interested in this topic when I was in grad school in 2011. In March of that year, Obama decided the United States had to address the humanitarian crisis in Libya by creating a no-fly zone with UN and NATO allies. He sent a letter to Congress claiming that he had the power to do so as Commander in Chief and Chief Executive. He then used evasive words, such as “national security” and “regional stability,” to justify the unilateral initiation of hostilities. More surprising, was the reaction from Members of Congress and Republicans Members in particular. Many in Congress expressed anger at Obama’s unconstitutional actions and yet they failed to do anything to either support or oppose him. They were so undecided that they had votes to support and oppose his actions on the same day. I was intrigued, was this something unique to Obama’s relationship with Congress or was this indicative of a trend?

3. What was the most challenging aspect of researching and writing the book?   Handing in the full manuscript! Besides that, developing a clear thesis that goes through hundreds of years of history was a big lift. I also examined a lot of very well-researched presidents during important wars (such as Abraham Lincoln’s action in the Civil War and Franklin Roosevelt’s action in World War II). Finding a way to make a real contribution was a daunting challenge.

4. Your book  concludes—after tracing changes through Franklin Delano Roosevelt’s administration, the Cold War, and the War on Terror—is that presidents now command a dangerous degree of unilateral power. How has that manifested itself in the past 20 years?   What we see in George W. Bush, Barack Obama, and Donald Trump’s administrations is a staggering ability to make unilateral decisions in the realm of foreign policy in general and military operations specifically. If we look at Obama’s and Trump’s decision making when it comes to Afghanistan, Iraq, and Syria, there is not only very little input from Congress, but also very little deliberation or grand strategy. The public lacks good reasons for their unilateral decisions and Congress fails to hold them accountable in a serious way. I would go so far as to say that even when Congress has authorized military operations, as they did against Afghanistan and individual terrorists in 2001 and against Iraq in 2002, they failed to provide guard rails or serious limitations to presidential unilateralism.

5. In your opinion, is there likely to be a swing away from the executive branch wielding unilateral power?   I was slightly hopeful when Trump came to power that we would see a more aggressively assertive legislative branch. I am less hopeful now. In part, due to partisanship and the dramatic increase in polarization, the best we can hope for is that a Congress dominated by the opposing party will hold a president accountable. That’s the best-case scenario. I think we are more likely to see biased or political efforts to tear down the sitting president. I think it’s safe to say people on the left felt that Obama faced a Congress focused on trying to undermine his agenda. I think those who support Trump feel the same.

6. What is one thing you would like readers to take from your work?   That’s such a hard question! I think the big take away should be how difficult it is to maintain a healthy constitutional system; how easily it can break; and how hard it is to fix it once it’s broken.

7. If you could have any one person read your book, who would it be and why?   I’d say American voters. The reason we don’t have members of Congress who stand up to the President is because the voters keep letting them get away with it. If we want a more assertive Congress (and we should), we have to be the ones who vote for it.

Sarah Burns is assistant professor of political science at Rochester Institute of Technology.

The University Press and Building Community

For Danny Caine, owner of the Raven Book Store in downtown Lawrence, Kansas, building community is just another part of the job.

“What are we without a community?” Caine asks with a sense of sarcasm. “Of course we’re working to build a community around books.”

In the two years since Caine bought the renowned Lawrence bookstore in 2017, the Raven Book Store and the University Press of Kansas (UPK) have partnered on dozens of author events. Caine is a passionate supporter of independent businesses and works tirelessly to promote companies he feels are fighting the good fight.

“Our relationship with UPK is mutually beneficial,” Caine explains. “We work hard to offer a curated selection of books to our audience, and the press provides the fantastic regional books that many of our customers want. UPK produces the beautiful, thoughtful works we want to put on our shelves, and we know when we host a UPK author that they will attract an engaged crowd.”

Caine’s work to build a literary community in Lawrence has taken an ambitious turn. This summer he announced the inaugural Paper Plains Literary Festival (April 23–26, 2020), featuring poets, novelists, and young adult fiction writers.

“I was confident Lawrence would support the idea of a festival featuring authors and poets,” Caine says. “We’re really excited about the lineup we have coming to town, and the feedback says the community will embrace it.”

Paper Plains will be Lawrence’s first literary festival. UPK has assisted in its planning and is excited to host author Dan Flores (American Serengeti) and a roundtable discussion featuring regional UPK authors.

“It’s great having UPK involved with Paper Plains,” Caine says. “The press has a reputation for producing engaging, challenging work, and we’re excited to have them involved in the festival.”

Much like the work Caine is doing at the Raven, Lawrence Public Library Events Coordinator Kristin Soper is actively working to serve the educated community in Lawrence.

“This is a university town, so we know our audience is expecting well-researched ideas,” Soper says. “Our relationship with UPK is great. Actually really great.”

Soper traces the library’s relationship with UPK back to a single book.

“Really, it was C.J. Janovy’s book (No Place Like Home: Lessons in Activism from LGBT Kansas) that spurred our relationship with UPK,” she says. “We hosted two events with C.J. that were really exciting and well-attended, and those were eye-opening for us.”

Soper says a relationship with the University Press of Kansas has helped fill a need.

“Since our first event [with] C.J. Janovy a few years ago, our relationship with UPK has really helped fulfill a need for regional topics,” Soper explains. “The press does a phenomenal job publishing books of regional interest, and we know when we bring in one of their authors we will draw a crowd of engaged, intellectual readers.”

The University Press of Kansas and the Lawrence Public Library have partnered on events ranging from C.J.‘s talk about LGBTQ activism in Lawrence to a local author’s story about his scientific grandfather.

“Our relationship with UPK is great,” Soper said. “Our job at the library is to serve our community, and working with the press and their authors has been a tremendous benefit for both of us. We get to bring in intelligent, thoughtful authors who have written great books, and the press gets to build their brand within the Lawrence community.”

 

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The Jayhawks, Sanctions and the Role We All Play…

by Andrew Malan Milward, author of Jayhawker; On History, Home, and Basketball

In 2016 I was hired as an English professor at Auburn University. After the fall semester, I called an old writing buddy of mine to catch up. I liked the town and university very much, but I also tried to tell my friend how crazy the football fandom was in Auburn. He listened to me talk about the flotillas of RVs that started arriving to tailgate on Wednesdays before home football Saturdays and how the town’s population doubled on gameday because so many people came in from out of town for the game. He listened to me talk about the millions of dollars that were just spent to give Jordan-Hare Stadium the largest Jumbotron in the country and how head coach Gus Malzahn seemed to get a lucrative contract extension after every win and then would suddenly be on the hot seat after every loss. My friend listened to this and much more and when I was finished, his response was: “So, basically, you work at a shell company for a professional football team.” I laughed because it was a funny joke, but it was the kind of laugh that caught in my throat because I knew there was some serious truth in what he had said.

I know something about sports fandom. I was born in Lexington, Kentucky, and I was raised in Lawrence, Kansas, so I was geographically predisposed to be obsessed by basketball. UK and KU are the two winningest college basketball teams in the history of the sport, which means I come from places where lunatic fandom for the men’s basketball team is the norm. And, indeed, I am a fan, a real sports junky whose spirits and moods have a direct correlation to the rise and fall of the winning percentage of teams I adore, and there’s no team I adore more than the University of Kansas men’s basketball team. Given the amount of time I devote to watching, thinking, and writing about sports, I could easily add Fan to my business card next to Writer and Professor.

At present, like many KU fans, I’m both excited for the start of the new season but also anxious about the future. The ongoing and unfolding scandal surrounding the University of Kansas men’s basketball team and its relationship with Adidas is real, and while we wait to learn the full fallout from the NCAA’s recent Notice of Allegations it seems likely that there will be serious repercussions. Scandals of this sort, of course, are nothing new, and none but the most naïve onlookers wearing rose-colored specs should be surprised that they have happened and will continue to happen because players have been receiving so-called improper benefits forever. Wilt Chamberlain, the greatest player ever to don the crimson and blue, talked openly in his autobiography about how KU boosters paid him to come to Lawrence. He was, and is, not alone, and neither is KU. It’s not a question of whether it’s happening; it’s a question of how it happens, who gets caught, and how badly they will be punished.

Perhaps that sounds cynical, but I think it’s just the logical and predictable outcome of a situation in which, to borrow my friend’s pithy turn of phrase, we’ve let universities turn into shell companies for professional sports teams. There’s simply too much money involved for this game to be uncorrupted and ‘pure,’ the way some fans want to believe it is, and the way the NCAA certainly wants us to continue thinking it is. The role of money and worry over its potential to corrupt the game is nothing new, I should say. It goes back nearly to the beginning of the sport. In 1911, James Naismith, the inventor of the game and KU’s first coach, gave a speech that was transcribed and published as an article titled “Commercialism in Sports” for the Graduate Magazine of the University of Kansas. It is a well-written and carefully argued polemic about the “insidious growth of commercialism” and its ability to “destroy one of the greatest forces of education.” Naismith believed, correctly I think, that commercialism leads to over-training and the breaking down of athletes’ bodies, it makes work of sport and turns it into a spectacle instead of recreation, it puts the emphasis on winning instead of enjoyment and personal development and thus encourages breaking the rules and stimulates betting. He also thought it leads to “worship of the dollar” and “class distinction, for when a man is paid for his services in athletics he is on a different level from the man who buys him.”

Over one hundred years after Naismith gave this Cassandra-like warning about commercialism, I imagine him going absolutely centrifugal in his grave right now, given the current landscape of sports, particularly basketball and football, in universities. As William J. Baker writes in his introduction to Naismith’s book, Basketball: Its Origin and Development, “Whatever its later commercial developments, basketball was made for principled play, not for profit…. Naismith designed his new game for athletes to enjoy, not for coaches, television networks, or corporate sponsors to control.”

photo from ksha.org

Naismith’s star pupil and successor as KU’s coach, Phog Allen, however, was quick to realize the monetizing potential of the game. One of the issues he and Naismith clashed over was whether tickets should be sold for KU games, which had quickly become quite popular in the years after Naismith brought the sport with him to Kansas from Massachusetts. Rob Rains writes in his biography of Naismith, James Naismith: The Man Who Invented Basketball, that “Allen wanted to use the strong interest in basketball that was developing on campus to generate as many sold tickets as possible, while Naismith considered selling tickets an exploitation of the student athletes. Allen argued that bringing money into the university through the sale of basketball tickets would benefit the other university sports as well.” Of course, ultimately, Phog’s opinion won out. Money has a way of making that happen.

I think they were both right, at least in theory. And yet, selling 10-cent tickets for admission to a game isn’t exactly on the same scale as earning hundreds of millions of dollars in sponsorship deals and television contacts. How we got from there to here is a longer, much more complicated story than I’m capable of telling here, but in short it has a lot to do with the growth of American business after World War II and the commodification of so many aspects of our lives theretofore unknown. However, it also has to do with the growth and popularity of the game. That is to say, it has a lot to do with us and our intense fandom that demands winning and thus incentivizes massaging, bending, and sometimes breaking the rules. (Whether we think those rules are sensible or foolish is another matter altogether). We should remember this when the penalties come down on our beloved Jayhawks and we’re sad and angry and eager to cast blame. Here are my own thoughts on that matter: the players certainly aren’t to blame, even the ones who knowingly accepted money. The coaches and shoe companies, sure. The agents and the NCAA, you bet. But so am I and people like me, the fans who love the game all out of proportion. We are all complicit in this scandal and we should be part of finding a solution.

I don’t pretend to have all the answers, but our love and demand for the game has created a mighty big and lucrative pie, so it seems sensible to let players have some of it, not just coaches, universities, and the NCAA. We should allow players to profit on their name, image, and likeness, allow them to have a job or profit on their abilities the same way every other college student can, and we can provide all players, from stars to the last person on the bench, with a modest monthly living stipend and lifetime academic scholarships.

Thankfully we are finally starting to see movement on some of these issues. If nothing else good comes from the scandal, perhaps it will have at least pushed the conversation forward and helped usher in necessary changes. I think that’s something all of us fans should cheer for.

Andrew Malan Milward was born in Lexington, Kentucky, and raised in Lawrence, Kansas. A graduate of the Iowa Writers’ Workshop, he is the author of two short story collections, The Agriculture Hall of Fame and I Was a Revolutionary. His fiction has appeared in many venues, including ZoetropeAmerican Short FictionVirginia Quarterly ReviewThe Southern ReviewGuernica, and Best New American Voices and has been a finalist for the National Magazine Award. He is an assistant professor of English at the University of Kentucky.

Keith E. Whittington named Thomas M. Cooley Book Prize Recipient

WASHINGTON, D.C. – Georgetown Law’s Center for the Constitution will award its third Thomas M. Cooley Book Prize of $50,000 to Professor Keith E. Whittington of Princeton University for his book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (University Press of Kansas, 2019).

“This book is a must-read for any serious student of our Constitution and how it actually works,” said Georgetown Law Professor Randy Barnett, director of the Center for the Constitution.

Repugnant Laws presents the most comprehensive account of every Supreme Court decision reviewing the constitutionality of a federal statute since the nation’s founding.

This is the second UPK book to receive the prize. Gary Lawson & Guy Seidman’s A Great Power of Attorney won in 2018.

“Facts matter and this book provides them,” Barnett said. “From now on, no discussion of the practice of judicial review can ignore the book’s empirical findings. The most cynical political scientist will need to come to grips with its conclusion that ‘the justices are not lapdogs, and they have often bitten the hand of the party that put them on the bench.’ At the same time, idealists will need to incorporate its findings that the ‘justices have proven themselves to be allies of [their] political coalition leaders.’”

The Center for the Constitution established the Thomas M. Cooley Book Prize, Symposium & Judicial Lecture to recognize exceptional books written that advance our understanding of, and commitment to, our written Constitution. The third annual event will be held at Georgetown Law over two days, March 19-20, 2020.

On the opening evening, Judge Neomi Rao of the U.S. Court of Appeals for the District of Columbia Circuit will deliver the event’s annual judicial lecture, which is open to the public.

The next day, the Cooley Book Prize ceremony will be held as part of a daylong invitation-only symposium focused on Whittington’s book. Featured political scientists and scholars of the judiciary will share commentary about the book, including Georgetown Law Dean William Treanor and professors Nancy Maveety (politics, Tulane University), Chancellor Howard Gillman (law, Univ. of Calif., Irvine), and Adam Carrington (politics, Hillsdale College).

Professor Whittington will join these scholars and a group of constitutional law professors from area law schools to discuss the issues raised by the book and papers — which will be published in a special issue of the Georgetown Journal of Law & Public Policy.

The Cooley Book Prize, Symposium & Judicial Lecture honor the renowned legal scholar and jurist Thomas McIntyre Cooley. Cooley was a longstanding chief justice of the Michigan Supreme Court, and a professor at the University of Michigan Law School, where he also served as the dean. He authored several highly influential books, including A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union.

Keith E. Whittington is William Nelson Cromwell Professor of Politics at Princeton University. His many books include Political Foundations of Judicial SupremacySpeak Freely, and, also from Kansas, Constitutional Interpretation.