Confronted with allegations of perjury, obstruction of justice, and other misconduct committed by President Clinton,(1) members of the 105th and 106th Congresses battled mightily over the constitutionality of not only impeachment, but also an alternative method of punishment: censure.
Unlike impeachment, however, censure has no obvious constitutional home. The debate over its legality thus centers primarily on historical practice, rather than constitutional text.(2) After all, in cases of constitutional ambiguity, a well-established pattern of historical practice involving deliberate actors operating conscious of their constitutional constraints may affect our understanding of what the Constitution requires, forbids, and allows. As the Supreme Court has often noted, we may look past our own skepticism and to historical practice if over time there has developed an accumulated wisdom as to what the Framers of the Constitution must have intended.(3)
Impeachment watchers thus will recall that censure supporters and opponents alike cited the 1834 Senate resolution against President Andrew Jackson(4) to bolster their constitutional arguments. Clinton allies who supported censure as a means of stemming the impeachment tide cited the Jackson episode as historical precedent.(5) Clinton detractors, perhaps out of fear that their adversaries' plan would work, cited the very same events as a lesson in what not to do, noting both the force of Jackson's arguments and his ultimate vindication when the Senate expunged the resolution three years later.(6)
Unnoticed by both sides, however, was the fact that the Senate did not actually censure Jackson. The resolution did describe the events in controversy and conclude that Jackson's act was improper, but it did not inflict any punishment. It did not remove him from office. It did not disqualify him from seeking future office. It did not fine him. And it did not condemn him with words of censure.
Throughout history Congress has commented on all manner of subjects through resolutions. The Senate was thus filling a well-established role -- and nothing more -- when it opined that Jackson had committed certain acts in violation of the Constitution and the laws of the United States: "Resolved, That the President, in the late executive proceedings in relation to the public revenue, has assumed upon himself authority and power not conferred by the constitution and laws, but in derogation of both."(7) By approving this resolution senators simply recounted the events as they saw them and noted their disagreement with the legality of the President's actions, leaving it to others -- historians, the American people -- to determine Jackson's fate, and the state of his honor. The resolution merely described what the President had done; it did not indicate what, if anything, Congress would do in response, either in the form of words of condemnation and censure, or some other, more tangible disciplinary action.
By contrast, the resolutions contemplated by the 105th and 106th Congresses did not merely describe Clinton's actions and express congressional disapproval of them. Rather than restrict Congress to the role of commentator, the Clinton resolutions would have put members in the role of disciplinarian. Like the Jackson resolution, the Clinton resolutions recounted the various evil deeds committed by the President, such as "deliberately misle[ading] and deceiv[ing] the American people, and people in all branches of the United States government"(8) and numerous other wrongs. But the Clinton resolutions took a critical additional step by stating that "the United States Senate does hereby censure William Jefferson Clinton ... and does condemn his wrongful conduct in the strongest terms."(9) Through those resolutions, members of Congress sought to inflict punishment upon the President, albeit with only words of condemnation and censure, rather than removal or fine. …