Skip to main content
Find a Lawyer


Thursday, Jul. 19, 2001

From both sides of the aisle, the now notorious scandal involving Representative Gary Condit (D. -CA) — which includes revelations of a series of extramarital affairs with young women, subsequent dissembling to the police about the same, and the disappearance of Condit's latest paramour, Chandra Levy — has provoked extreme pronouncements.

Senator Trent Lott intoned that every member of the House who has had an extramarital affair ought to resign; Senator Ted Kennedy gamely responded that the House would then be empty, implying that adultery should never justify resignation. The self-righteous meets the aggressively immoral. Neither one has it right.

The Framers' View of Representatives

Both Senators were drawing upon crucial elements of the system of representation the Framers set in motion: Lott was holding up the ideal, virtuous man as the best representative, with Kennedy acknowledging the representatives' inevitable human frailty. But neither's insight works without a blending of the other's. Both fail to embrace the Framers' touchstone--whether the people are being served.

The Framers, and especially master architect James Madison, fervently hoped that virtuous men would become public servants. However, Madison also obsessed over the tension between the system's foundational assumption that virtuous men would serve, and his own belief that such men were few and far between.

Madison was right — and fortunately, the Constitution took his fear into account, by enumerating, limiting, and checking power. Indeed, the overriding theme of the Convention was a frank belief in the fallibility of man and, especially, the likelihood that all those who hold power will abuse it. The Framers combined distrust with hope to turn out a system that demands the most of representatives at the same time that it frankly acknowledges their natural limitations.

Why the Framers Were Correct

From the Framers' perspective, who can doubt that Senator Kennedy's assessment is likely to be accurate? Members of Congress are elected by large numbers of people to be their lawmakers in the most successful democracy in history. Show me the member who arrives in Washington without being awed by the enormity of his or her role, and I will show you a dim bulb. This is power, real power, they hold. The temptation to translate that power into a prescription for transcending moral strictures may be nearly irresistible.

And the temptations extend well beyond extramarital affairs; representatives may easily be seduced into entering into sweetheart deals with lobbying groups to retain power, or into shelving the national interest when a tasty morsel of pork for the "folks back home" becomes available.

Time for Condit to Resign

Contrary to Lott's and Kennedy's assertions, however, the trigger for a representative's resignation should not be whether the member has fallen to the temptations of power. The relevant question, according to the design of the Constitution, is whether the member is serving the public interest.

Have philanderers occasionally served the public interest while they destroyed their marriages? Surely — just as those selling out the national interest to the lobbyist across the desk have failed the people, even if they have never cheated on their spouse once. The touchstone is the needs of the people, not the sins of the representative.

But Condit, by now, has been shown to be much more than merely a philanderer. Reports indicate that he dissembled to the police after Levy's disappearance. He also has refused fully to cooperate with the police — by, for example, staging his own lie detector test, rather than taking theirs.

Thus, the question in the Condit scandal is not whether he played around behind his wife's back, but rather whether he is capable of continuing his duties to the people. Should this man continue to make the nation's law? The answer should be obvious.

There is no explicit constitutional requirement that Condit step aside at this point, that is for sure. But the measure of a good representative lies in whether the people come first. Condit's ability to serve has been so severely compromised that he cannot possibly be serving his constituents well at this point. He should step aside.

Like President Bill Clinton, Condit finds himself in the midst of a huge scandal, caused in no small part by his own lack of judgment in, first, having an affair and, second, dissembling about it. Condit should step down in the interest of the people — following the moral compass Clinton ignored. When a scandal becomes the primary focus of the representative's day, whether he is in the House, the Senate, or the White House, the high road is resignation.

Avoiding the Temptation to Keep Power for Power's Sake

There is no new lesson in the Condit scandal, but rather a powerful reminder of the Framers' frame of reference: demand that your representatives place the public good first, but assume that they will be tempted to walk away from the public interest as they revel in the power you have handed them.

The delegation of power to representatives is not an end in itself, but rather the means by which the country's business can be transacted. We, the people, often forget that just as our representatives are charged with the job of conscientiously serving our goals, we, conversely, are charged with the job of monitoring our representatives. Condit's imbroglio is a wake up call, warning us to pay attention not just to infidelity, but also to all the ways in which our representatives exercise power.

Adultery may not be sufficient unto itself to justify resignation. But as Gary Condit has found, adultery (like a thousand other misdeeds) starts down the road that leads to other misdeeds (such as lying) and ultimately to the greatest temptation of all: the temptation to hold onto power simply to hold onto it.

Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is

Was this helpful?

Copied to clipboard