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Litigation Journal

Fall 2021: Discovering

Impeachment and Original Intent

Robert E Shapiro

Summary

  • The impeachment articles are a part of the separation of powers, which serves several different goals.
  • The living constitutionalists want not to be bothered by any kind of consideration of the founders’ highly developed understanding.
  • The originalists deny it is possible to reconstruct the Constitution.
Impeachment and Original Intent
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Indeed, it was one of the most striking elements of the second impeachment proceeding against former president Donald Trump that it showed how what might be called “expounding the Constitution” can be, and is, an urgent necessity. During that process, arguments flew hither and thither regarding what the Constitution means and what the founding fathers intended in the case of the several provisions relating to impeachment of a president, without much of a resolution. Public officials called upon to address the weighty responsibilities of constitutional decision-making and pundits weighing in on the nightly news shows or streaming their commentaries all found themselves expounding upon the Constitution in a knowing but often unpersuasive way. The public looked on, with perhaps a little less ideological fervor, wondering what it is our system allowed or prohibited. The process hardly seemed satisfactory and failed to produce any consensus or certainty.

Nor was this the first such occasion, even for contemporary times. During the Nixon impeachment proceedings, and those for former president Clinton, and even the first Trump impeachment, the phrase “high crimes and misdemeanors” captured the attention of the cognoscenti and an interested public alike. “Expounding the Constitution” in those cases led easily to the conclusion that “misdemeanors” was not intended to be, well, misdemeanors. Instead, the word had to be taken in context, within the technical phrase “high crimes and misdemeanors.” But what were those? The commentators, then as now, tried to outdo each other in explaining what the founders had in mind, offering evidence from not just the text but the history of the document, the similar phrase in English procedure, and all manner of other sources, “expounding” the Constitution in these myriad ways.

The Second Trump Impeachment

This time, different questions came to the fore: Can a former president be impeached? If impeached by the House while still president, can he be tried and convicted by the Senate after leaving office? Again, the constitutional text was less than clear. Of course, it made a big difference. In the event itself, a negative determination by some on the latter question proved decisive enough to foreclose the supermajority in the Senate required for conviction and a penalty, as a majority of Republicans reverted to this explanation for voting for acquittal amid some conduct even they condemned. Were they right? How were we to know?

It must be said that the debate over the issue, proceeding on the terms it did, with scholars and legislators weighing in from all sides with what their “expounding” told them about our Constitution, was one of the unspoken marvels of the whole process. The marvel itself was easily unnoticed amid the hurly-burly of the partisan battles. Each figure had a take, to be sure. But the one thing everyone seemed to agree upon was that we needed to know what the Constitution was intended to do and that it needed to be expounded in this way. It has not always been so. Amid the Supreme Court jurisprudence of the second half of the 20th century, there was a certain flirtation with the idea that the founders’ intent or the “original meaning” of the constitutional text was of no, or at least very little, moment. With the maturing of the American republic and the changing material circumstances, it was said, a “living Constitution” was what was wanted for solving contemporary dilemmas, regardless of “original intent.” The Constitution needed updating, as it were, not through the amendment process, in all its cumbersome glory, but through a rethinking of what we wanted from our Constitution on the basis of a more modern and presumably better-informed understanding of politics and society.

Fie!, said those at the other extreme. These were the so-called “originalists,” who insisted on hewing closely and exclusively to the constitutional text itself. The words of the document were said to be authoritative and binding and had to be applied precisely. Perhaps unwittingly, this approach eventually came to agree with the living Constitution theorists in rejecting the founders’ original intent, which was deemed irrelevant at best and delusional at worst, the founders’ purposes being an unnecessary diversion from the words and beyond our ken anyway. The text is what mattered. Each side proceeded to heap scorn on the other, the originalists pointing out that a “living Constitution” is a kind of oxymoron in which the words of the Constitution we originally adopted have little or no fixed meaning, only to be countered with repeated showings that a cramped textual analysis was no analysis at all, not an “expounding” certainly, and occasionally downright useless altogether.

Actual constitutional crises tend to have a sobering effect amid such theoretical brouhahas. In the Trump case, all parties quickly got down to the very serious and practical business of figuring out what the Constitution originally meant and what it was intended by the founders to do. The “living Constitution” analysis was summarily abandoned during this process, except by die-hard anti-Trumpers who sought impeachment at any price, regardless of original intentions and the constitutional text. Strict textual interpretation proved more durable but no less unsatisfactory. The words of the Constitution were just unequal to the task at hand. Thus, it was argued by some that the words directly permitted impeachment, or at least conviction, after a president departed from office, noting that the remedies included disqualification from office. But, of course, the phrase is “removal and disqualification,” the conjunctive suggesting that one needed to be attached to the other. No wait, others said, every president who is impeached and convicted is ipso facto removed from office, so disqualification always is of a president no longer in office. Word play, others responded.

And on it went. The Senate is to try all impeachments, some scholars pointed out, which means that if the impeachment is proper (the president is still in office at the time of impeachment), a trial is permissible, even if he leaves before trial. But the language is that the Senate has the “sole power” to try impeachments, not that it is necessarily proper to exercise that power if the president is already long gone. The chief justice does not sit if a president is not involved, leading some to conclude that there are permissible cases where the president is no longer in office. Why else would it provide for a situation where the chief justice would not preside? But this is either a non sequitur or a tautology. That the chief justice doesn’t sit where an impeachment involves someone other than the president does not mean that a non-sitting president can be impeached. And so on and so forth.

In the end, even once all such textual gymnastics were taken into consideration, originalism as pure textual application proved to be a blind alley. On the one hand, everyone, or at least most, seemed to agree that the functioning of the Constitution depended necessarily on knowing what it means. The text by itself did not offer us the necessary tools to learn what we needed to know. Should this surprise us? Chief Justice Marshall, while plainly holding fast to the text of the Constitution, went on in McCulloch to condemn constitutional decision-making that relied solely on reading words in the Constitution too literally and outside of its and their larger context, as if they were a law. He refused to limit himself solely to the apparent meaning of the plain terms of the Necessary and Proper Clause. What this should tell us is that an approach that restricts itself to the words of the Constitution is not, from Marshall’s point of view anyway, the right way to go, a lesson the second Trump impeachment seemed to fortify. How, then, do we expound the Constitution in the end?

How Do We Expound the Constitution?

We seem to be back to square one, without resource for solving a critical question, maybe the critical question, arising under our sacred foundational document. In a case in which the constitutional text does not yield its secrets easily, do we just leave it to power politics in the end? No rules in a knife fight—or, less colorfully, does the then-current majority view simply win on a “living Constitution” theory, originalism, or otherwise? Note that the managers of the impeachment articles argued that the Senate had once had a trial of a cabinet officer who was impeached but resigned before he could be tried. All viewed this as valuable precedent, surely. But did we know the circumstances of that undertaking sufficiently to be sure that the majority had not just done what the majority wanted to do, regardless the constitutional meaning? Or more simply, was the Senate right then to have done what it did and should it do the same, or make the same mistake, twice?

What is to be done? Maybe start over, giving Marshall’s pithy reminder more considered attention. All agree, with Marshall, that we are working with a constitution. As the small c in his phrase shows, this title, which the drafters themselves applied to their document, is a generic one, of which our sacred instrument is merely a species. As Marshall is perhaps emphasizing, the framers were referring not just to the somewhat dissimilar model of the British constitution, but to a classical philosophical notion of long and good pedigree. The title of Plato’s Republic is “Politeia,” which more accurately means a “regime” or “constitution,” the political arrangement of a city. For the Greeks, the term extended beyond the mere structure of government, to all aspects of daily life. The regime was the city for both public and private alike. In Plato’s presentation, each city’s life, public or private, was dominated by a certain goal or objective, which set the fundamental character of the regime.

More modern thinkers divide matters more sharply between public and private, a constitution applying most directly to the former, while perhaps reflecting or influencing attitudes toward the latter. Like the ancients, they still focus on its aims or purposes. It provides the architecture of our government, or arrangement of powers, rather than a substantive code or law. It is a political structure, based on a scientific construct, designed to meet our most fundamental objectives. What are those? Those for our Constitution are not encapsulated in a single document, but the answer is still available to us. According to the Declaration of Independence, the goal of any form of government is to secure our natural rights, or, as in the Constitution’s own preamble, it is to create “a more perfect union” by such things as “securing the blessings of liberty” to ourselves and our posterity. In both formulations, any constitution, including our Constitution, comprises the governmental procedures—what in the founders’ lexicon are called “powers,” as in “just powers from the consent of the governed”—that will be used to accomplish these ends.

A modern constitution ensures that, while being governed, people can, consistent with their natural rights, freely pursue their lives and wants in reasonable comfort and security. All interpretations of the Constitution, at least insofar as the founders’ intent is concerned, and apparently in Marshall’s understanding as well, begin with this analysis. What does this tell us about impeachment? A similar kind of analysis, operating from goals or purposes backward, is as pertinent to a consideration of the internal arrangement of powers as to the structure of government more generally. What is the aim or purpose of the articles concerning impeachment within the larger whole and its objectives?

The Impeachment Articles

The impeachment articles are a part of the separation of powers, which serves several different goals. First, it is an allocation of roles and responsibilities, with an eye toward efficiency, allowing governmental powers to be distributed in a way so as to maximize the smooth functioning of government. Second, and more important, it serves the purposes of liberty, allowing for different forms of representation, while dispersing governmental power across multiple agencies, each of which provides a form of rule but none of which is too powerful for the good of the people. Third, it provides checks and balances, allowing each department to counter any attempted accumulation of excessive power or aggrandizement of itself at the expense of the others. As summed up in Federalist No. 51, “[y]ou must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Considering a constitution by and through its purposes has already taken us into “expounding” the Constitution, even if not yet very far along that plane. Much more needs to be investigated once the purposes are known. How does impeachment serve these purposes? To answer this question, one would, as originalism itself requires (but with a more historical ear), go next to the word itself—“impeachment.” This is a kind of indictment, a summary of charges but of an unusual kind, as the special word implies. It results in “removal” or “disqualification from office,” and nothing else. Why? Clearly, the founders had a specific model in mind.

This should next lead to a careful investigation of what was meant by that term at the time, in all of its historical significance, and then to why such a device was deemed necessary at all. Relevant sources for the former would be how and why the British, who used such a concept in their “constitution,” employed the process and what the founders in their analysis and somewhat different structure viewed as useful. For the latter, one might also consider what the founders’ intellectual forebears said about related means and devices, which can be found in the writings of such luminaries as Hobbes, Locke, Montesquieu, and Blackstone.

It also would include what the founders themselves said at the time, including what may be found in the notes that Madison and others took at the Federal Convention of 1787 when they adopted the concept, as well as what appears in other contemporary writings like The Federalist. For example, the convention apparently rejected impeachment for “mal-administration,” which, they said, would be cured by the electoral process. This might suggest that impeachment becomes a remedy wherever elections do not adequately protect us. But one must take care not to place too much emphasis on this one datum above all others. Rather, a full intellectual, political, and historical inquiry is necessary. Expounding a constitution, our Constitution—considering the purposes of the document and its relevant provisions in the full legal, historical, and political context, and applying it to the specific facts of the “instant” case—is never a simple process.

Why would we expect it to be otherwise? The founders, who were certainly not without their warts, were sophisticated political thinkers, which is, after all, why their intentions matter in the first place. While we find it frustrating that the document sometimes seems opaque, we can still benefit from undertaking the analysis, gaining from its very difficulty greater clarity and assurance that we are applying the Constitution as was intended, and not merely indulging in the political or legal preferences of the day. Such an attitude does not seem completely in tune with the tenor of the times. Under current norms, we, or at least our representatives, not to mention the Supreme Court itself, seem not to have the will or the patience to undertake the required exercise. The living constitutionalists want not to be bothered by any kind of consideration of the founders’ highly developed understanding, while the originalists deny it is possible to reconstruct it.

More generally, in the contemporary world, science has taught us all to look for definitive answers, often in the shape of a formula or proof that will resolve problems once and for all, not further education and rumination about our governmental structure and its many provisions. But the very breadth of the undertaking, perhaps forgoing certainty in favor of a greater richness of meaning and a better understanding of the complexities of our governing document, not to mention governing itself, will give to the document, and ourselves, the respect owing to a self-governing people and its principles. In this respect too, we must never forget it is our Constitution we are expounding.

Indeed, it was one of the most striking elements of the second impeachment proceeding against former president Donald Trump that it showed how what might be called “expounding the Constitution” can be, and is, an urgent necessity. During that process, arguments flew hither and thither regarding what the Constitution means and what the founding fathers intended in the case of the several provisions relating to impeachment of a president, without much of a resolution. Public officials called upon to address the weighty responsibilities of constitutional decision-making and pundits weighing in on the nightly news shows or streaming their commentaries all found themselves expounding upon the Constitution in a knowing but often unpersuasive way. The public looked on, with perhaps a little less ideological fervor, wondering what it is our system allowed or prohibited. The process hardly seemed satisfactory and failed to produce any consensus or certainty.

Nor was this the first such occasion, even for contemporary times. During the Nixon impeachment proceedings, and those for former president Clinton, and even the first Trump impeachment, the phrase “high crimes and misdemeanors” captured the attention of the cognoscenti and an interested public alike. “Expounding the Constitution” in those cases led easily to the conclusion that “misdemeanors” was not intended to be, well, misdemeanors. Instead, the word had to be taken in context, within the technical phrase “high crimes and misdemeanors.” But what were those? The commentators, then as now, tried to outdo each other in explaining what the founders had in mind, offering evidence from not just the text but the history of the document, the similar phrase in English procedure, and all manner of other sources, “expounding” the Constitution in these myriad ways.

The Second Trump Impeachment

This time, different questions came to the fore: Can a former president be impeached? If impeached by the House while still president, can he be tried and convicted by the Senate after leaving office? Again, the constitutional text was less than clear. Of course, it made a big difference. In the event itself, a negative determination by some on the latter question proved decisive enough to foreclose the supermajority in the Senate required for conviction and a penalty, as a majority of Republicans reverted to this explanation for voting for acquittal amid some conduct even they condemned. Were they right? How were we to know?

It must be said that the debate over the issue, proceeding on the terms it did, with scholars and legislators weighing in from all sides with what their “expounding” told them about our Constitution, was one of the unspoken marvels of the whole process. The marvel itself was easily unnoticed amid the hurly-burly of the partisan battles. Each figure had a take, to be sure. But the one thing everyone seemed to agree upon was that we needed to know what the Constitution was intended to do and that it needed to be expounded in this way. It has not always been so. Amid the Supreme Court jurisprudence of the second half of the 20th century, there was a certain flirtation with the idea that the founders’ intent or the “original meaning” of the constitutional text was of no, or at least very little, moment. With the maturing of the American republic and the changing material circumstances, it was said, a “living Constitution” was what was wanted for solving contemporary dilemmas, regardless of “original intent.” The Constitution needed updating, as it were, not through the amendment process, in all its cumbersome glory, but through a rethinking of what we wanted from our Constitution on the basis of a more modern and presumably better-informed understanding of politics and society.

Fie!, said those at the other extreme. These were the so-called “originalists,” who insisted on hewing closely and exclusively to the constitutional text itself. The words of the document were said to be authoritative and binding and had to be applied precisely. Perhaps unwittingly, this approach eventually came to agree with the living Constitution theorists in rejecting the founders’ original intent, which was deemed irrelevant at best and delusional at worst, the founders’ purposes being an unnecessary diversion from the words and beyond our ken anyway. The text is what mattered. Each side proceeded to heap scorn on the other, the originalists pointing out that a “living Constitution” is a kind of oxymoron in which the words of the Constitution we originally adopted have little or no fixed meaning, only to be countered with repeated showings that a cramped textual analysis was no analysis at all, not an “expounding” certainly, and occasionally downright useless altogether.

Actual constitutional crises tend to have a sobering effect amid such theoretical brouhahas. In the Trump case, all parties quickly got down to the very serious and practical business of figuring out what the Constitution originally meant and what it was intended by the founders to do. The “living Constitution” analysis was summarily abandoned during this process, except by die-hard anti-Trumpers who sought impeachment at any price, regardless of original intentions and the constitutional text. Strict textual interpretation proved more durable but no less unsatisfactory. The words of the Constitution were just unequal to the task at hand. Thus, it was argued by some that the words directly permitted impeachment, or at least conviction, after a president departed from office, noting that the remedies included disqualification from office. But, of course, the phrase is “removal and disqualification,” the conjunctive suggesting that one needed to be attached to the other. No wait, others said, every president who is impeached and convicted is ipso facto removed from office, so disqualification always is of a president no longer in office. Word play, others responded.

And on it went. The Senate is to try all impeachments, some scholars pointed out, which means that if the impeachment is proper (the president is still in office at the time of impeachment), a trial is permissible, even if he leaves before trial. But the language is that the Senate has the “sole power” to try impeachments, not that it is necessarily proper to exercise that power if the president is already long gone. The chief justice does not sit if a president is not involved, leading some to conclude that there are permissible cases where the president is no longer in office. Why else would it provide for a situation where the chief justice would not preside? But this is either a non sequitur or a tautology. That the chief justice doesn’t sit where an impeachment involves someone other than the president does not mean that a non-sitting president can be impeached. And so on and so forth.

In the end, even once all such textual gymnastics were taken into consideration, originalism as pure textual application proved to be a blind alley. On the one hand, everyone, or at least most, seemed to agree that the functioning of the Constitution depended necessarily on knowing what it means. The text by itself did not offer us the necessary tools to learn what we needed to know. Should this surprise us? Chief Justice Marshall, while plainly holding fast to the text of the Constitution, went on in McCulloch to condemn constitutional decision-making that relied solely on reading words in the Constitution too literally and outside of its and their larger context, as if they were a law. He refused to limit himself solely to the apparent meaning of the plain terms of the Necessary and Proper Clause. What this should tell us is that an approach that restricts itself to the words of the Constitution is not, from Marshall’s point of view anyway, the right way to go, a lesson the second Trump impeachment seemed to fortify. How, then, do we expound the Constitution in the end?

How Do We Expound the Constitution?

We seem to be back to square one, without resource for solving a critical question, maybe the critical question, arising under our sacred foundational document. In a case in which the constitutional text does not yield its secrets easily, do we just leave it to power politics in the end? No rules in a knife fight—or, less colorfully, does the then-current majority view simply win on a “living Constitution” theory, originalism, or otherwise? Note that the managers of the impeachment articles argued that the Senate had once had a trial of a cabinet officer who was impeached but resigned before he could be tried. All viewed this as valuable precedent, surely. But did we know the circumstances of that undertaking sufficiently to be sure that the majority had not just done what the majority wanted to do, regardless the constitutional meaning? Or more simply, was the Senate right then to have done what it did and should it do the same, or make the same mistake, twice?

What is to be done? Maybe start over, giving Marshall’s pithy reminder more considered attention. All agree, with Marshall, that we are working with a constitution. As the small c in his phrase shows, this title, which the drafters themselves applied to their document, is a generic one, of which our sacred instrument is merely a species. As Marshall is perhaps emphasizing, the framers were referring not just to the somewhat dissimilar model of the British constitution, but to a classical philosophical notion of long and good pedigree. The title of Plato’s Republic is “Politeia,” which more accurately means a “regime” or “constitution,” the political arrangement of a city. For the Greeks, the term extended beyond the mere structure of government, to all aspects of daily life. The regime was the city for both public and private alike. In Plato’s presentation, each city’s life, public or private, was dominated by a certain goal or objective, which set the fundamental character of the regime.

More modern thinkers divide matters more sharply between public and private, a constitution applying most directly to the former, while perhaps reflecting or influencing attitudes toward the latter. Like the ancients, they still focus on its aims or purposes. It provides the architecture of our government, or arrangement of powers, rather than a substantive code or law. It is a political structure, based on a scientific construct, designed to meet our most fundamental objectives. What are those? Those for our Constitution are not encapsulated in a single document, but the answer is still available to us. According to the Declaration of Independence, the goal of any form of government is to secure our natural rights, or, as in the Constitution’s own preamble, it is to create “a more perfect union” by such things as “securing the blessings of liberty” to ourselves and our posterity. In both formulations, any constitution, including our Constitution, comprises the governmental procedures—what in the founders’ lexicon are called “powers,” as in “just powers from the consent of the governed”—that will be used to accomplish these ends.

A modern constitution ensures that, while being governed, people can, consistent with their natural rights, freely pursue their lives and wants in reasonable comfort and security. All interpretations of the Constitution, at least insofar as the founders’ intent is concerned, and apparently in Marshall’s understanding as well, begin with this analysis. What does this tell us about impeachment? A similar kind of analysis, operating from goals or purposes backward, is as pertinent to a consideration of the internal arrangement of powers as to the structure of government more generally. What is the aim or purpose of the articles concerning impeachment within the larger whole and its objectives?

The Impeachment Articles

The impeachment articles are a part of the separation of powers, which serves several different goals. First, it is an allocation of roles and responsibilities, with an eye toward efficiency, allowing governmental powers to be distributed in a way so as to maximize the smooth functioning of government. Second, and more important, it serves the purposes of liberty, allowing for different forms of representation, while dispersing governmental power across multiple agencies, each of which provides a form of rule but none of which is too powerful for the good of the people. Third, it provides checks and balances, allowing each department to counter any attempted accumulation of excessive power or aggrandizement of itself at the expense of the others. As summed up in Federalist No. 51, “[y]ou must first enable the government to control the governed; and in the next place, oblige it to control itself.”

Considering a constitution by and through its purposes has already taken us into “expounding” the Constitution, even if not yet very far along that plane. Much more needs to be investigated once the purposes are known. How does impeachment serve these purposes? To answer this question, one would, as originalism itself requires (but with a more historical ear), go next to the word itself—“impeachment.” This is a kind of indictment, a summary of charges but of an unusual kind, as the special word implies. It results in “removal” or “disqualification from office,” and nothing else. Why? Clearly, the founders had a specific model in mind.

This should next lead to a careful investigation of what was meant by that term at the time, in all of its historical significance, and then to why such a device was deemed necessary at all. Relevant sources for the former would be how and why the British, who used such a concept in their “constitution,” employed the process and what the founders in their analysis and somewhat different structure viewed as useful. For the latter, one might also consider what the founders’ intellectual forebears said about related means and devices, which can be found in the writings of such luminaries as Hobbes, Locke, Montesquieu, and Blackstone.

It also would include what the founders themselves said at the time, including what may be found in the notes that Madison and others took at the Federal Convention of 1787 when they adopted the concept, as well as what appears in other contemporary writings like The Federalist. For example, the convention apparently rejected impeachment for “mal-administration,” which, they said, would be cured by the electoral process. This might suggest that impeachment becomes a remedy wherever elections do not adequately protect us. But one must take care not to place too much emphasis on this one datum above all others. Rather, a full intellectual, political, and historical inquiry is necessary. Expounding a constitution, our Constitution—considering the purposes of the document and its relevant provisions in the full legal, historical, and political context, and applying it to the specific facts of the “instant” case—is never a simple process.

Why would we expect it to be otherwise? The founders, who were certainly not without their warts, were sophisticated political thinkers, which is, after all, why their intentions matter in the first place. While we find it frustrating that the document sometimes seems opaque, we can still benefit from undertaking the analysis, gaining from its very difficulty greater clarity and assurance that we are applying the Constitution as was intended, and not merely indulging in the political or legal preferences of the day. Such an attitude does not seem completely in tune with the tenor of the times. Under current norms, we, or at least our representatives, not to mention the Supreme Court itself, seem not to have the will or the patience to undertake the required exercise. The living constitutionalists want not to be bothered by any kind of consideration of the founders’ highly developed understanding, while the originalists deny it is possible to reconstruct it.

More generally, in the contemporary world, science has taught us all to look for definitive answers, often in the shape of a formula or proof that will resolve problems once and for all, not further education and rumination about our governmental structure and its many provisions. But the very breadth of the undertaking, perhaps forgoing certainty in favor of a greater richness of meaning and a better understanding of the complexities of our governing document, not to mention governing itself, will give to the document, and ourselves, the respect owing to a self-governing people and its principles. In this respect too, we must never forget it is our Constitution we are expounding.

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