Eight years on, the Supreme Court's revival of the president's removal power in Free Enterprise Fund v. PCAOB offers important lessons for originalism.
Last week, I began what I expect to be a series of posts on the constitutional power of impeachment. What is the proper understanding of the Constitution’s standard for impeachment of federal executive and judicial officers – “Treason, Bribery, or other high Crimes and Misdemeanors”?
The first step in answering this question is to set forth a principled method of constitutional interpretation (or at least to make clear the principles under which I propose to be operating). Only then can one hope to be principled in applying the Constitution consistently, rather than in a low-political, result-oriented, made-for-the-occasion, manipulative, partisan fashion. (I invite readers to test my consistency on this score: In my next post, I will set forth what I have said about the Constitution’s standards for impeachment – made over the course of more than thirty years of academic writing on this topic specifically and on other topics.)
Original Public Meaning, Not Intent
My methodology is one that is best described as original public meaning textualism: What is the objective meaning that the words and phrases of the document would have had to reasonable, and reasonably informed, speakers and readers of the English language, at the time of their adoption as part of the Constitution? I have described this methodology (which is not at all unique to me) at great length in other places. (Consider the articles here, here, and here, if interested.)
Briefly stated, the methodology is one that focuses on the (theoretical) objective meaning of the words of an authoritative written text. It is not the subjective “intentions,” or “understanding,” or “expectations” of any of the text’s (collective) authors or adopters that is itself authoritative – though such information might well supply valuable relevant evidence of the meaning of the words of the text. The search is for the meaning of the words and phrases that the framers and ratifiers of the Constitution wrote, and adopted, as part of the Constitution. That meaning is (theoretically) the objective meaning of the language thus written. Put colloquially: It is not what the framers “had in mind” that counts, in the end. It is what they wrote down in words. The two things are often related, but they are distinct.
The methodology focuses on the original meaning of the words and phrases. This is essential to guard against creeping (or lurching) linguistic anachronism or, even worse, pure subjectivity. The Constitution’s provisions were adopted at particular points in time and reflected the meanings the words of those provisions had at that time and in that social and political context. To treat those words as legally authoritative means to accord them the meaning (or range of meaning) they had at the time they were adopted as authoritative. That is part and parcel of written constitutionalism generally. Giving the Constitution its original meaning as an authoritative written text also requires that the words and phrases of the Constitution be understood in accordance with any backdrop understandings that would have come with such terms, at the time and in the social and political context in which they were adopted. If a word or phrase functioned as a specific legal or political term of art, and was known to function as such, then its legal meaning is the one that corresponds to that term-of-art meaning at the time, which is not necessarily its modern “literal” meaning.
For example, if “during good Behaviour” was, at the time of its inclusion in Article III of the Constitution (describing the term of office for federal judges), understood as a specific term-of-art meaning “indefinitely” or “for life” or “not limited by a fixed term of duration,” that is what the phrase continues to mean, irrespective of natural, literal, or modern understandings of the meanings of the words “good” and “behavior.” To read the term in its modern literal sense is to engage in historical and linguistic anachronism.
Likewise, the term “domestic violence,” as used in the Constitution (to describe the situations when the national government might be requested, and thereby empowered, to come to the aid of a state government and employ the force of the community) does not correspond to today’s common understanding of the term “domestic violence”: Article IV of the Constitution does not authorize the federal government to intervene, at the request of a state government, in family domestic violence situations within the requesting state. To read it literally is, again, to engage in anachronism.
Correct constitutional interpretation requires that we attend to the original social, linguistic, and political context of the law. To read the Constitution properly is to read its language in its original sense, which does not necessarily correspond to its modern sense. Drifting linguistic understandings do not alter the meaning of the Constitution as a document written and adopted at a specific time.
High Crimes and Misdemeanors
Thus, as applied to the constitutional power of impeachment, if the phrase “high Crimes and Misdemeanors” was, at the time of the Constitution’s adoption, a term of art with a specific historical meaning (whether a broad or narrow one), that meaning is the one that should govern. The objective meaning of constitutional terms is fixed by the original meaning of those terms – with allowances for backdrop understandings and specialized usages of terms of art. The meaning of constitutional terms does not “evolve” (or “devolve”) with changed linguistic usages over time.
This is vitally relevant, I submit, to a correct understanding of the constitutional power of impeachment. And it addresses a major problem that exists with respect to public (mis-)understanding of the power today. Readers of the Constitution today can be misled badly by the general modern sense of the words “Crimes” and “Misdemeanors,” which might lead some to embrace anachronistic readings of the impeachment standard as limited to literal criminal-law offenses: felonies and misdemeanors. Under this reading method, the reader has to figure out to do with the word “high” as a supposed modifier and qualifier of the words “Crimes” and “Misdemeanors,” rather than as part of a composite term-of-art. The effort usually involves imputing some modern meaning to the word “high.”
But the word “crime” had a broader, more general sense at the time the Constitution was written than it does today, frequently being used to describe any serious wrongful act, whether technically illegal or not. Often the term was used in a strictly moral sense. Similarly, the word “misdemeanor,” in eighteenth-century American English, was not limited to the meaning of a criminal-law offense with a lesser degree of seriousness or punishable by less than a year of imprisonment. Instead, “misdemeanor” bore a broader meaning closer to “misbehaving” or “misdemeaning” – as in the sense of a person not demeaning himself or herself properly.
The Lure of Anachronism
To read the words “crimes” and “misdemeanors,” wrenched from their contemporaneous contexts, in their modern literal sense is thus to indulge in gross anachronism. Moreover, as we shall see, the combination term “high Crimes and Misdemeanors” had acquired a well-understood, term-of-art meaning, derived from longstanding English practice, that went considerably beyond today’s understanding of either “crimes” or “misdemeanors” and embraced a broad variety of “political” offenses against the society generally or the system of government.
A sound textual interpretive methodology will also consider the constitutional text and structure as a whole – the logic of the structural design, inferences from that structure, and the interrelationships among various pieces of constitutional text. Sometimes denominated as “structural” constitutional interpretation, this is perhaps more simply understood as a straightforward method of interpreting the text. It merely recognizes that the text of the Constitution consists of more than just provisions in isolation but of the text as a whole. (For a more extended discussion, see the short on-line article on constitutional interpretive method linked here.)
A final question of constitutional interpretive methodology is what to do where the meaning of a text is “indeterminate” (or, to get really jargonistic, “under-determinate”), vague, ambiguous, or uncertain in meaning. This is the question of what are the proper “default rules” (so to speak) for application of the Constitution when “meaning runs out.”
Though the answer to this question is certainly contestable, I submit that the answer suggested by our constitutional structure of republican, representative government is, as a general rule, that where the Constitution fails to supply a determinate answer, representative institutions of government have considerable freedom to adopt choices, make decisions, and formulate policies, on behalf of the people they represent, as long as such choices, decisions, and policies fall within the range of meaning afforded by an open-ended, indeterminate, or indefinite text. (I have defended this principle in other academic writing as well. Consider the academic articles linked here and here, and the more popular piece here.)
An Open-Ended Power
This general interpretive rule has special salience with respect to the power of impeachment. The Constitution’s broad impeachment standard is, by conscious design (and by virtue of incorporation of a broad historical term), open-ended. It is a general standard, unspecific as to what all it might fairly be thought to include. To that extent, the very breadth and indeterminacy of the standard has the effect of delegating a substantial range of judgment to the representative decision-makers to whom the power is entrusted – the House of Representatives (in making the decision whether to initiate an impeachment) and two-thirds of the Senate (in deciding whether or not to convict and remove the impeached official on the offense charge).
This is consistent with the Constitution’s design, with the fact of that design having been patterned after the English parliamentary example, and with the Constitution’s specific textual assignments of “sole” power to impeach to the House and of “sole” power to try impeachments to the Senate. In fact, with respect to impeachment, the inference that the judgment as to whether the impeachment standard of “high Crimes and Misdemeanors” has been satisfied, is broadly committed to the discretion of representative bodies, seems far more than merely a “default rule” of what to do when the Constitution is unspecific. It seems more in the nature of an assignment to the respective representative institutions of Congress of the power to interpret and apply faithfully the Constitution’s grant of the impeachment power. The Supreme Court has essentially said as much, in its most important case interpreting the impeachment power – and concluding that most questions of interpretation and application of that power are committed to Congress’s determination, not judicial decision. The case is Nixon v. United States, decided in 1993. I will have more to say about it in a later post.
Why a Common Framework Matters
It is possible to have different interpretive premises for constitutional interpretation. Many legal academics and judges do, of course. But these are the ones from which my argument concerning the meaning and sweep of the constitutional power of impeachment proceed. I believe – I am fully persuaded (with all due humility and respect to the differing views of others) – that these are the correct principles of constitutional interpretation. (If I didn’t believe this, or were not fully persuaded, these premises wouldn’t serve as my starting point for constitutional analysis of impeachment!)
And so I am tempted to do no more in defense of them than leave it at that, and to proceed with the argument.
But I offer just two more observations by way of justification and explanation. First, for many (if not most) political and legal “conservatives” and “libertarians” – who form part of the audience for this series of essays – these are agreed premises, with perhaps minor variations and quibbles over emphasis. I hope to persuade this audience that their accepted premises of constitutional interpretation should lead them to a conclusion along the lines of my own: that the constitutional power of impeachment is quite broad; that it has been historically underutilized; that it is not limited to criminal-law offenses; and that it legitimately embraces a broad range of executive and judicial misconduct.
Some of those (correct) constitutional conclusions may be disconcerting to some defenders of some of the conduct of the incumbent president. For such persons, I do indeed mean to shift the ground under their feet by forcing them to confront the dissonance between their views of the Constitution and their defense of the current president. Unless the original understanding of the Constitution is not controlling; or unless contrary historical practice can indeed somehow “alter” the meaning of the Constitution – premises most conservatives and libertarians reject in general as appropriate in constitutional interpretation – the constitutional power of impeachment indeed should be understood and applied as a formidable check on what Congress judges to be serious abuses or misuses of executive or judicial power. (For a general sketch of this argument, see the first post in this series.)
Second, for those who do not accept original-objective-public-meaning, whole-text-in-context textualism as the single “correct” approach to constitutional interpretation, many nonetheless consider such an approach at least highly relevant to their ultimate constitutional conclusions. For some, the original meaning is regarded as at least strong presumptive evidence of current meaning, to be overcome only by overwhelming contrary constitutional arguments (of different kinds). For some, the original meaning is at least informative, or provides a push in a certain direction.
For those readers, I appeal to whatever force original meaning possesses within your schema of constitutional interpretation. We can disagree over the propriety of whatever else you use to “corrupt” (in my view) the purity of constitutional interpretation – precedent, practice, policy preferences, pure politics, or some other extra-constitutional projection of your individual will onto the constitutional text. But for these purposes, let’s focus on the areas of interpretive agreement (or at least overlap): to whatever extent original-public-meaning constrains or directs constitutional interpretation, it supports a broad understanding of the impeachment power.
This might produce welcome results, as to current political circumstances and personalities, for those who dislike both original-meaning textualism as an interpretive methodology and the current incumbent, as a president. (The two do not always exist as an interlocked combination of views; but, alas, they frequently do.) I would encourage such readers not to be opportunistic, however, but to seek principled and consistent applications of the Constitution (however interpreted), and not just politically desired outcomes. An added benefit may be that, to the extent they do adopt and apply principled standards, such left-leaning persons may find more conservative and libertarian allies in support of a broad impeachment power than they expect.
Alas, some left-leaners might have to reconsider views expressed at the time of Bill Clinton’s impeachment, of course. But repentance is good for the soul, in constitutional as well as other matters.
Do I have any such repenting to do, or have I (generally) applied an impeachment standard consistently over time (accounting, without undue generosity, for occasional sloppiness or imprecision of expression, in passing remarks)? In order to immunize myself against the charge of inconsistency, or hypocrisy, my next post will undertake a quick survey of what I can remember writing about impeachment, in other work, during the past thirty years.