When Nixon opened up relations with China, he hoped it would be a great leap forward. Instead, it has taken the world backward.
Objections to Impeachment: The Protest that “This Hasn’t Been Our Practice,” Part 1
In my last several posts, I have been responding to standard objections often raised in opposition to a broad understanding of the constitutional power of impeachment – objections that one often hears invoked, notwithstanding the fact that the best evidence of the Constitution’s original meaning supports such a broad understanding. One response to such objections is, of course, that if this is the true understanding of the Constitution it does not matter that one might find the Constitution’s empowerment impertinent, inconvenient or impractical. The Constitution’s powers are what they are, and should not be disregarded for mere policy or political reasons.
My prior posts addressed the objections that, if the power of impeachment were given its full constitutional scope, (1) the power might be abused; (2) use of the power would tend too much in the direction of congressional dominance, leading to a quasi-parliamentary “vote of no confidence” on policy grounds; and (3) that impeachment of presidents ought to be disfavored on the ground that it is improper – even un-democratic – to allow such a proceeding to “overturn the result of an election.” As those posts argued, each of these objections makes a serious point. But upon examination, none is persuasive.
That leaves a fourth and final generic category of objections to the original meaning of the power of impeachment: the protest that “this hasn’t been our practice.”
Practice Isn’t Perfect
First, a concession: It is true that the original understanding of the impeachment power confers a broader power upon the two houses of Congress than is conventionally and popularly understood, and broader than has consistently been exercised in practice. Indeed, it is true that a good deal of the nation’s constitutional practice, with respect to impeachment, has fallen short of the framers’ expectations concerning the breadth of wrongs the power properly would embrace. Practice has failed to grasp all that is within the power’s reach.
So much the worse for practice, I say. As a matter of principle, where prior practice or interpretation departs from true constitutional meaning, it is the practice or interpretation that should change, not the Constitution. The fact that “this hasn’t been the practice” really only shows what has or has not been the practice. It does not define the scope of the power the Constitution confers. The meaning of the Constitution is not altered – the power of impeachment is not lost, or waived, or forfeited – by specific instances of failure to exercise it in the past, or even by a sustained pattern of disuse. The judgment as to the situations that properly call for impeachment, within the scope of the Constitution’s broad boundaries, is ultimately for each generation to make for itself.
With that preface, let me examine the various shapes in which the “not our practice” objection tends to present itself.
Does Practice Supersede the Constitution’s Original Meaning?
The most categorical and daring way of putting the point is that practice has established a different meaning from the Constitution’s original sense. And (the argument goes) it is the practice under the Constitution that should control, not the Constitution’s original meaning in the abstract. Note that this argument resembles, but is slightly different from, the claim that some early practice constitutes evidence of the original meaning itself. That is a flawed claim of a different kind, as I argued a few weeks ago. The “prior practice” argument here is that practice actually prevails over original meaning. As such, it is just one of the many forms that the “living constitution” stance – constitutional shape-shifter arguments – can take.
Made in this strong form, the argument from contrary practice is a fairly direct assault on written constitutionalism itself. The claim is that practice and precedent may substitute for – displace, replace – an actual, ascertainable objective baseline meaning of the written constitutional text. Nothing could be more antithetical to the idea of a written Constitution designed to serve as binding, permanent-unless-amended, supreme law adopted by the authoritative act of “We the People of the United States.” One can argue about whether written constitutionalism is a good system of government. But if that is our system, practice in conflict with the written Constitution is, in a word, unconstitutional.
The argument for this conclusion is remarkably straightforward: Under our written constitution,“[t]his Constitution” – and nothing else – is supreme law of the land. The terms of the Constitution prevail over anything in conflict with it. If the Constitution says one thing, and practice (or precedent) says something to the contrary, subsequent interpreters must go with the Constitution every time. They must decline to give effect to prior acts of government in conflict with the actual meaning of the Constitution. That is the essence of the argument for “judicial review” made in Marbury v. Madison and, before that, in Federalist 78. It is an argument premised on the supremacy of the written Constitution over every act of government in conflict with it.
But wait! Isn’t the argument for “stare decisis” – the judicial policy of (sometimes) adhering to precedent just because it is precedent – precisely the claim that precedent and practice changes the meaning of the Constitution?
If so, stare decisis is illegitimate exactly to that extent. The doctrine, if taken to mean that past judicial misinterpretations of the Constitution actually supersede the Constitution, is simply unconstitutional.
The Supreme Court typically does not go that far. The Court has never held that stare decisis is a doctrine required by the Constitution. Rather, it is a matter of judicial policy and usual practice. The Court regularly overrules its prior precedents. Brown v. Board of Education famously and rightly repudiated the “separate but equal” doctrine of Plessy v. Ferguson. There are hundreds more such examples. The practice of generally adhering to precedent never legitimately requires the Court to adhere to prior wrong decisions. (Indeed, it is fair to say that the Supreme Court’s doctrine of stare decisis does not even require adherence to the doctrine of stare decisis.)
Rare indeed – and utterly wrong in principle – is the case where the Court adheres to a precedent even when persuaded the case was wrongly decided. When it does so, that is infamously to the Court’s discredit. The Constitution is the standard for judging precedents, not the other way around.
At any rate, the judicial doctrine of stare decisis has never been thought applicable to Congress’s judgments and discretion in its choices to use – or not to use – one of its constitutional powers, or to use it only to a limited extent. There is no “stare decisis” with respect to Congress’s legislative choices. Social Security is not unconstitutional simply because it had not been enacted by Congress in its first 150 years. “Obamacare” is not unconstitutional simply because it was a new innovation. In each case, the question is whether congressional action falls within the scope of the legislative powers granted by the Constitution, not whether Congress had previously used such a granted power in that specific way.
The core of the idea that practice can establish a different meaning than the Constitution’s true original sense – that practice can overrule the meaning of the document itself – is as wrong as wrong can be.
Does Impeachment Practice “Liquidate” the Constitution’s Meaning?
A softer, somewhat more sophisticated variation of the practice-establishes-meaning argument is that, where the text’s meaning is ambiguous or vague, practice can – in such limited circumstances – “fix” a more definite meaning. To borrow James Madison’s eighteenth century lingo, long-settled, accepted practice can “liquidate” the meaning of an ambiguous provision.
This version of the argument, while more plausible, suffers from multiple problems. First, it is not at all clear that the impeachment standard of “high Crimes and Misdemeanors” is vague or ambiguous in the first place. The impeachment power is not so much “vague” as simply broad. The problem (if it is a problem) is not that the Constitution’s meaning is unclear but rather that its clear meaning is to grant a broad power susceptible to a range of judgment as to its application.
Instances of less-than-sweeping application of the impeachment power thus do not “liquidate” its meaning so much as constitute one instance of the exercise of judgment conferred by that broad meaning. A decision to utilize or not utilize the impeachment power does not alter (or “liquidate”) the meaning of the power itself. It does not tell us anything that specifies or clarifies the Constitution’s meaning, because impeachment practice in its nature cannot narrow the impeachment power.
Second, for practice to clarify alleged ambiguity and thereby settle constitutional meaning there would need to be a long, consistent, deliberate practice, widely accepted and acquiesced in by essentially all concerned. This was Madison’s understanding of “liquidation,” and it has very limited application.
With respect to impeachment, practice has been all over the place. It establishes nothing very clear, settles little if anything, and “liquidates” practically nothing at all. Impeachment proceedings have been few, episodic, idiosyncratic, irregular, and produced no clear bright-line “adjudications” producing hard-and-fast, settled rules. Contradictory (and unclear) congressional “precedents” can be lined up on opposing sides of many impeachment issues.
This is particularly true of the question of what all is included within the breadth of the term “high Crimes and Misdemeanors.” On the one hand: multiple officials have been impeached, removed, or forced to resign for making false sworn statements, lying to federal investigators, falsifying disclosure forms or tax statements, official inquiries, obstruction of justice in attempting to cover up other prior wrongdoing, and public dishonesty. Some such instances of misconduct occurred in connection with performance of official duties; some were essentially unrelated to official duties. (The cases of President Richard Nixon, Judge Halstead Ritter, Judge Harry Claiborne, Judge Walter Nixon, Judge Alcee Hastings, and Judge Thomas Porteous, Jr. all fit this description.) On the other hand, there have been some episodes where similar alleged misconduct was not held sufficient to convict the impeached official. (President Bill Clinton and Judge Charles Swayne are examples.)
Likewise, there have been instances where presidents were successfully ousted in part for misuse or abuse of power (Nixon) and instances where the vote came up just short for conviction on somewhat similar grounds. (Johnson). There have been instances where judges were removed for misuse of judicial power (Judge West Humphreys), instances where such charges failed to convince a two-thirds majority of the Senate (Justice Samuel Chase, Judge James Peck), and instances where it is unclear whether this was the agreed ground on which an impeached judge had been convicted (Judge John Pickering). There have been instances where an official’s predatory sexual behavior, exploitation, harassment, or assault – and of dishonest conduct in attempting to cover it up –led to impeachment and/or forced resignation (Judge Samuel Kent in 2009 is a prominent, atrocious example.) And there are “precedents” that appear to run in the other direction. (Bill Clinton’s acquittal is probably a fair illustration of this.)
The closest that history comes to a sustained, consistent practice based on a considered and deliberate judgment is the Senate’s 1799 determination that the category of “civil officers” subject to impeachment likely does not include senators and representatives, and even that is not the clear “holding” of the case. (Senator William Blount had already been expelled by the Senate, left town, was subsequently “impeached” by the House, but further proceedings were “dismissed” in the Senate.) No attempt has ever again been made to impeach a member of Congress.
The next closest consistent practice is the even-less-clear series of practical judgments – sometimes vigorously contested, never clearly “adjudicated,” and quite possibly wrong – not to proceed with impeachment of (or not to convict) an official who has already resigned. (Blount is again an early precedent; resigned Secretary of War William Belknap probably escaped Senate conviction on this ground in 1876; and numerous federal judges have resigned and thereby averted impeachment proceedings. And then of course there is Richard Nixon, who resigned the presidency rather than face impeachment.) Resignation, if it truly extinguishes the impeachment power, thwarts the imposition of the possible further punishment of disqualification from holding future federal office – a questionable position, at least. But the practice has been that if the official is gone, so is the impeachment power – or at least the will to use it.
Aside from these last two illustrations, it is extraordinarily hard to conclude that there is a settled, liquidated understanding of the impeachment power based on practice. The better conclusion is quite the opposite: given such varying and inconsistent practice, almost nothing can be said to be clearly and unambiguously established by practice. Past impeachments and non-impeachments present endlessly fascinating historical case studies. But in the end they do not tell us very much. They “liquidate” nothing, so far as the meaning of the Constitution’s broad impeachment standard is concerned.
Finally, as noted in an earlier post, it is often unclear what should count as Congress’s “interpretation” of the scope of the impeachment power, in any given instance. Is it the impeachment vote in the House? The vote to convict (or acquit) in the Senate? Shouldn’t convictions, which necessarily decide the question of impeachability, count more than acquittals, which could rest on any of a number of grounds? Does an impeachment effort that led to an official’s resignation count? (Is President Nixon’s resignation a “precedent” or not?) What weight should be accorded a judgment by a majority of the Senate supporting impeachability, but a vote to convict falling short of the two-thirds majority required? (Which way should the impeachment but narrow acquittals of Andrew Johnson and Samuel Chase really cut?)
It is often unclear whether any “authoritative” interpretation has in fact been made by anyone. It is often unclear whether an outcome was premised on a point of constitutional law concerning the scope of the impeachment power, on the particular facts alleged, or on some mixture of both. And it is often unclear whether a particular outcome was based, deservedly or not, on raw political considerations.
Impeachment practice thus tells us almost nothing – and nothing at all clear or authoritative – that would “settle” the Constitution’s meaning in a fashion limiting or narrowing what one would otherwise conclude is the proper scope of the impeachment power.
Political Parties, Popular Perceptions
There are two further variations on the “this-hasn’t-been-our-practice” objection. One is a “high-brow” political-science-y objection that the (supposedly unanticipated) development of an enduring two-party system, and resulting partisan loyalties, somehow has worked a permanent “amendment” limiting the impeachment power to criminal wrongdoing. The other is a more “low-brow” (but still political-science-y) objection that the common public understanding of “high Crimes and Misdemeanors” is narrower than the Constitution’s original meaning – that the general public believes impeachable offenses are limited to serious criminal-law wrongs – and that such a public (mis-) understanding should trump the Constitution’s original meaning. I will briefly address these two arguments tomorrow.