The arbitrariness of Cass Sunstein's approach to constitutional interpretation weakens his critique of originalism.
This post continues the discussion from yesterday, addressing various forms of the argument that the original meaning of the impeachment power ought to be deemed superseded or qualified by the actual practice of impeachment – the fact that impeachment practice has not consistently extended as far as the original meaning of “high Crimes and Misdemeanors” would permit.
Yesterday I refuted the extreme argument that precedent alone can actually displace original constitutional meaning. I also addressed the (more responsible) argument that consistent, long-standing, and widely-accepted practice sometimes can settle the meaning of an ambiguous or vague constitutional provision – a fair point in principle, but one I argued does not apply to the impeachment power, which is not so much vague as simply broad and where “practice” has not been consistent and settled very little if anything.
I left off with two remaining variations of the “this isn’t our practice” objection – first, that the Framers did not anticipate political parties and that this changed circumstance changes the scope of the impeachment power; and second, that today’s popular understanding does not conform to the original, objective meaning of the Constitution’s impeachment power – and that popular understanding should control, rather than original meaning.
Does the Rise of the Two-Party System Amend the Impeachment Power?
First, consider the “political science” variation of the argument from practice. The claim, advanced by some academics, is that the (ostensibly) unanticipated development of political parties and emergence of an enduring two-party system – and, crucially, the resulting practical political realities of entrenched partisanship – necessarily alters the proper understanding of the scope of the constitutional power of impeachment. In practice, the rise of partisanship has created a new constitutional order in which presidents can only be impeached and convicted for commission of serious criminal-law offenses. On this view, new political developments constitute a kind of “informal amendment” of the Constitution.
With all due respect, this argument is flawed in both its factual premise and in its legal logic. As a matter of fact, the Framers fully anticipated the existence of “party” interests and partisan loyalties in connection with presidential impeachments. The problem of partisanship was neither a surprise nor a new development. And as a matter of law, the Constitution’s meaning does not change with changes in political practices. Unwritten “amendments” are creatures of the black lagoon conjured by academics, not contemplated by the Constitution.
First, while a specific, enduring two-party political dynamic might not have been within the specific contemplation of the framing generation, it simply is not the case that the framers did not anticipate that impeachments, and especially presidential impeachments, might divide the public along lines of “party.” Quite the contrary: Hamilton was reasonably explicit on this point in Federalist 65, writing that impeachments are likely to “agitate the passions of the whole community,” “divide it into parties” connected with “pre-existing factions,” and “enlist all their animosities, partialities, influence and interest on one side or the other” with the result that there would be the “greatest danger” that decisions would be based on “the comparative strength of parties” more than “real demonstrations of innocence or guilt.”
That’s parties – with or without a regular, formalized two-party system.
Hamilton was worried that partisan loyalties would infect presidential impeachment judgments – a prescient observation, to be sure. But that prediction did not alter his description of the scope of the constitutional power of impeachment, which unambiguously embraced offenses of a “POLITICAL” character. The idea that we should regard the impeachment power as somehow different from what the framing generation devised and understood – because they supposedly did not contemplate the rise of partisanship, faction, interest, and “party” loyalties – is simply wrong in its opening step.
Second, the notion is also badly flawed as a matter of proper legal analysis. So what if they Framers didn’t anticipate the rise of regular political parties? How would that in any way affect the meaning of the Constitution they wrote? There are lots of new developments – in politics, in society, in technology – that the framing generation did not specifically anticipate. That does not mean the Constitution is thereby superseded or its meaning eviscerated.
The Constitution applies to new situations, new technologies, and new developments according to its old terms. To take a straightforward example: The First Amendment means today what it has always meant. It protects the freedoms of “speech” and of “the press.” There might be new technologies and new applications that fit into old categories – new situations that present questions as to how the existing legal rule applies. “Press,” for example, properly embraces all forms of written or published communications, whatever the technology; the on-line digital communication you are reading employs a new technology of printing press. But the meaning of the First Amendment has not thereby changed. The items that might come within the ambit of its terms have changed.
The First Amendment is not repealed or amended by the advent of new technologies or new situations, anticipated or not. How a rule supplied by the Constitution applies to new situations and new technologies is always an interesting question. Whether a new instance fits within an old category is a question of the scope of the meaning of the old category. But the new situation or technology does not itself change the Constitution’s rules. The Constitution’s meaning is unchanged by the advent of new technologies or new situations or new social conditions or new political developments.
Political parties might be thought of as a kind of “new technology” in politics, unforeseen (or incompletely foreseen) by the Framers. This new political technology does not repeal, rescind, or amend the impeachment power, any more than the Internet repeals, rescinds, or amends the First Amendment. (And besides, as noted, party politics and partisan interest, and its impact on impeachment, really isn’t a new development at all. There is nothing new under the sun, least of all partisanship in politics.)
In the end, the claim that the rise of political parties should change the Constitution’s meaning is simply another form of objection to written constitutionalism – an attack on the idea that we are governed by the rules and principles of a written legal instrument today even though circumstances may have changed.
What About Popular Misunderstanding?
A final variation of the “this-hasn’t-been-our-practice” objection is that the original meaning of the Constitution with respect to impeachment does not comport with present popular understanding of the scope of that power. Practice has shaped popular understanding (the argument goes) and the voice of the people is the voice of God, including in constitutional interpretation. If people today think the constitutional power of impeachment is more limited than its original meaning, that popular understanding should control subsequent interpretation. Folks today hear “crimes” in the phrase “high Crimes and Misdemeanors” and think, reflexively, in terms of the criminal law: “What crime has he committed?” That then becomes the correct interpretation of the Constitution. Right?
Wrong. The argument – not always carefully articulated – seems to be that this popular misunderstanding should prevail over the Constitution’s actual original meaning. With all due respect, this objection should require little in the way of response. To state the objection in this form is pretty much to refute it, I think. Nonetheless, it is important to get this form of the objection out into the open and squarely confront and reject it.
Simply put: A popular understanding that represents a popular misunderstanding of the actual, objective original meaning of the constitutional text is not a legitimate basis for concluding that the Constitution has thereby been amended. One can fully support – as I do – the power, right, and propriety of individual citizens, voters, and juries to interpret the Constitution independently of the views of courts and other government actors. But that does not mean that any popular misunderstanding of the Constitution therefore becomes correct. We the People can misinterpret the words of the Constitution, no less than judges and elected officials can. When the people interpret their Constitution, they need to work to get it right. What people wrongly think the Constitution means does not rightly become what the Constitution means.
We, the People, cannot amend the Constitution through our misinterpretations of it any more than the courts rightfully can. The only legitimate way for the People to amend the Constitution is through the processes for amendment prescribed by Article V of the document itself.
Once again, the argument that popular understanding alters constitutional meaning is really just another form of the argument against written constitutionalism. One can make such an argument as a matter of political theory. But one cannot rightly offer such an argument as an “interpretation” of an authoritative written legal instrument. If popular understandings are misshaped, they need to be reshaped and corrected. Indeed, the modest task of constitutional scholarship directed to popular audiences should be to enlighten, and to encourage correct understanding by, the general public, according to correct first principles of constitutional interpretation.
That completes my tour of the principal objections to the original understanding of the impeachment power – that it is susceptible to abuse, too strong as a policy matter, would overturn elections, and is inconsistent with actual practice.
In my next few posts, I propose to take up some “puzzles” concerning the impeachment power – not quite objections to it, but important questions concerning it: What is the relationship between the power of impeachment and criminal prosecution? Must one necessarily precede the other? What is the relationship between the power of impeachment and concerns about an officer’s incapacity, inability, insanity, or mental or psychological instability? Can a president (or judge) be impeached on such grounds? Or is the remedy for such situations confined to the procedures marked out by the Twenty-fifth Amendment?