Originalism may well include some consideration of consequences, but in a disciplined manner that prevents justices' values from driving the process.
One need not see President Trump’s impeachment and trial as Congress’ finest hour to recognize it as a respectable moment for the Constitution. The House may have acted hastily; the Senate may have prejudged the case; both bodies may have dug into partisan rather than institutional trenches. But the architecture of the regime worked in its most basic function of refining and enlarging—which entails ultimately respecting—the public’s views.
The Constitution’s purpose is not to do perfect justice. It is to combine the principle of deliberate majority rule with accommodation of intensely held minority views. There is a reason the nation’s Latin motto is e pluribus unum (“from many, one”), not fiat justitia ruat caelum (“let justice be done though the heavens fall”).
In the end, the Constitution is a mechanism for enabling the people to govern themselves without coming apart. That entails an underlying ideal of majority rule but also institutions that encourage accommodation of political minorities. If America is going to remain polarized, and all indications are that it is for the moment, we had best start learning to respect both principles.
James Madison did. The most fundamental way he respected his core principle of majoritarianism while encouraging respect for minorities was to harness the power of conditions and institutions that caused people to stop and think before acting. The separation of powers, which puts a brake on legislation, was one of these. So was the size of the country in an age of slow communication. Madison believed these constitutional pauses would allow passions to disperse and reason to take hold.
Meanwhile, constitutional devices that are often derided as undemocratic—such as the Electoral College and the equality of large and small states in the Senate—serve the purpose of helping to accommodate those who are not part of a raw majority.
For Madison, this was a matter of national survival. The cohesion of the original 13 states was necessary to maintain the new nation’s independence from a still threatening Great Britain. Today, the country is secure, but cohesion serves the purpose of maintaining what Abraham Lincoln called “the mystic chords of memory.” With Democrats and Republicans ideologically separated but geographically interspersed, it behooves us to find ways to get along. If patriotism does not impel us to work with political minorities, self-interest might: Those who belong to a narrow majority today, as opponents of President Trump temporarily do, might stop and ask how they would fare as a political minority in a system without the protections they now decry.
The process of impeachment requires Congress to connect this respect for the majority will—the House, Federalist 65 says, accuses in the name of “the people”—with the accommodation of political minorities. Importantly, impeachments are so convulsive—and convulsion is so contrary to the aspiration to national unity—that a president can only be removed by an overwhelming margin that clearly includes both a large majority and enough of a minority to reconcile dissenters to the result.
This representative function of the Constitution—its ability to register what the people want in a way likely to keep the nation together—is its fundamental purpose. It cannot guarantee just results in every individual case, only a tendency toward justice that grows with time—what might be called quantum constitutionalism.
Polling on impeachment registered a fragile majority for Trump’s conviction and removal. That majority, however narrow, is itself notable. Senator Susan Collins could not have been either serious or sincere when she said she thought the impeachment had taught Trump a lesson, a notion he promptly repudiated. Still, the public majority that favored his conviction might serve to clip the wings of future chief magistrates. Trump’s actual removal was not necessary to do so, especially given the bitter divisions among the public.
This problem of a close majority that seeks to remove a president compared to a smaller but at least equally intense minority determined to keep him reflects a variation on what Willmoore Kendall and George W. Carey called the “intensity problem”: What if a narrow majority has a loose preference for something the minority vehemently opposes?
Generally speaking, if such a group wants to stay together, the minority should be accommodated. The challenge in the case of Trump’s impeachment is that both sides felt intensely. But the majority for removing him was never large enough to reconcile the minority to that result. Any process that leaves a substantial proportion of Americans feeling strongly that a coup has been affected—no matter how wrong their constitutional reasoning about impeachment may be—is not one for which the constitutional system was designed.
In that sense, the Constitution won ugly: It achieved what it should—the accommodation of intense minority views—despite the antics of members of Congress who rushed or prejudged the case or, worse, accepted without comment the absurd claim that impeachment requires a literal crime.
The frustration pro-impeachment Americans feel is rooted in an understandable desire for abstract justice. Trump was guilty, the logic goes, and so his acquittal was unjust. But impeachment is a political device, not a juridical one. It invariably does and should involve political judgments not just about whether an act was committed but also about whether removal from office is prudent. And while the Constitution’s preamble aspires to “establish justice,” its other ambitions—“domestic tranquility” among them—are not always compatible with justice pursued to the utmost.
There is, beneath all this, a warning: For Madison, it was in the majority’s interest to accommodate the minority because he assumed coalitions would shift from issue to issue. That chastens winners, who know they may soon be in the minority, and it salves losers, who know they fell short today but may prevail tomorrow.
Because Madison’s assumption appears to rely on flexibility, polarization challenges it. If party labels describe immovable commitments that cut across most major issues and prevent coalitions from realigning as issues change, the Madisonian logic begins to erode. If these overbroad coalitions harden geographically into an urban-rural divide, the result—which Madison predicted when he noted that the real divide in America would not be between large and small states but rather between northern and southern ones—can be disastrous.
There are no issues dividing Americans today of either the intensity or moral gravity of enslavement. Nonetheless, if last week’s acquittal was a moment when the Madisonian system performed as it should, it is also a call to Madisonian healing.
Magnanimity is not Trump’s strong suit. Neither is introspection. But we do not always have to look to presidents for healing. Perish the thought, we might even look to ourselves. To that end, Trump’s partisans can begin listening to why his critics dislike him so intensely, while the president’s critics can examine their condescending treatment of his supporters as rubes. This constitutional moment resolved itself. There is never a guarantee of future success.