Impeachment- a Citizen's Guide

by Cass R Sunstein

  Since 1787, Americans have learned an unfathomable amount, and our manners and our opinions have dramatically changed. Institutions and rights have advanced. Slavery has been abolished. Women can vote.

  To be sure, those changes came through constitutional amendments, but even without changes in the text, our understandings of the Constitution’s eighteenth-century words go far beyond what the founding generation thought. The Constitution now protects women against discrimination at the hands of the federal and state governments—even though the founding generation had no objection to such discrimination, and even though the constitutional amendments that followed the Civil War were not believed, at the time, to ban it. The Constitution now forbids the federal government from discriminating on the basis of race—even though no provision of the document, as originally understood, forbids such discrimination. (Alert readers will immediately ask about the equal protection clause, ratified after the Civil War—but that clause applies only to the states, and not the federal government. And by the way, the better view is that the equal protection clause, as originally understood, did not forbid school segregation at the state level.)

  Our free speech principle is far more expansive than the founding generation believed. The text didn’t change, but our understanding of the text did, and as a result, we’re a lot freer. The very broad protection now given to political dissent almost certainly goes beyond the understandings of the founding period. Our Constitution protects the right to use contraceptives, the right to choose abortion, and the right to same-sex marriage, even though none of its provisions was originally understood to protect any of those things. If constitutional provisions were interpreted to fit with the original judgments of those who ratified them, our constitutional system would be radically different, barely recognizable, and much worse.

  Maybe we would do lots better if we abandoned all that history and decided on our own what should count as high crimes and misdemeanors. Why not?

  Originalists

  A popular answer comes from the many people, including Justice Scalia, who have been drawn to the idea of “originalism.” Most originalists insist that the original public meaning of constitutional provisions is indeed decisive. In their view, future generations, and courts, have no authority to go beyond it.

  The original public meaning refers to the common understanding of constitutional terms at the time that they were ratified. Some originalists believe that what governs is the intentions of the framers—but they are in the minority. Justice Scalia and those who follow him do not speak of anyone’s intentions, but instead ask what the terms were originally understood to mean. That might seem like a subtle distinction, but it matters. Intentions are what can be found inside people’s heads. By contrast, public meaning is an objective social fact. In chapter 2, I said a fair bit about intentions, but most originalists would downplay what happened at the Convention (because it was secret) and emphasize instead the ratification debates insofar as they offer evidence about the original meaning of the impeachment clause.

  If originalism is the right approach, a lot of constitutional questions get easier to answer. Suppose that the original public meaning of the words “the freedom of speech,” back in the late eighteenth century, would have authorized the government to ban commercial advertising and obscenity. Originalists insist that in the twenty-first century, unelected judges should be bound by that judgment of We the People.5 They have no license to go beyond the original meaning to invoke their own judgments about how “we” should understand “the freedom of speech.” That would be an abuse of judicial authority, a violation of the rule of law. Originalists think that the first task of interpretation is historical. In many cases, that might turn out to be the only task. If We the People want to change the Constitution, of course we can do that. But constitutional change cannot legitimately occur through interpretation.

  On the current Supreme Court, Justices Clarence Thomas and Neil Gorsuch embrace originalism. True, their approach leaves many questions open, because history can be murky, but it seems to be an honorable position. What’s wrong with it?

  The Living Constitution

  Many of those who reject originalism argue that the founding generation did not intend to freeze the specific judgments of their own time. So originalism turns out to be self-defeating. The framers and the ratifiers—it is claimed—were not originalists. They had the foresight to know what Jefferson knew. The best evidence is that they chose broad terms (the freedom of speech, liberty, due process of law) whose particular meaning would necessarily change over time, with new circumstances and fresh learning. According to Justice Anthony Kennedy, writing in the 2015 case that ruled that all states must recognize same-sex marriages:

  The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.6

  Many people admire these sentences. (Many abhor them.) Right or wrong, Kennedy is offering a large idea here, and he is hardly the first to do so. The time-honored claim is that the founders “entrusted to future generations a charter,” and so the specific meaning of that charter is up to us, not them. There’s more than an echo here of Franklin’s answer to Mrs. Powel.

  One way to keep the republic is by being faithful to the text, but by specifying our own understandings about the precise meaning of “liberty.” As some constitutional theorists put it, the text sets out a broad “concept,” not a particular “conception.” The concept does not change, but the conception does.

  Kennedy is connecting his view of constitutional interpretation with democratic values. When the meaning of constitutional rights evolves, it is because society’s understandings evolve, and judges are alert to those evolving understandings. After all, we do not see liberty now as they saw it centuries ago. The same is true of the Constitution’s structural provisions, such as the grant to Congress of the power to “declare war.” Such provisions can be interpreted in a way that is faithful to the document’s words, but not necessarily to eighteenth-century understandings of the meanings of those words. The world has dramatically changed since then, and so has the role of the United States in the world. Perhaps we should understand Congress’s power in a way that recognizes those dramatic changes—for example, by allowing the president, on his own, to use military force, at least if his use falls short of full-scale “war.”

  Is Kennedy right? Note that his argument seems to be about history and about what the founding generations actually meant to do. Among professional historians, that argument is deeply controversial. Did the founding generations really want future generations—and unelected judges—to reinterpret the Constitution by reference to what they “learn” about the meaning of liberty? Or did they seek to limit posterity, and judges, to the original understanding of the document that they wrote? Did they mean the idea of “high crimes and misdemeanors” to evolve, or did they mean to freeze the concept? In view of their concerns, there’s a pretty good argument that they meant to freeze it!

  Many of those who reject originalism have a different argument, and it’s more fundamental. They contend that their objection isn’t really about what members of the founding generations meant to do. They don’t rely on Kennedy’s claim about the judgments and understandings of long-dead people. They don’t believe in time machines. They insist that the basic question is how to interpret the Constitution, and we can’t resolve that question by asking about history. That is inescapably a question for us.

  Suppose, for example, that the founding generation had a narrow view of “the freedom of speech.” Suppose t
hey believed, hoped, and expected that future generations would be bound by that narrow view. Are we bound? Certainly not. Whether we are bound by the original understanding depends on whether we conclude, on principle, that we should be bound by the original understanding. Those who reject originalism believe that our constitutional order is far better if we conclude that we are not bound. They believe that at least with respect to individual rights (where circumstances and values change), and perhaps with respect to constitutional structure more broadly (where again, circumstances and values change), we do much better to follow the text and pay respectful attention to the original understanding—without being rigidly constrained by it.

  In my view, that’s Justice Kennedy’s best argument. He is claiming that our system of rights is better if we take the Constitution to set out broad principles whose particular content changes over time. Maybe that’s true of the impeachment clause as well.

  Tradition, Democracy, Morality

  If we are loosened from the views of the founding generation, what do we do? Does anything go? Hardly. Recall that we are bound by the text. The question is where to turn when the text is vague or ambiguous.

  Some people, like Justice Felix Frankfurter, have emphasized the importance of paying close attention to national traditions as they unfold over time. Traditionalists do not focus only on the founding generations. They ask about American practices over the decades and centuries. They insist that practices have a lot of weight.

  Suppose that Congress and the president have agreed for many decades that the president has the authority to use military force on his own, and so does not need congressional approval, as long as the use is limited and falls far short of full-scale war. Sure, the Constitution gives Congress the authority to “declare war.” But if presidents have long used military force without congressional approval, that’s relevant to our interpretation of the Constitution. As Frankfurter had it, traditions can serve as a gloss on the text. For many questions that involve the powers of Congress and the president (such as when the president can make recess appointments), traditions turn out to be highly relevant to constitutional decisions. In Frankfurter’s view, long-standing traditions can help us interpret ambiguous text, and they can even overcome the original understanding.

  Others give less weight to traditions and more to the idea of self-government itself. Justice Stephen Breyer argues that an animating constitutional ideal is “active liberty,” meaning active self-governance by We the People.7 In Breyer’s view, we should interpret ambiguous constitutional provisions with that ideal in mind. The general idea of “active liberty” can trump the original understanding. Breyer himself is no originalist—in fact he is a strong critic of Scalia’s approach—and in the face of ambiguity in the text, he would invoke democratic ideals.

  Believers in active liberty would be especially suspicious of any restriction on people’s right to vote. They would be inclined to think that any deviation from the idea of “one person, one vote” should be invalidated under the equal protection clause; they would want to strike down efforts to make it harder for people to register to vote. And if We the People were to embrace some institutional reform expanding or contracting the power of the president, those who believe in active liberty would want to uphold it.

  Still other people, most prominently Professor Ronald Dworkin, argue for a “moral reading” of the U.S. Constitution. What this means is that we must follow the Constitution’s words, but in a way that makes best moral sense of them. In Dworkin’s view, we have an obligation to be faithful to the Constitution’s text. If we are not, we are not interpreting it at all. But when it is vague or ambiguous, we should not try to be historians and attempt to figure out what the founding generation thought. Instead we should think, for ourselves, about what makes the constitutional provision as good as it can be—on moral grounds.

  If, for example, the equal protection clause is interpreted to forbid racial segregation, it is a lot more appealing, from the moral point of view, than it would otherwise be. If the cruel and unusual punishment clause is taken to forbid torture, it is a better safeguard of human rights.8 Dworkin freely acknowledges that if judges are “moral readers,” they will sometimes disagree. In his view, that’s fine. They’re disagreeing about exactly the right thing.

  Three Dead Ends

  Frankfurter, Breyer, and Dworkin offer powerful arguments about constitutional interpretation in general. But in the context of impeachment, their approaches are not promising. They are dead ends.

  If you are a traditionalist, you will ask: With respect to impeachment, what have Americans actually done? How have we understood high crimes and misdemeanors since 1787? These are fair questions, but as we will soon see, traditions do not give clear answers. The total number of impeachments is low, and the number of presidential impeachments is very low. And if we wanted to understand our traditions, we would need to include cases in which the House of Representatives did not pursue impeachments even though there were arguments that it should have done so. The problem is that we cannot discern, from history, anything like a clear understanding of the idea of high crimes and misdemeanors. As Gertrude Stein wrote of Oakland, “there is no there there.” (Okay, that’s unfair to Oakland. But still.)

  If you believe in active liberty, you might be inclined to think that We the People should be allowed to define high crimes and misdemeanors however we want. But for Madison’s reasons, that would be a horrendous mistake. It would allow impeachment because of intense political disagreements. It would go far beyond “maladministration,” which was already too broad. It would make hash of the system of the separation of powers.

  If you believe in moral readings, you will want to ask: What’s the morally best understanding of high crimes and misdemeanors? Good luck with that one. The question is a recipe for chaos. People will disagree, and their disagreements will inevitably reflect their enthusiasm, or their lack of enthusiasm, for the current occupant of the White House. That’s no way to run a government.

  Impeaching History

  For those who embrace originalism, the historical materials are conclusive. To the extent that they give guidance, they tell us what we need to know. True, some hard cases will remain. But for an originalist, those cases must always be explored under the founding generation’s framework, rather than one made up by current members of the House of Representatives, by the president’s fiercest defenders, by the president’s fiercest critics, or by some op-ed writer or law professor.

  But even if you don’t love originalism in general, you might love it for impeachment. That might seem like an opportunistic position, but it has unmistakable logic. In their different ways, Frankfurter, Breyer, and Dworkin are concerned with changes in circumstances and values. With respect to words like “liberty,” “equal protection,” and “due process,” they do not want to freeze old understandings; they want to incorporate new learning. Fair enough. But with respect to impeachment, the problems confronted way back in 1787 are not so different from those we confront today. Sure, the president is far more powerful, and sure, he can commit “misdemeanors” that the founding generation could not have imagined: uses of drones and nuclear power, surveillance of email, abuses of authority under the Clean Air Act. But the abstract concerns that motivated them—treason, bribery, corruption, egregious abuse of public trust or misuse of presidential authority—are no different from those that concern us. They are exactly the same.

  There is a further point. Much of constitutional law, including the understanding of constitutional rights, has unfolded through a careful process of case-by-case decisions, in which elaborate principles are built up over a period of many decades. That’s what has happened for freedom of speech, for protection against unreasonable searches and seizures, for the equal protection of laws. After decades, the law often makes a lot of sense. The American people live with it, and sometimes even revere it. It would be pretty radical t
o tear down the whole edifice of constitutional law as it has been constructed over time by insisting that historical research shows that it is inconsistent with what Alexander Hamilton, James Madison, and Ephraim Wood thought as of 1791. Never a radical, Justice Scalia once proclaimed that he was a “faint-hearted” originalist, which meant that he had a lot of respect for precedent, and if the Court had developed stable principles, he would usually be prepared to go along. Faint-hearted originalism is wise, and it’s courageous too.

  But for impeachment, we don’t have a lot of judicial rulings. We have none—and we never will.9 (An explanation will come in due course.) If you have nothing else to work with, you might be inclined to think: Let’s not make it up. Let’s not start from scratch. Let’s figure out the original meaning of the impeachment clause. That’s an excellent thought.

  The conclusion is strengthened once we focus on the content of the original meaning, and on how very unlikely it is that we could improve on it if we tried to interpret “high crimes and misdemeanors” by our own lights. Those who fought the American Revolution, preferred liberty to death, defeated a king, lived through the Articles of Confederation, and settled on a powerful, elected, removable executive knew what they were doing. They threaded a needle. They accomplished a miracle. There’s no reason to depart from their understanding of their framework. We can’t do better than they did, and if we tried, we would probably do worse.10