The problematics of impeachment (I): The specific problems of Charles Black's take on the presidency

Sandy Levinson

It will presumably surprise no one that one of my major responses to the present debacle going on in Washington is further distaste for what I believe, more than ever, is a deeply flawed and dysfunctional Constitutional that might quite literally contribute to destroying the country (and even the world)  as we know it.  I will undoubtedly be posting a number of entries elaborating my arguments.  But for now I want to focus on a fairly peripheral matter, which is the remarkable authority granted to Charles Black's 1974 Handbook on impeachment. Black was clearly a major presence at the Yale Law School during the 1970s (and in the legal academy for a much longer period).  People speak of him with reverence. I have no reason to challenge the veneration directed at him.  I met him once, for approximately fifteen seconds, but I of course have read some of his major work, including two unforgettable essays on Brown and on the "state action" doctrine, which he accurately described as a "conceptual disaster area."  There is also, of course, his classic book on structural constitutional interpretation.  But his principal fame now is as the author of the slender book recently republished by the Yale Press with much new material added by my friend and colleague Philip Bobbitt.  Indeed, we are co-teaching a reading course on the book this semester.  Mark Tushnet alludes to the book in his excellent comment on the role, if any, that legal academics have to play in the public debate about impeachment.

I want to focus, for now, on why I find the Handbook to be remarkably problematic and in significant ways anachronistic, coming both literally and metaphorically from another era.  It is an excellent primary source about how a gifted and important law professor, much venerated by his students, was thinking at the time of  Richard Nixon's impeachment in 1974.  But that does not speak to its genuine relevance today. I find it somewhat similar to running across a Victorian etiquette book on how to respond if the Queen invites you to tea.

Let me, for now, focus only on the four-page introduction to the book.  Paragraph two begins as follows:  "The presidency is a prime symbol of our national unity...."  Given this ostensible reality, "everyone must shrink from this most drastic of measures," i.e., impeachment.  To the extent that one agrees with Black, these are, I believe, among the true pathologies of the American constitutional order..  One of its worst features, perhaps traceable to the Constitution , is the joinder of head of state with the head of government.  The British are lucky enough to have a Queen to whom they direct their emotional attachment re the United Kingdom; otherwise, they treat their prime ministers exactly as Ross Perot correctly suggested in his own presidential campaign in 1992 should be the case:  as our chief employee. Among other things, this means we should display, as the British in fact do, an unsentimental willingness to sack presidents when they are disserving the country. 

What Black is in fact suggesting, without quite saying so, is that we have substituted the "chief executive" for the British Monarch, not only in terms of certain powers (such as pardoning) , but also, as already suggested, as the proper recipient for emotional cathexis.  Thus the playing by the Marine Band of "Hail to Chief," which suggests to most people not only the technical reality that he (or in the future she) is Commander-in-Chief of the armed forces (whatever exactly that means) and not in any sense whatsoever our Chief beyond that.  George Washington might well have been a symbol of national unity.  At least since the election of 1800 (and, as a matter of fact, in 1796, that has been an altogether dubious proposition.  Perhaps Black, who I gather was famous for his civility, believed that we ought to treat presidents as unusual individuals who united the country. but one certainly wonder why we should aspire to that in a non-fascist country. 

The most fundamental issue, of course, is what it should take to fire a terrible president. I will write later elaborating my view that the capture of the Impeachment Clause by lawyers has been an utter disaster, and, of course, Black in fact contributed to that because of his heightened belief (adopted, incidentally, by Bobbitt), that impeachment is most fundamentally a matter of law and not of politics.  But I begin with these introductory comments (by Black) because they capture so well the unfortunately heightened rhetoric we adopt with regard both to whoever occupies the Oval Office and then to the ostensible consequences of displacing that person.  Black doesn't explain why it would be so terrible to fire a president.  The implicit reason, of course, is that it would be the equivalent of parricide (and not simply, as Josh Chafetz suggested some years ago in an excellent article, a useful substitute for tyrannicide).  A more rational political system, I suggest, would not find Professor Black's language so acceptable.  Ross Perot was absolutely correct in his unsentimental description of the president.  And, as we have seen with regard, say, to the Boeing Corporation, a variety of athletic programs, movie studios, etc., the boards of directors re notably willing to sack ostensible leaders when they are thought to have behaved in one or another dicey way.  Even if one believes that immediate firing may be too drastic, very few object to the suspension (perhaps with pay) of the alleged miscreant.  Only at the highest level, with regard to the individual who has power over nuclear weapons, do we believe that demonstrably unfit persons must be left in office unless they can be shown, satisfactory to their literally thoughtless partisan supporters, to have committed criminal acts. 

Black, to his great credit, rejected the nonsense being purveyed by Alan Dershowitz, who believes that we're talking not about firing an unfit employee, but instead jailing him (or perhaps even committing the equivalent of regiicide, as in 1649).  One does not have to demonstrate that a president committed a "criminal" offense, whatever the language of the text.  The fact is that the Impeachment Clause, like several other parts of the Constitution, was dreadfully drafted, in part because, contrary to Black's assurance in the introduction, it was not "very carefully considered." The convention was flailing around at that point trying to figure out for once and for all first how to elect a president--and we got the truly terrible electoral college--and then how to displace one.  (They were not offended by the possibility that an elected president would be displaced; the only question was what it should take.)     But Black still believed, as does Bobbitt, that lawyers have some special insight into what it should take to displace a president.  Like Mark Tushnet (I think), I'm really skeptical. My own concerns are those of a concerned a frightened citizen.  I genuinely don't know what the various testimony including that by good friends whom I truly like and admire, has added to our common life as citizens.

A final comment for now about Black (and his anachoronism).  He emphasizes that theHouse and the Senate, as "responsible tribunals," are "duty bound to act as their own views of the law and the facts, as free as may be of partisan political motives and pressure...."  We ought to expect "principled political neutrality." This may be a noble hope, but it is almost literally a fantasy with regard to the world we live in today.   Our task is not to utter anachronistic and pious hopes, but to address the awful world we live in (including the very epitome of what Jack accurately calls "constitutional rot," Mitch McConnell, who in a proper system would never have been allowed to perjure himself by taking his oath to be "impartial" in presenting and listening to the evidence).  A modern handbook should listen to Donald Rumsfeld:  We conduct politics with the political culture (and  Constitution) we have, not the one we wish we had.  To pretend that Donald Trump is Washington or that Mitch McConnell is entitled to even an iota of respect as a Publian legislator is the equivalent of accepting as true the ravings of huckster. 

How can anyone who teaches constitutional law, especially to younger students, possibly pretend that this is really a republic that they should mindlessly pledge allegiance to?
Posted 3:52 PM by Sandy Levinson [link]