The problematics of impeachment (II): Constitutional interpretation v. constitutional design

Sandy Levinson

Because the Impeachment Clause was badly drafted and is the only mechanism, together with the useless 25th Amendment, for displacing an unfit president, it is, of course, the focus of efforts in "constitutional interpretation," a subject that lawyers profess to have some expertise in.  So we are being treated to the back-and-forth especially as to how to interpret the truly unfortunate phrase "high crimes and misdemeanor." This is a source of almost endless mischief, as seen most clearly in Alan Dershowitz's lifeline to Trumpistas.  I share the almost unanimous view that he is incorrect in his belief that impeachment requires either a crime or something close to one, as against, say, unequivocal "abuse" of presidential power.  But let's assume for the moment that Dershowitz is correct.  After al, his textual argument, drawing on the maxims ejusdem generis or noscitur a sociis, is the kind of thing we teach to impressionable first-year students as ways of making sense of not altogether precise texts. Were his analysis offered by a first-year student in a final exam, I think we'd give it a quite high grade with regard to demonstrating a mastery of a certain form of legal rhetoric and advocacy.  The problem is that it is an almost literally insane way to construe a constitution that, in Marshall's words, is "designed to endure" and/or maintain a republican form of government instead of descending into the worst form of elective monarchy.  It means that under his argument, which is now being parroted by Trumpistas, we are stuck with a patently unfit president, whose abuses may constitute clear and present dangers to our national survival even literally, let alone metaphorically, because the abuses do not meet some refined notion of criminality similar to, even if not identical with in terms of seriousness, to "bribery" or "treason."  I repeat:  No sane person would design such a Constitution if the designers were wisely following the Framers' own important instructions, i.e., learn the "lessons of experience" and thus to design a Constitution that we can quite literally live with in the 21st century.  And, by the way, no sane person would believe that the best way to honor the Framers is by endless repetition of whatever they happened to say in the waning days of the summer of 1787, when they wanted to get the hell out of Philadelphia, instead of, indeed, thinking for ourselves, as they themselves did (and which we are unwilling to do).

I have made it crystal clear that I wish we had a "vote of no confidence" provision that would serve, mercifully, to make lawyers nearly irrelevant to the discussion.  We don't.  Why that isn't viewed as a central defect of the Constitution is beyond me, save that lawyers are simply not educated to ask questions about the wisdom of our Constitution.

A second point: My Balkinization colleague Gerard joins the estimable Charles Black in believing that we ought to have a high burden of proof to surmount before firing an unfit president.  Neither adopts "beyond a reasonable doubt" (which is an insane standard for impeachment), but both seem to believe it should be higher even than "clear and convincing evidence."  Why?  Nothing is offered by way of genuine argument.  The answer would seem to require a paralyzing fear of false positives--i.e., misidentifying a worthy president as someone deserving displacement--and therefore accepting a host of false negatives--i.e., keeping in office people who, by stipulation, a majority of the House and even a majority (though not 2/3) of the Senate may agree, on the basis of preponderance or even "clear and convincing" evidence, should be bounced.  What explains such a truly questionable--I'm tempted to say irrational--devotion to presidential incumbents?  Is it the heightened belief that the "people's choice"--at least as mediated through the also idiotic electoral college system--is entitled to extreme deference, even if, by stipulation, polls plus the elected representatives of "the people" have come to agree that the president is in fact unfit (whether or not indictable as a "criminal")?  Perhaps "preponderance' is too lax, though I'm not sure why, especially in a world of political parties where we would continue to need two-thirds of the Senate to convict.

But why in the world isn't the "clear and convincing evidence" that administrative agencies use all the time sufficient?  Is the desire to be even stricter simply another sign of the pathological way we treat our presidents as father figures and our strange incorporation of Josh Chafetz's insight that since impeachment=tyrannicide, and therefore paracide, it should become almost literally unthinkable?  My colleague Jeff Tulis suggests that we'd be far better off as a political system if impeachment had become a fairly normal part of our politics, beginning, perhaps, with the impeachment, in fact proposed by some, including John Quincy Adams, of His Accidency John Tyler, the unfit part of the Tippacanoe and Tyler too Whig ticket that won the presidency in 1840.  I think Jeff is right. We would, at the least, have a more truly adult political system instead of one mired in grand mythology about the importance of presidents and preserving them in office.

 Contrary to what some of my critics have suggested, this doesn't mean moving all the way to a parliamentary system, as much as I might prefer that.  It would mean, though, that Congress could rid us of unfit chief executives who can do (and in fact do inflict) much mischief, as Tyler did, including the unconstitutional annexation of Texas by ordinary statute instead of the treaty that would never get through the  Senate.  Instead, both Cass Sunstein and Larry Tribe offer their tut-tuts at the very prospect of impeaching Tyler and generally adopt what has become the party line that impeachment is a true last resort to be used only in exceptional situations.  Given the power of the modern president--who, incidentally, is prone to declare "exceptional situations" in all sorts of circumstances in order to enhance his own power--we ought to be more willing to try to make sure that we can sleep at night with a given incumbent in office.  Perhaps a well-designed constitution, unlike our own, would spell out not only the criteria for firing a president, but also indicate the level of persuasion that a conscientious legislator--if we can imagine such a thing--would have to achieve.  Instead, we are stuck with a Clause whose practical effect, as demonstrated literally every day right now, is only to increase the justified cynicism of ordinary laypeople people and the despair among lawyers who see travesties of legal argument, at least if the arguments are assessed from anything other than the most truly academic of perspectives,  accepted as the last word by hyperpartisans looking for any port in a storm.



Posted 11:52 PM by Sandy Levinson [link]