Thursday, April 19, 2018

Presidential Impeachment in Partisan Times

I’ve posted an essay, “Presidential Impeachment in Partisan Times: The Historical Logic of Informal Constitutional Change” to SSRN.  The argument of the essay runs as follows.  The unconventional presidency of Donald Trump has made presidential impeachment once again an issue of national concern.  But do legal academics have a good grasp on what happened in past presidential impeachments with respect to the meaning of the constitutional standard (“high crimes and misdemeanors”)?  In this essay, I argue that prior scholarship has largely ignored the historical context and thus the real lessons of the three most prominent instances in which Congress attempted to impeach and convict a president: those of Andrew Johnson, Richard Nixon, and Bill Clinton.  The essay then goes beyond these historical episodes to make a contribution to the ongoing debate in constitutional theory over theories of informal constitutional change. 

Impeachment scholarship has been predominantly originalist.  There is a large measure of consensus on the meaning of the “high crimes and misdemeanors” standard, which I call the “Hamiltonian vision.”  The Hamiltonian vision is that impeachment can be used for a broad category of “political” offenses.  Most scholars agree that impeachment does not require Congress to allege an indictable offense or other violation of law.  Despite this scholarly consensus, the historical reality of the Johnson, Nixon, and Clinton impeachments is quite different.  Contrary to prior legal scholarship, I argue that due to the rise of organized political parties, a party-political logic overwhelmed the framers’ design and created a situation in which the position that impeachment is limited to indictable offenses could not be effectively discredited.

I then use the example of impeachment to generalize about the process of informal constitutional change and understand what I call its “historical logic.”  The essay goes beyond a simple reaffirmation of living constitutionalism to advocate the value of “developmental” analysis.  Developmental analysis makes explicit what is implicit in most work on living constitutionalism – that it rests on a historicist approach in which institutional changes such as political parties establish new constitutional baselines which are the practical equivalent of constitutional amendments.  These baselines then form the new context going forward for evaluating the constitutionality of official action.