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Michael Ramsey


On Absurdity
Michael Ramsey

On the basis of the absurdity canon, Mike Rappaport argues that the Vice President cannot preside over his own impeachment trial.  I disagree (as I said in a prior post), and I’ll outline my reasons here.

To begin, the question arises from three related sentences of Article I, Section 3.  First, “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.”  Second, “The Senate shall have the sole Power to try all Impeachments.”  Third, “When the President of the United States is tried, the Chief Justice shall preside[.]”

To me, these provisions bar the Vice President from presiding at the President’s impeachment trial, but they allow him to preside at his own.  I agree that’s a bad result (though hardly an unendurable calamity), but that doesn't change its meaning.

Professor Rappaport disagrees, relying on the absurdity canon.  In his view, readers in the founding-era used the absurdity doctrine to determine the meaning of texts, including the Constitution, so to find the true original meaning of Article I, Section 3, we should read it as the founding generation would have, including by employing the absurdity canon.

I agree with the basic proposition that we should use interpretive principles of the time, to the extent they were widely understood and accepted, to find original meaning.  And I think Rappaport’s argument on the Vice President is a lot better than Professor Amar’s, which I criticized in my first post.  But I still find it unpersuasive, for two reasons.

First, I don’t think the absurdity principle means what he thinks it means.  In Reading Law, pp. 237-38, Scalia and Garner say:

[E]rror-correction for absurdity can be a slippery slope.  It can lead to judicial revision of public and private texts to make them (in the judges’ view) more reasonable.  To avoid this, the doctrine must be subject to two limiting conditions:

(1)   The absurdity must consist of a disposition that no reasonable person could intend …[and]

(2)   The absurdity must be reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error … The doctrine does not include substantive errors arising from a drafter’s failure to appreciate the effect of certain provisions.

Scalia and Garner give as examples a statute providing that in a lawsuit the winning party shall pay the losing party’s attorney’s fees (obviously the opposite was intended) and (my favorite) an actual Arkansas law that, after enacting a new rule, declared “All laws and parts of laws, and particularly Act 311 of the Acts of 1941, are hereby repealed.”  As the Arkansas Supreme Court held, obviously the legislature meant to repeal all state laws in conflict with the new provision, not all of the state’s laws.

Rappaport’s proposed revision of Article I, Section 3, in my view, doesn’t meet either of these requirements.  To take the second one first, he is not proposing a simple textual fix to correct an obvious drafting error.  If he proposed to change the first of the relevant provisions to say “The Vice President of the United States shall be President of the Senate except in the case of his own impeachment,” he would create an odd lack of fit with the provision on presidential impeachment, which gives another case in which the Vice President doesn’t preside.  If he proposed to change the provision on presidential impeachment to read “When the President or Vice President of the United States is tried, the Chief Justice shall preside,” then he would create a new duty for the Chief Justice that might not be thought necessary even by those who wouldn’t want the Vice President presiding.  Instead, he has to completely rewrite this part of Article I, Section 3 to say: “The Vice President of the United States shall be President of the Senate, except in trials of impeachment of the President or Vice President, and when the President of the United States is tried, the Chief Justice shall preside.”  That’s a better rule, to be sure, but it’s hardly a technical correction of the drafting. 

In short, Rappaport is not proposing to correct the text to convey something the framers obviously intended to say but omitted due to a "technical or ministerial error"; rather, he wants to add an exception that the framers likely didn’t consider but (he thinks) should have.  That’s exactly contrary to Scalia and Garner’s second requirement.

One problem with Scalia and Garner is that they often don’t show when their version of the canons they discuss arose, or whether theirs is (or was) a consensus view.  And sometimes their descriptions seem incomplete.  For example, I would take the absurdity canon at least one step further than they do, to say that a text that literally makes no sense can be disregarded.  I recall a story, probably apocryphal, of a statute from the earlier days of railroads, providing something like: “If two engines approach each other on the same track, neither shall move until the other is gone.”  I would not enforce this statute literally, even though there’s no simple textual fix.

But Professor Rappaport is a long ways from this example as well.  There's no evidence that the drafters intended to exclude the Vice President but then failed to include the provision through bad drafting.  It’s not impossible or incoherent to allow the Vice President to preside at his own trial.  It’s just a conflict of interest of the kind that, as a general matter, we prefer to avoid for policy reasons.  Corrections of this magnitude – in effect, saying if the framers had thought of “x” they would have done “y” – require a very muscular absurdity doctrine that seems to go far beyond a proven consensus view of the doctrine and leads down the slippery slope Scalia and Garner invoke.

This leads to my second objection: even on Rappaport’s version of the canon, I don’t think allowing the Vice President to preside is absurd (I do think it’s a mistake, but that’s not the test). 

The question, to be precise, is whether the Constitution should prohibit the Vice President from presiding.  Rappaport's title suggests that the question is whether the Vice President must preside, but that’s not right: despite the constitutional language, almost no one thinks the Vice President must always preside over the Senate (and in fact he usually doesn’t).  Surely the Vice President would be allowed not to attend the impeachment trial, and thus to permit the Senate to appoint an alternate presiding officer (as the Senate routinely does in other circumstances).  The question is whether the Constitution should affirmatively bar the Vice President from presiding.

I think there are several reasons why it might not.  One cannot constitutionalize every needful rule.  Perhaps the framers would have thought that the Vice President’s sense of honor would cause him to recuse himself without a constitutional mandate to do so.  (We expect judges to recuse themselves due to conflicts of interest, but that’s not constitutionalized as a general rule).  Perhaps the framers would have thought the Vice Presidency was not an important enough office, nor an impeachment sufficiently likely, to warrant a special rule (lest the Constitution, trying to address every possibility, become unmanageably detailed).  Perhaps the framers would have thought that the remote chance of the Vice President presiding wasn’t worth worrying about given the relative unimportance of the presiding officer in such a trial.  To say that the framers, had they thought about it, would have written differently, is just speculation.

It’s true that the framers created a special rule for presidential impeachments.  But presidential impeachments are different because there is a third party to protect: the President.  (Recall that in the early days Vice Presidents were more likely to be rivals than allies of the President).  In fairness to the President, he should not have an adversely-interested person presiding.  There’s no issue of fairness to a third party where the Vice President presides at his own trial.  Further, trial of the President is a much more important matter, so perhaps it alone merits a special rule.  In any event, the fact that the drafters created a special rule for the President and didn't create one for the Vice President seems at least as plausibly to suggest they thought a special rule for the Vice President wasn't necessary.

To be clear, I think the rule regarding the Vice President probably should have been constitutionalized.  But the interpreter's job isn’t to fix framing errors; it’s to understand the text as written, errors and all.  The absurdity doctrine, used narrowly to correct technical errors and escape manifest incoherence, does not threaten that core distinction.  But once we start trying to imagine what the framers would have done, had they thought about something that they overlooked, we are not interpreting but rewriting.