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05/31/2017

Liberal Originalism and the Impeachment Clause
Michael Ramsey

Neil Buchanan (GW), one of the more stridently partisan bloggers at Dorf on Law, has this post: Another Anti-Impeachment Talking Point Bites the Dust.  Scroll through various criticisms of President Trump, Republicans and conservatives to this passage: 

There are situations in which scholars disagree about whether the "framers' intent" is the proper way to understand a constitutional concept, but this is not one of them.  As an excellent congressional analysis from the Watergate era explains, there is no question that "high crimes and misdemeanors" in the impeachment context was not meant to be co-extensive with the criminal meanings of those words.

Of particular interest is that the framers all seemed to view the phrase as unambiguous, and they treated it as a term of art to reflect its origins in British law.  There was briefly an effort by George Mason to use the word "maladministration," but James Madison objected to that word for being too vague.  Mason then substituted "high crimes and misdemeanors agst. the State" to expand impeachment beyond the two delineated offenses of treason and bribery, and his proposal was adopted.

Trump need not, therefore, have committed treason or have been directly bribed in order to be impeachable.  And such further grounds for impeachment are not limited only to actions for which criminal indictment is immediately appropriate.  Trump, like all presidents, must not "subvert the Constitution," in Mason's words.

I think this is basically right.  (See this article from the Clinton era by Gary McDowell, "High Crimes and Misdemeanors": Recovering the Intentions of the Founders, mainly making a different point but very supportive of the idea that "misdemeanors" means not "minor crimes" but "malfeasances in office.")  [Aside: whether President Trump has actually committed impeachment-level malfeasances in office is a different question and Professor Buchanan does not seem very persuasive to me on this point.]

My main point to highlight here is: Professor Buchanan, who I'm sure is not an originalist, thinks (a) that the original meaning of the impeachment clause is clear; and (b) that we should care about the clear original meaning of the impeachment clause in thinking about what the impeachment clause means today.

I say this not to suggest that Professor Buchanan is being hypocritical, but to suggest that he is being entirely conventional.  It is extremely common in legal argument, including in particular among liberal law professors, to make originalist arguments when they support the conclusion one wants to reach (and to not make originalist argument when they don't).  That in turn suggests that the difference between originalists and conventional liberal legal scholars is that the former think originalist arguments should control all or most of the time, while conventional legal scholars think that they should control some of the time.  (See also my comments on a similar impeachment-related argument by non-originalist Noah Feldman (Harvard)).

This point holds, though, only when particular constitutional clauses are being debated.  When the debate is about originalism as a theoretical matter, the critique of originalism is pitched as much more dramatic.  Using the Constitution's original meaning to guide modern adjudication, it is said, is theoretically incoherent, practically impossible, morally indefensible, or (at best) an approach that can only be undertaken by trained historians.  (These arguments were made so often in the context of Justice Gorsuch's confirmation hearings that I won't both with citations; they are surely familiar to everyone at this point).

But the argument that originalism cannot be a guide to modern interpretation is belied by the fact that conventional liberal legal scholars such as Buchanan and Feldman routinely and unapologetically use originalism to find the meaning of particular constitutional clauses.  Those who argue the impossibility of originalism are not quarreling only with originalists; they are quarreling with convention liberal legal argumentation.