« November 2019 | Main | January 2020 »

35 posts from December 2019


Andrew Ferguson on the Historians' Statement on Impeachment
Michael Ramsey

In The Atlantic, Andrew Ferguson: Historians Should Stay Out of Politics (commenting on the Historians' Statement on the Impeachment of President Trump).  A key excerpt: 

The thesis of the petition goes like this: “President Trump’s numerous and flagrant abuses of power are precisely what the Framers had in mind as grounds for impeaching and removing a president.”

When I first read the statement, I took that superfluous adverb, precisely, as a bad sign. No one knows precisely what the Framers had in mind when it comes to impeachable offenses, and if we did, we could be sure it didn’t involve transcontinental telephone calls, gaga theories about computer servers, Javelin anti-tank missiles, or the sovereign nation of Ukraine, none of which existed when the Framers were framing away. Trump’s abuses and the kinds of violations the Framers thought were impeachable may bear a general similarity, or fall into the same general category, but that’s a different matter. Precision, we see early on, is precisely what the historians are not after.

From an originalist perspective, I'm amused to see 2,051 historians (at last count) affirming that we can know "precisely" what the framers were thinking about a modern constitutional dispute.  That's especially true as we have been lectured at length by historians (different  historians, one hopes) that originalism is a fallacious methodology because we can never really know what the framers were thinking; because history is complex and nuanced, not susceptible to easy answers; because the framers believed a range of things in tension with one another; etc.  Do the statement's signers understand that they are embracing a simplistic version of originalism -- a version that would, I think, be rejected by most legal academic originalists?  In any event, I'll try to remember this "statement" next time a historian claims that originalism is simplistic and ahistorical.


Nathan Chapman: New Light on the Establishment Clause
Michael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause (88 pages) on SSRN.  Here is the abstract:

Americans have long disputed whether the government may support religious instruction as part of an elementary education. Since Everson v. Board of Education (1947), the Supreme Court has gradually articulated a doctrine that permits states to provide funds, indirectly through vouchers and in some cases directly through grants, to religious schools for the nonreligious goods they provide. Unlike most other areas of Establishment Clause jurisprudence, however, the Court has not built this doctrine on a historical foundation. In fact, in Trinity Lutheran v. Comer (2017), the dissenters from this doctrine were the ones to rely on the founding-era record.

Intriguingly, the Court and scholars have largely ignored an early governmental practice that directly bears on the historical understanding of the Establishment Clause: from the Revolution through Reconstruction, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Funds Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all personally participated in the partnerships. Virtually no one objected on constitutional grounds. This is the first Article to place these government-missionary partnerships in their cultural, political, and constitutional context and to thoroughly evaluate their implications for the history of disestablishment and contemporary doctrine.

The Article acknowledges that multiple overlapping factors may account for why no one raised a constitutional objection to the partnerships, including factors unique to “Indian affairs.” But it argues that the dominant reason was that elite white Americans shared a paradigm of social progress that equated republicanism, Christianity, education, and civilization. The practice dramatically qualifies the conventional wisdom that the quintessential example of an “establishment of religion” was the use of public funds to support religious groups. In fact, that opposition appears to have been aimed narrowly at taxes earmarked for churches and clergy salaries.

Although the implications of the practice, which was undoubtedly culturally chauvinistic, must be translated for a constitutional regime that prizes neutrality and voluntariness, this Article argues that the partnerships support the trajectory of the Court’s funding jurisprudence, with implications for Espinoza v. Montana Department of Revenue, currently pending before the U.S. Supreme Court.


Jeffrey Toobin's Abortion Prediction
Andrew Hyman

CNN’s legal analyst, Jeffrey Toobin, said this 18 months ago: “Anthony Kennedy is retiring.  Abortion will be illegal in twenty states in 18 months.”  This prediction 18 months ago by Toobin has not (yet) come true.  But, from an originalist point of view, it would be great if Toobin’s forecast could ultimately come true.  I emphasize “could” instead of “would” because the original meaning of the Constitution does not require states to do what Toobin fears they would do, and I am not blogging here to support the outcome that Toobin fears.  

We haven’t blogged much about abortion and Roe v. Wade here at the Originalism Blog, although it may well be the central issue in American constitutional law.  In one of our rare mentions of this highly contentious issue, Professor Mike Rappaport said on September 5, 2019 that the U.S. Supreme Court in Planned Parenthood v. Casey “justified its decision to not overturn Roe v. Wade based on stare decisis, but then cut back on the protections the law afforded abortion rights.”  Even though we have not said much more than that about Roe v. Wade this year, we have often discussed the controversial legal doctrines that have been used (or might be used) to justify that decision.  

The primary legal basis of Roe v. Wade is of course the doctrine of substantive due process (SDP), which liberal legal pundits like Toobin would probably despise if it were once again used to attain conservative rather than liberal goals, as happened prior to the New Deal.  SDP was given new life during the 1960s in reliance upon the atrocious precedent of Dred Scott v. Sandford, even though that precedent very probably did not go so far as to employ SDP.   My view has always been that SDP is very probably unconstitutional no matter whether it is used by conservative judges or by liberal judges.  

The SDP doctrine reminds me of a funny scene from one of the great comedic movies of all time (Airplane) in which a long line of passengers uses a variety of different techniques to help another panicked passenger get a grip; someone is always trying to apply one legal theory or another to the Constitution so as to yield desired abortion policy.  If it’s not substantive due process, then it’s the Privileges or Immunities Clause, or the Equal Protection Clause, or the Free Exercise Clause, or the Ninth Amendment, or a fiduciary theory, or the Declaration of Independence, or the Fourth Amendment, or natural law, et cetera.  I have not opposed such theories on the grounds that they would bolster one political result or another, but rather on the grounds that they are unsupported by the original meaning of the Constitution.  Natural law and all of those other things are wonderful, and should always prevail, but unconstrained power to divine natural law was never meant to be a job of the federal judiciary.  As Mark Pulliam correctly stated earlier this year, “the same principles of ‘natural law’ either compel or prohibit abortion rights and gay marriage (to cite just two examples). So much for the Declaration serving as a useful guide to constitutional interpretation!”  

If and when the courts allow non-judges to do more than chat about the million-plus abortions that occur annually in the United States, then there will be many possible policy alternatives to employ, but there is presently no incentive for the “pro-choice” faction to discuss (much less accept) any new compromises. The present situation would quickly change with the overturning of Roe and Casey.  For example, citizens might choose to put the abortion issue entirely in the hands of female voters and legislators, because the issue affects them differently than it affects males (this might or might not require a constitutional amendment).  Or citizens might choose to move the line between lawful and unlawful abortion so that it coincides with the biologically meaningful line between an embryo and fetus, instead of the ever-shifting standard of viability.  Or citizens might apply the prior restraint doctrine, so that abortion is entirely safe for women, who would have to subsequently pay a fine or accept some other disincentive.  Or citizens in a few states might decide that a fetus is simply a worthless blob of cells that warrants no legal protection whatsoever throughout the nine months of pregnancy.  All of these options (except the last one) have no chance of materializing as long as the courts continue to give one faction an advantage, and impose a one-size-fits-all policy on the entire nation, while overlooking that any reliance interests could be easily addressed by delaying the effective date of a court decision modifying abortion precedents (or, equivalently, striking down state legislation on the grounds that it does not delay its effective date).

Seth Barrett Tillman on Robert Goodloe Harper on Impeachment
Michael Ramsey

At The New Reform Club, Seth Barrett Tillman: Representative Robert Goodloe Harper: A House Manager at the Blount Impeachment.  Although a short post, it's hard to summarize.  The issue at the Blount impeachment trial was whether Blount, a Senator, could be impeached (which turned on whether a Senator is a "civil Officer[ ] of the United States" under Article II, Section 4.  Harper argued that Blount was such an officer but Professor Tillman argues otherwise.  And that leads to the conclusion that "officers of the United States" are only appointed -- and so in turn that:

In every day language, the presidency is an officer of the United States, but that is not how that language is used in the Appointments Clause and elsewhere in the Constitution of 1787.


The Wall Street Journal Celebrates Originalist Judges
Michael Ramsey

From the Wall Street Journal editorial board: Revitalizing the Federal Courts.  Here is the introduction: 

President Trump is far from a shoo-in for re-election, but win or lose in 2020 his legacy already includes advancing a new generation of highly professional, constitutional federal judges. Working with the Federalist Society on selecting nominees, and with Mitch McConnell leading a largely unified Republican Senate on confirmations, Mr. Trump is reshaping the judiciary to protect fundamental liberties and the original meaning of the Constitution.

And in conclusion:

A new era of originalism in the courts should be good for the law, and for the public reputation of the judiciary as nonpartisan interpreter of the Constitution. Such an era may even be good for progressives, who will have to win their arguments the old-fashioned way—via political debate and elections.

Two fairly obvious thoughts: it further illustrates the mainstreaming of originalism that the Journal celebrates the new judges specifically as originalist judges.  And whatever one thinks of the campaign to seat specifically originalist judges, the success of that campaign means that originalist arguments will have increasing importance for both lawyers and legal academics -- and so law professors will need to learn how to make (and how to teach people to make) originalist arguments.


Aaron Houck & Claire Teague: Pluralistic Originalism
Michael Ramsey

Aaron Houck (Queens University of Charlotte, Political Science) and Claire Teague (independent) have posted Pluralistic Originalism (34 pages) on SSRN.  Here is the abstract:

Originalism is a method of constitutional interpretation judges use to resolve textual indeterminacy. The dominant strain of originalism argues that proper constitutional meaning comprises the original public meaning of constitutional provisions at the time of their adoption — and that this result is required by a robust theory of democracy. Strong proponents of this view argue that interpretations of constitutional texts that are not faithful to their original meaning are illegitimate. But most of the Constitution’s textual indeterminacies did not emerge over time. Rather, they have existed since the text was drafted. Throughout constitutional history, individuals and groups have publicly argued about the meaning of proposed constitutional provisions — the Constitution itself, the Bill of Rights, and every subsequent successful amendment (along with numerous failed amendments). And additional interpretations could have plausibly been imagined privately by people shut out of public debate for various voluntary or involuntary reasons. The originalist theory of democracy offers no principled rationale or method for privileging one such original public meaning over any other. Thus originalism itself has a problem with indeterminacy. In cases requiring the interpretation of indeterminate constitutional provisions, originalism cannot resolve these textual indeterminacies. This is the problem of original indeterminacy. Recognition of original indeterminacy — what we call “pluralistic originalism” — places contemporary originalists in precisely the same position as the text’s original adopters: a position that acknowledges a range of possible textual interpretations — sometimes a range so wide that it includes inconsistent, even contradictory, interpretations. To resolve cases that turn on such interpretations, judges must look beyond originalism to other interpretative methods and canons of constitutional construction.

Or, judges could acknowledge that faced with irresolvable indeterminacy they have no authority to override the constitutional judgments of the political branches.


Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors
Mike Rappaport

How should the Fourth Amendment’s original meaning be applied to modern technology that was not in existence at the time of the Amendment’s enactment? Many commentators believe this type of question problematic to answer. As Justice Alito quipped some years ago at oral argument, “I think what Justice Scalia wants to know is what James Madison thought about video games.” But in the case of the Fourth Amendment, there is a disciplined way to engage in this inquiry. Here I discuss how the matter should work with respect to two recent cases—Riley v. California (the search of cell phones when a person is arrested) and Kyllo v. U.S. (the use of heat sensors to determine the temperature inside a home—as a means of discovering whether illegal pot is being grown there).

In a prior essay, I noted that the Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Unfortunately, the Supreme Court has followed neither the text nor the original meaning of the Amendment. In Katz v. United States, the Court held that whether a government action constitutes a search depends on whether it interferes with a reasonable expectation of privacy of an individual. But the Amendment does not speak about privacy or define searches by reasonable expectations of privacy.

Instead, the Amendment simply speaks of searches, which had an ordinary meaning at the time of looking “over or through things.” And the covered searches were limited to searches of “persons, houses, papers, and effects.” So whether something is a search is not a matter of reasonableness, but of whether one of those four things is examined.

The text of the Amendment does make reasonableness relevant, but only to something that has already been classified as a search. It is unreasonable searches that are prohibited. And the reason that is referred to here is the reason of the common law. Thus, the Amendment’s prohibition on unreasonable searches simply asks whether such searches were allowable under common law.

In cases where the existing common law did not provide a clear answer, as with new technology, courts must determine the content of the common law right by deciding the case as a common law judge at the time would have—by considering the existing precedents and values at the time.

Let me then apply this approach to Riley and Kyllo.

In Riley, the police arrested Riley and sought to search his cell phone without a warrant under the “search incident to an arrest” exception. Under this exception, the police are allowed to search evidence they uncover when making an arrest without having to get a warrant. While this doctrine would normally cover personal property on the arrested person, the Court held that the doctrine could not be used to search a cell phone. The Court reached this result by invoking modern nonoriginalist precedents and balancing the legitimate government interests with an individual’s privacy interests.

While the Supreme Court applied nonoriginalist precedents, what would an originalist analysis look like? First, it seems clear that the police are attempting to search of an “effect” (since the phone is movable personal property) and thus within the scope of the Fourth Amendment’s protection. The next question is whether the search is a reasonable one. Since the search incident to arrest exception to warrants was part of the common law, originalist analysis suggests that it accords with the Amendment’s original meaning. Searches pursuant to that common law doctrine appear to have been justified on the grounds that the Supreme Court mentioned in Riley—to prevent destruction of evidence and to protect against violence from the person arrested.

The question, then, is how a common law judge at the time would have answered the question whether search of a cell phone fell under the search incident to arrest exception. And while some people will regard this question as unanswerable, I do not. If the reason for the exception (preventing destruction of evidence and protection against violence from the person arrested) is accurate, and if the common law judge understood how cell phones work (which we must assume to answer the question correctly), then I believe there is a strong case that the common law judge would not have extended the search incident to arrest exception to cell phones. Put differently, a common law judge would have recognized that cell phones were quite different than other materials on the suspect’s person and therefore should be treated differently.

The reason is that the values underlying the earlier cases apply differently to cell phones. While preventing destruction of evidence and protecting against violence from the person arrested are important concerns as to traditional property on the person of the arrested individual, they are far less important as to a cell phone. Once the cell phone has been seized (but not searched), the possibility that it could cause harm to the police or that the evidence would be destroyed is quite low.

By contrast, while privacy interests are weakly implicated in the ordinary situation, since there is only a limited amount of information that can be gleaned from non-digital materials on a person, (even from a wallet), privacy interests are strongly implicated by the search of a cell phone, which has an enormous amount of information about a person, including possibly large collections of pictures, videos, text messages, bank information, emails, and personal files.

There is, of course, no certainty that judges at the time would have viewed the matter in this way. It requires us to ask how they would evaluate a type of technology that was completely unknown at the time. But there is little reason to believe that they would have evaluated these basic facts about cell phones any differently than modern judges. If the values identified were the basis of the search incident to arrest exception, as scholars assert, then this does not seem like a problematic judgment.

What is interesting here is that this analysis resembles the Supreme Court’s decision in Riley, even though that decision followed nonoriginalist precedent. This is not an isolated example. One of the things that I have learned over my years as an originalist scholar is that the original meaning of a provision is often closer to the nonoriginalist position than I would have imagined. There is no necessary connection here; it just happens more often than one might expect.

Now, let me turn to the other Supreme Court case, Kyllo v. U.S., where the police used a heat sensor, along with other information, to obtain a warrant. The question is whether aiming the infrared heat sensor at the outside walls of a home amounted to a search of the home. Justice Scalia wrote the opinion, but applied the nonoriginalist Katz reasonable expectations of privacy test. He concluded that individuals had a reasonable expectation of privacy against use of the heat sensors to obtain information from a house.

While Scalia applied a nonoriginalist test, what would the originalist analysis look like? The first question is whether this is a search of a house. If it is search, it is certainly of a house. But is it a search? Here the analysis is a little complicated but in the end seems to suggest there is a search. One possibility is that examining the outside walls of a house is a search because that is “examining” part of the house and that accords with the ordinary meaning of the term at the time. It might be argued, however, that this is not a search because the outside of the house is in public and simply looking at something in public is not a search. But even if one accepts this latter argument, one might still conclude that it is a search because the police are using special equipment to examine the outside of the house. Thus, what they are examining is not open to all people in the public.

The next question, then, is whether the search is unreasonable. One must ask how a common law judge at the time would have decided the case. Since thermal imaging was not employed at the time of the Constitution, one must engage in an independent analysis. Once again, the nonoriginalist arguments used by the majority and dissent seem quite helpful.

That the thermal imaging reveals information that is occurring inside the home seems to strongly indicate that it is an unreasonable search absent a warrant. If a common law judge would have placed strong emphasis on the importance of privacy within the home, which seems quite likely, that is a strong argument for the unreasonableness of the search. There is a moderately strong argument, however, on the other side. The thermal imaging only revealed very rudimentary information about what was occurring inside the house—information about the heat being emitted. While some judges might have used this fact to conclude that the thermal imaging is not unreasonable, my judgement is that it is more likely that a common law judge of the time would view the thermal imaging as being an unreasonable search, since it was an infringement on an area that was traditionally protected.

In the end, this analysis shows that a proper understanding of the Fourth Amendment can accommodate modern technology, even though that technology was not known at the time. The analysis does require a limited common law type reasoning, but that is what the original meaning requires.


John McGinnis on Matthew Franck on Thayer and Originalism
Michael Ramsey

At Law and Liberty, John O. McGnnis:  James Bradley Thayer and Judicial Restraint.  From the introduction: 

One of the most important ongoing debates in constitutional law is the degree of deference that judges should accord legislation in assessing its constitutionality. And the most famous article arguing for deference remains “The Origin and Scope of American Constitutional Law,” written by James Bradley Thayer. Indeed, as suggested by the fact that it is still being discussed 126 years after it was written, it has a strong claim to being the most famous article ever about American constitutional law. Given how important originalism has become in constitutional interpretation, it is not surprising that today that scholars, including my Northwestern colleague Steven Calabresi, are evaluating whether Thayer’s renowned article reflects an originalist view.

Matthew Franck, one of the most sophisticated advocates of judicial restraint, has made the case for this article’s originalism in a fascinating American Political Thought essay, “James Bradley Thayer and the Presumption of Constitutionality: A Strange Posthumous Career.” He argues that Thayer’s claims have been unfairly distorted by subsequent scholars, particularly those who favor judicial engagement—the opposite of deference. While there is much that is extremely valuable in the article, I do not believe it succeeds in defending Thayer’s article as originalist.

There are at least four reasons not to count Thayer in the originalist camp: First, some of Thayer’s key arguments are consequentialist, not interpretive. Second, Thayer does not investigate fully what the founders thought about judicial review, and that allows him to exaggerate deference into a “beyond a reasonable doubt standard” which exceeds that which can be fairly gleaned from the record. Third, without providing any support in the Founding, Thayer argues that judges should be more deferential to federal than state legislation. Finally, Thayer assumes that much of the Constitution is unclear. As a result, there is a lot of room for deference to operate. But here he follows a jurisprudential understanding that developed after the Founding.


Rob Natelson on the North Carolina Ratification Convention
Michael Ramsey

At the Independence Institute, Rob Natelson:  New information on the Constitution’s ratification—Part IV North Carolina.  From the introduction:

The editors of the Documentary History of the Ratification of the Constitution recently released two volumes of documents covering the Constitution’s ratification in North Carolina—the last state covered in the Documentary History’s series. My earlier updates summarized new findings from volumes covering South CarolinaNew Hampshire, and Vermont. For full understanding, you should read this blog entry in conjunction with those three.

The North Carolina volumes are numbers 30 and 31 of the set. By far their most important lesson pertains to Article V of the Constitution—specifically the convention method of proposing amendments. The documents firmly debunk claims by some commentators that the composition of an amendments convention is unknown, unknowable, and/or must be determined by Congress. Instead, the North Carolina documents amply confirm what the records from other states tell us: an amendments convention is a “convention of the states.” This means it is composed of state delegations of equal voting power in the 300-year tradition of other conventions of the states and conventions of colonies.

And among a number of interesting findings:

*  As in other states, “Commerce” was understood to mean only mercantile trade and a few related subjects and not the entire economy. 30 DH 12, 14; 31 DH 797. Other than copyright laws, federal power was not to extend to regulating the press (or, presumably, other local businesses.) 30 DH 10, 27. Similarly, Congress has no general power to legislate criminal law. 30 DH 427. However, the founding generation recognized that federal regulation of commerce necessarily affects other human activities, such as agriculture and manufactures. 30 DH 56, 244

*  It was recognized that the courts would undertake judicial review to void unconstitutional federal actions. 30 DH 291.

*  The North Carolina volumes further undermine the claim that the Constitution was adopted to protect slavery. Even in a slave state like North Carolina some of the Constitution’s strongest advocates were people who opposed slavery and the slave trade. 30 DH 103, 317, 389, 415. (And on the other side, the Constitution was opposed by many slaveholders.) Even the three-fifths compromise was not entirely pro-Southern—some North Carolinians objected to it because it increased the taxes of slaveholding states. 30 DH 253. Nor was the compromise driven by racism (although, of course, racism provided a justification for slavery). 30 DH 253.

*  The right to keep and bear arms was understood to include “keeping arms for [one’s] own defense.” 30 DH 123.


More on the Unimpeached President
Michael Ramsey

At Volokh Conspiracy, Keith Whittington has a great post on the meaning of impeachment:  When Is an Officer Impeached? But I draw the opposite conclusion from his evidence.  It turns out to be a question of methodology.

First, he confirms Andrew Hyman's argument that the original meaning of impeachment was to bring a formal accusation -- in the case of the U.S. Constitution, for the House to bring a formal accusation to the Senate.

When the House contemplated its first impeachment, of Senator William Blount in 1797, there was a fair amount of uncertainty about how it should do it. Legislators looked to the English Parliament to try to figure out how the process worked and did their best to follow along.

Notably, that meant passing a resolution in the House designating someone to walk over to the Senate and impeach Senator Blount. The Senate Journal records that a message had been received from the House to be delivered by Representative Samuel Sitgreaves, to wit:

Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.

The House had commanded Sitgreaves to go to the Senate and impeach Blount. Once that was done, then the Senate could send notice to Blount that he had been impeached and could prepare for trial. The House would draft and exhibit in the Senate articles of impeachment later.

This was the form that the House used to impeach officers all through the nineteenth century. The form was the same when the House impeached judges, a justice, a cabinet member, and a president. In 1904, the Senate sergeant-at-arms announced the presence of a member of the House who

In obedience to the order of the House of Representatives we appear before you, and in the name of the House of Representatives and of all the people of the United States of America we do impeach Charles Swayne, Judge of the district court of the United States for the northern district of Florida, of high crimes and misdemeanors.

But he goes on to note that in the early 20th century the House changed forms and began describing the adoption of articles of impeachment as the impeachment.

In 1912, the Senate Journal records a rather different message from the House. At that time, the House instructed its chief clerk to send a written message to the Senate which was then entered into the record of the upper chamber. The clerk was "directed to communicate to the Senate"

Resolved, That a message be sent to the Senate to inform them that this House has impeached, for high crimes and misdemeanors, Robert W. Archbald, circuit judge of the United States.

The Senate was merely notified that the House had already impeached Judge Archbald and informed that a set of named managers had been appointed to exhibit before the Senate articles of impeachment. Subsequently the House likewise adopted resolutions specifying that an officer "is impeached," as it did with President Bill Clinton in 1998, and then sent a written message to the Senate informing the upper chamber that an impeachment had occurred and demanding that the Senate convict and remove the officer in question.

From this he concludes that ("[p]robably") the constitutional meaning has changed so that a President is now impeached by the House vote, even though previously a President was only impeached by delivery of the articles to the Senate.

That seems wrong to me, though, as a matter of constitutional interpretation.  If the Constitution means what it meant when it was adopted, the House cannot change its meaning.  "Impeachment" had a particular meaning, which persists regardless of what the House may later choose to call things.  Otherwise, the House (or any other branch of government, including the President) can amend the Constitution merely by calling things by different names.  Put another way, the House can call anything "impeachment" that it chooses, but "impeachment" for constitutional purposes remains what the founding generation understood it to mean: bringing an accusation to the Senate.

One might say it's an academic question.  But in fact there are practical consequences, as suggested in point #4 of this post.  If impeachment occurs only upon delivery of the accusation to the Senate, then the Senate cannot begin an impeachment trial until the accusation is delivered.  The Senate has sole power to try impeachments, but that power isn't triggered until an impeachment occurs.  If Professor Whittington is right that the constitutional meaning has been changed by practice, though, that conclusion no longer holds.  If impeachment occurs upon the House's adoption of articles of impeachment, then the Senate's power to try the impeachment is triggered at that point, and the Senate can (constitutionally) proceed with the trial, whether or not the articles are delivered.  The Senate has no constitutional obligation to wait for the House to do anything further (though of course it might choose to do so out of courtesy).

In sum, the House can't have it both ways.  It cannot both declare an impeachment and prevent the Senate from proceeding with a trial.  Either  there is no impeachment (and so no trial) until the articles of impeachment are delivered, or there is an impeachment and the trial may proceed.

And this makes perfect constitutional sense.  There is no reason to allow the House to impeach a President but deny the Senate the ability to hold a trial.