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Don’t Embrace Originalism to Defend Trump’s Impeachment

Liberal legal scholars are at risk of falling into a right-wing trap.

Drew Angerer/Getty Images

In the pending congressional impeachment inquiry, the House Judiciary Committee is charged with (among other things) taking up the question of what the constitutional process of impeachment means. To aid them in this solemn task, committee Chairman Jerry Nadler and his colleagues on Wednesday summoned an impressive list of constitutional scholars to offer authoritative interpretations of the Constitution’s impeachment clauses.

Meanwhile, outside the Longworth Building, where Nadler’s committee has been convening, an equally vigorous campaign is being waged to shape how the public understands the role impeachment plays in our constitutional system. Making sense of our eighteenth-century Constitution in our twenty-first-century world poses a number of challenges, so it’s not all that surprising that in the rush to make a complex issue fit into our head-spinning and vertigo-inducing news cycles, some simplification and distortion is inevitable. Still, it’s worth pausing to ask a more basic question: How should the Constitution’s provisions on impeachment be interpreted?

The present debate over Donald Trump’s impeachment has largely been framed in originalist terms. But for all of this doctrine’s supposed appeal as a settled form of legal interpretation, it would be prudent to recognize that originalism now comes in about as many flavors as the Ben and Jerry’s product line. The dominant model, for the moment, is what’s known as public meaning originalism. Champions of this approach contend that the goal of interpreting the Constitution is to identify what a competent and reasonably well-informed speaker of American English in 1788 would have thought the words of the text meant. For Republicans and many movement conservatives, public meaning originalism is the default mode of inquiry for virtually every constitutional question. The Federalist Society, the influential right-wing legal group that now effectively issues the union card for entry into right-wing politics and law, has made public meaning originalism its unofficial philosophy, arguing in essence that originalism is not simply the best, but is indeed the only legitimate mode of interpreting the Constitution.

For liberals, embracing originalism is a more fraught enterprise. To be sure, there are some prominent originalists of left and liberal sympathies, such as Akhil Amar and Jack Balkin, who have created a small originalist oasis at Yale Law School. Seeking such an originalist refuge, even one housed in the gothic nobility found in New Haven, poses numerous dangers of its own. Several right-wing originalists, sensing a possible effort at a hostile takeover of their pet theory, have charged the left with an opportunistic turn to originalist arguments when it suits their preferred outcomes—including, yes, impeachment.

So what are we to make of originalist arguments on behalf of Trump’s impeachment? History ought to be relevant to liberal constitutionalism, but that is not the same as embracing originalism. Anglo-American law has always taken history seriously, and starting with history in constitutional inquiry does not mean that all inquiry ends with history.

Part of the larger problem here is a political one: namely, that left-leaning legal scholars have let originalists set the terms of constitutional debate for far too long. In constitutional theory, it’s now commonplace to define originalism in opposition to the liberal notion of the living Constitution—i.e., a legal document that responds in line with shifting historical conditions, and whose meaning was not carved permanently in stone like the Ten Commandments presented to Charlton Heston in the Hollywood epic of the same name. Yet even the most ardent champions of a living Constitution do not argue that the original text and meaning of the Constitution are irrelevant; rather, supporters of this alternative theory have always maintained that the concepts articulated in the Constitution must be applied in light of changing facts about American life. If one looks at the opinions of the great champion of the theory of the living Constitution, Justice William Brennan, it turns out that he quoted Founding-era sources almost as often as the leading originalist on the Supreme Court during much of his tenure, Chief Justice William Rehnquist. Similarly, the eminent legal theorist Ronald Dworkin, typically seen as the arch-anti-originalist, also argued that constitutional interpretation ought to start with the original meaning of the text. Toward the end of his career, Dworkin cast his project in expressly originalist terms, arguing that the goal of constitutional interpretation was to identify the principle enacted by the text. Significantly, though, Dworkin believed that the application of that principle would change over time—as had also been the case for Brennan. To illustrate this point, consider the question of cruel and unusual punishment, forbidden under the Fourth Amendment. Only the most literal-minded originalists would claim that all the punishments dealt out under eighteenth-century law would be legal today. Few today would argue that, say, flogging would be constitutional. (It’s worth noting that the late Justice Antonin Scalia—one of the most ardent originalists on the high court—seemed to vacillate on the constitutionality of flogging. )

Another problem with originalism’s approach to history is its static (which is to say, decidedly ahistorical) view of the past. American legal and constitutional history did not pause in freeze-frame when the Constitution was ratified in 1788. And constitutional meaning has likewise not remained frozen over the course of American history, a point that the Founding generation well understood. Even James Madison came to recognize that constitutional meaning would evolve, both through the decision of the courts and through actions taken by the people themselves beyond the formal jurisdiction of the courts. In the 1790s, Madison vigorously opposed Alexander Hamilton’s belief that the Constitution allowed the federal government to charter a bank, but by the era of the War of 1812 he had come to realize that such an institution was a necessity—and all branches of the federal government and the American people had also embraced the federally chartered financial system in a host of ways by then.

Finally, in contrast to originalists, liberal legal scholars need to recognize that interpreting the Constitution inevitably requires some form of translation—taking concepts rooted in the realities of the eighteenth century and trying to make sense of them in our own. Perhaps the best way to illustrate the importance of translation to the entire enterprise of constitutional interpretation is to look at a claim made by the ranking Republican member of the House Intelligence Committee, Devin Nunes, during that committee’s impeachment inquiry last month. Nunes claimed that Trump’s efforts to use Rudolph Giuliani to conduct a shadow foreign policy in Ukraine were no different from George Washington’s decision to dispatch John Jay to negotiate a treaty with Great Britain in the 1790s.

In his flat-footed historical analogy, Nunes suggested that his House Democratic colleagues likely would have impeached Washington for dispatching Jay. Of course, any comparison between Giuliani and Jay is preposterous on multiple levels. Jay was a co-author of The Federalist, chief justice of the Supreme Court, and had extensive diplomatic experience, notably stemming from his tenure as the secretary of foreign affairs under the Articles of Confederation. He was not only one of the most distinguished lawyers of the Founding generation but was one of the most experienced diplomats in the new nation. Moreover, at the time that Washington turned to Jay to negotiate a treaty, there was nothing even remotely resembling the modern State Department. The original State Department consisted of six employees. (By 1824, the department’s staff had more than doubled, to a size of 13.) The geopolitics of the Jay overture were also strikingly different from those of the Ukraine affair: Jay was then negotiating for America from a position of weakness with the most powerful nation on earth. In 2019, America was the most powerful nation on earth, and Ukraine was in a position much weaker than America was at the time of the Jay treaty. Finally, and most importantly, Jay was advancing American interests and acting as an official representative of the American nation; he was not a private actor furthering Washington’s personal interests (and his own).

Moreover, if Nunes had dug deeper, he would have learned that many Americans did demand that Washington face impeachment. (Effigies of Jay were burned in cities across the new nation, a fate that Giuliani has thus far avoided.) Washington rebuffed demands from the House of Representatives that he turn over documents related to Jay’s instruction: Indeed, Washington’s decision laid the groundwork for the idea of executive privilege that the Trump administration has repeatedly asserted over the course of today’s impeachment proceedings. (The concept of executive privilege claims no originalist pedigree to speak of. It appears nowhere in the text of the Constitution and can’t be sanctioned by a strict originalist theory of interpretation.) Yet once he’d asserted this privilege, Washington himself expressly conceded that if Congress requested such materials in the context of an impeachment inquiry, he would have to produce them. Thus, a genuine examination of the relevant history here not only undermines Nunes’s facile analogy, but also sets up the foundation for another impeachable offense. The refusal of the Trump administration to turn over documents critical to the House’s impeachment inquiry is itself an example of a high crime and misdemeanor and hence an impeachable offense.

Finally, liberal supporters of Trump’s impeachment need to keep the bigger historical picture in view at all times. The Constitution’s impeachment clause was designed to check abuses of power, especially those undertaken by a demagogue engaged in types of rabble-rousing that the Founders feared would undermine the republic. Steeped in the lessons of Roman history, the Founding generation shared a pronounced (and in many ways, a healthy) suspicion of simple democracy. In some ways, this dimension of impeachment as a remedy to the tendencies of democracy to lapse into tyranny poses the greatest rhetorical and theoretical problem for liberal constitutionalists. Impeachment is not designed to be democracy-enhancing, but is rather a power-checking mechanism. Impeachment exists for precisely those cases in which a powerful demagogue has bent inferior politicians to his will and wrapped himself in a false patina of democratic legitimacy.

Originalist John Yoo—the former Bush legal adviser who drafted the memorandum justifying the use of torture—and other like-minded originalists have argued that Trump’s fate ought to be left to the electorate in 2020. Yoo’s claims underscore the intellectual dishonesty of much originalist argument on impeachment. The original Constitution created the electoral college precisely because the Founders did not wish to entrust the election of the president to the people—an argument that Trump’s defenders are quick to cite approvingly anytime they’re reminded that Hillary Clinton carried the popular vote by a margin of more than three million in 2016. The claim that the Founders would have wanted a direct election to decide the issue of removal from office is ludicrous. Impeachment was designed to check cases involving the executive branch’s violation of the Constitution. In America’s constitutional order, the supreme voice of the people is embodied in the Constitution, not the ballot box—a lesson from the Founding era that Yoo and Senate Republicans seem to have either forgotten or never bothered to learn.

What’s more, Yoo’s intellectual sleight of hand partly obscures another important and urgent truth: The Founding generation feared that America might be drawn into European affairs and that foreign powers might try to influence American politics. Indeed, as Stanford law professor Pamela Karlan reminded the Judiciary Committee, the office of the president is the only one listed in the Constitution that imposes a requirement of being a natural born citizen. The danger of foreign interference in American internal affairs was so great that the Founding generation hard-wired this additional protection against foreign interference into the structure of the Constitution. The Founders were acutely aware of the fragility of popular governments. Corruption was a pervasive fear of the Founding generation, and impeachment was the tool provided to deal with the potential threat a rogue president might pose to constitutional government.

So how should liberal constitutionalists move forward in the impeachment debate? As Congress and the nation at large deliberate over the prospect of Trump’s impeachment, the Founders will be quoted, misquoted, and generally invoked in ways both novel and disturbing. First, we need to embrace the relevance of our constitutional history, not shy away from it. History has always been integral to interpreting American constitutional law. At the same time, though, we need to call out the pseudo-historical claims that so many originalists peddle as settled questions of law and history. In other words, we need to combat the spurious and politically weaponized doctrine that now goes by the name of originalism. Instead, we need to interpret the Constitution—and the constitutional mandate of impeachment—faithfully, which is far differently from the approach developed under the simplistic, literal-minded, and historically dubious model advanced by many originalists.