Constitutional Fetishism and the Clinton Impeachment Debate
Author(s): Michael J. Klarman
Source: Virginia Law Review, Vol. 85, No. 4 (May, 1999), pp. 631-659
Published by: Virginia Law Review
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ESSAY
CONS'I'TUTIONAL FETISHISM AND THE CLINTON
IMPEACHMENT DEBATE
Michael J. Klarman*
T HE United Stateshas just completedan extraordinarydebate
over the impeachmentand removalfromoffice of its President.
A large proportionof that debatewas conductedin constitutional
terms. This is an opportunemomentto reflect upon the episode
and whatit revealsaboutthe natureof constitutionalinterpretation
andthe functionof constitutionalrhetoricin politicaldebate.
One strikingfeature of the impeachmentdebate was the certitude with whichpoliticiansand academicsespouseda wide variety
of constitutionalinterpretations,notwithstandingthe thinness of
the constitutionallaw governing impeachment. Extraordinary
claimswere made on both sides of the aisle aboutwhatthe United
States Constitutionrequiresand prohibitsregardingvarious impeachmentissues about which the traditionalsourcesof constitutional law-text, original intent, and precedent-rather plainly
have little to say. After showingthat the Constitutiondoes not resolve most of the disputedissues raised duringthe Clinton impeachment, this Essay will consider the consequences of
conductinga transparently
politicaldebatein constitutionalterms.
The constitutionaltext says surprisinglylittle about impeachment. Article II, ? 4 providesthat "ThePresident,Vice President
and all civil Officersof the United States,shall be removedfrom
Office on Impeachmentfor, and Convictionof, Treason,Bribery,
or other high Crimesand Misdemeanors."'
Article I providesthat
the House of Representatives"shallhave the sole Power of Im* James Monroe Professor of Law and F. Palmer Weber Research Professor of
Civil Liberties and Human Rights, University of Virginia School of Law. I have
benefited from the commentsof Michael Gerhardt,Daryl Levinson, Mike McConnell, Larry Sager, Mike Seidman, David Strauss,Bill Stuntz, and Mark Tushnet.
Thanksto Jay Careyand CeceliaWalthallfor able and timelyresearchassistance.
1U.S. Const.art. II, ? 4.
631
632
VirginiaLaw Review
[Vol. 85:631
and that the Senate "shallhave the sole Powerto try
peachment"2
all Impeachments."3
The ChiefJusticepresidesover the President's
impeachmenttrial.4 Finally,"Judgmentin Cases of Impeachment
shallnot extendfurtherthanto removalfrom Office, and disqualificationto hold andenjoyany Officeof honor,Trustor Profitunder
the United States:but the Partyconvictedshall neverthelessbe liable and subjectto Indictment,Trial,Judgment,and Punishment,
accordingto Law."5The text does not resolvethe permissibilityof
alternativesto removalfrom office, such as censureor findingsof
fact. It saysnothingaboutwhetherthe Senateis requiredto hold a
trial wheneverthe House impeachesor what that trial must look
like if thereis to be one. It also is silenton the questionof whether
a lame-ducksession of Congressmay impeach or whether impeachment and convictionmust occur within a single Congress.
Finally,the text fails to illuminatethe standardfor impeachableoffenses beyond the spare descriptionof "high crimes and misdemeanors." It is not clear from the text, for example,whetheran
indictableoffenseis necessaryfor impeachment.
Notwithstandingthe sparsenessof the text, politiciansand pundits propoundedwith great confidencea varietyof claimsregarding what the Constitutionrequiredor forbadein connectionwith
the Clintonimpeachment. I shall brieflyconsiderhere severalof
the more prominentexamples. One esteemed liberalcommentator, Professor Bruce Ackerman, argued that the Constitution
frowns upon impeachmentsby a lame-ducksession of Congress.6
The basis for this claim was the TwentiethAmendment,which
Id. art. I, ? 2, cl. 5.
3 Id. ? 3, cl. 6.
2
4
See id.
4
See id.
5 Id. cl. 7.
See ImpeachmentInquiry:William Jefferson Clinton, President of the United
States:Presentationon Behalf of the President:HearingBefore the House Comm.on
the Judiciary,105thCong. 37 (1998) [hereinafterImpeachmentInquiry]
(testimonyof
Bruce Ackerman); Bruce Ackerman, The Case Against Lameduck Impeachment
(1999) [hereinafterAckerman,Case Against LameduckImpeachment];Bruce Ackerman, Lame-DuckImpeachment?Not So Fast, N.Y. Times, Dec. 8, 1998, at A27;
see also GarrettEpps, A ConstitutionalFix that Needs Fixing,Wash. Post, Dec. 27,
1998,at C4 (notingthat Ackerman'slame-duckargument"hasmerit").
6
1999]
ConstitutionalFetishismand Impeachment
633
shortensthe terms of lame-duckPresidentsand Congresses.7Yet
that amendmentsays absolutelynothingabout limitingthe constitutionalpowers of lame ducks. Perhapsit is unwise policy for a
lame-duck Congress or President to make importantdecisions.
It is hardto believe sucha contentioncould
But unconstitutional?8
have persuadedthose who believed, on the merits,that President
WilliamJeffersonClintonshouldhavebeen removedfromoffice.
Recognizingthe implausibilityof the lame-duckargumentas a
matterof constitutionalinterpretation,ProfessorAckermanpiggybackedit on the claimthat impeachmentis like legislation:It must
be initiatedand concludedwithina single Congress.9It is a wellestablishedrule, thoughnot one plainlyderivablefrom the constitutional text, that legislativebills die with the end of a congressional term, and thus must be reenactedby both houses of a new
Congressbefore they can become law. Combiningthe Twentieth
Amendment's penumbral aversion to lame-duck exertions of
powerwith the generalrequirementthat the House and Senateact
within the same Congress,ProfessorAckermanargued that the
Senate could try the Presidentonly if the 106thHouse, convening
in January1999, first reimpeachedhim.'0 The White House iniU.S. Const.amend.XX, ?? 1-2.
Ackermanmakes a strongcase that supportersof the TwentiethAmendmentbelieved that it would eliminatelame-ducksessions of Congress,barringextraordinary
circumstances.See Ackerman,Case Against LameduckImpeachment,supranote 6,
at 24-31. He also makes the importantpoint that they explicitlyintended to end the
lame-duckHouse's role in selecting Presidentswhen the electoral college failed to
produce a majorityvictor. See id. at 33-38. But even Ackermanconcedes that it is
one thingfor supportersof the Amendmentnot to contemplatefuturelame-ducksessions and another for the Amendment actually to forbid them. See id. at 30-31.
Thus, Ackermanin the end concedesthat lame-duckimpeachmentsare not unconstitutional,just a bad idea. See id. at 39-40. His constitutionalclaim,on the other hand,
is limited to lame-duckimpeachmentsthat are not acted on by the Senate duringthe
same Congress. See id. at 40-41.
9 See id. at 9-10,31-32.
10See id. Ackermanendeavorsto extricatehimself from a difficult
position with
characteristicingenuity. The logic of his TwentiethAmendmentargumentcondemns
all lame-duck sessions of Congress,not just lame-duckimpeachments. Obviously
Ackerman does not wish to challenge this widely accepted a practice. Similarly,
Ackerman's argumentagainst separate Congressesimpeachingand convicting the
Presidentwould seem applicableeven to non-lame-duckimpeachments.But this interpretationwould require Ackerman to reject the constitutionalityof three prior
Senate impeachmenttrials,whichis more of a load than he wishes to carry. Acker7
8
634
Virginia Law Review
[Vol. 85:631
tially consideredendorsingthis constitutionalargument.1The difficultywith it is that impeachmentby the House can be seen as an
act completein itself in a way that one house'spassageof legislation cannot be. Under British practice,which was followed by
Thomas Jefferson in his influential Manual of ParliamentaryPrac-
tice, 2impeachmentscarriedover fromone Parliamentto the next,
unlikeordinarylegislativebills.'3Indeed,three of the Senate'sprevious fourteenimpeachmenttrialsinvolved"carryover"impeachments.14 The "same Congress" argument thus is no more
persuasivethan the lame-duckcontention;neitherhas any support
in the constitutionaltext.
man thus combines the lame-duckpoint with the "sameCongress"argument,yielding a constitutionalrule that has the virtue of coheringwith existing practice:After
the TwentiethAmendment,lame-duckimpeachmentslose theirforce with the end of
a Congress. Yet by strugglingso mightilyto cohere his rule with existing practice,
Ackerman unintentionallyweakens its constitutionalfoundations. It seems more
plausible to argue, for example, that the Twentieth Amendment forbids all lameduck sessions of Congress,as many of its supportersseemed to contemplate,than
that it forbidsonly lame-duckimpeachments,whichis a subjectto which not one of
them apparentlygave any thought. See id. at 39-40. Ackerman'srule also has the
anomalouseffect of legitimizinga lame-duckSenate conviction-a result that should
give Ackermanpause in light of his aversionto lame-duckexercisesof power.
1 See Peter Baker, White House Lays Groundfor a Lame-DuckDefense, Wash.
Post, Dec. 9, 1998, at A16; Ruth Marcus& Helen Dewar, ClintonTeam Considers
Legal FightAgainstTrial,Wash.Post, Dec. 21, 1998,at Al.
12
ThomasJefferson,Jefferson'sManualof ParliamentaryPractice? 620 (1801), reprintedin Constitution,Jefferson'sManual,and Rules of the House of Representatives
of the United States,H.R. Doc. No. 104-272,at 115(1997).
13See id. at 313. Ackermanconcedes that this was the British
practice,but denies
that Jefferson plainly intended to incorporateit into Americancongressionalpractice. See Ackerman,Case AgainstLameduckImpeachment,supranote 6, at 47-51.
14
See Ackerman,Case Against LameduckImpeachment,supra note 6, at 42-66.
Ackermanseeks to distinguisheach of the prior carryoverimpeachments,though it
seems doubtfulthat criticsof his argumentwould be convinced. For example,Ackermannotes that duringthe JudgeAlcee Hastingsimpeachmentin 1988,it was Judge
Hastingshimself who asked for the delay in his Senate trial that resultedin its postponement until the next Congress. See id. at 43-44. Ackermandoes not explainhow
an individualwaiver can cleanse an otherwise unconstitutionalstructuralarrangement. Likewise,Ackermanarguesthat the new House's reappointmentof managers
for the impeachmenttrialof JudgeHaroldLouderbackin 1933indicatesa perception
of constitutionaldoubts regardingcarryoverimpeachments. See id. at 60-61. One
might conclude, however, that preciselythe opposite inference is more plausible:If
the House did reappointmanagersfor JudgeLouderback'strialbut did not bother to
reimpeachhim, this would seem to indicate supportfor the constitutionalityof carryoverimpeachments.
1999]
ConstitutionalFetishismand Impeachment
635
On the other side of the aisle, the Republicans'principalconstitutional argumentswere every bit as unpersuasive. Some impeachment proponents claimed that the Constitution denied
Congressthe discretionnot to impeach the Presidentif he was
found to have committedhigh crimesand misdemeanors.5This is
hard to fathom. The relevant constitutionaltext provides that
"ThePresident... shallbe removedfrom Office on Impeachment
This
for, and Convictionof,... high Crimesand Misdemeanors."'6
languageseems to suggestthat a convictionrequiresremovalfrom
office; it does not indicatethat the House lacks discretionnot to
impeachif a highcrimeor misdemeanorhas been committed. Nor
is it obviouswhy,as a policymatter,one wouldwish to deprivethe
House of discretionin this regard. Prosecutorsordinarilyare
vestedwith enormousdiscretionoverwhichcrimesto prosecute.
Equallystrainedwas the argumentadvancedby numerousRepublicanSenatorsthat once the House impeachedthe President,
the Senate had no choice but to conducta trial on that impeachment.17Article I, ? 6 says that "[t]he Senate shall have the sole
Powerto try all Impeachments."'8
It saysnothingaboutthe Senate
to
conduct
a
trial
wheneverthe House impeaches.
being required
It may be that a properregardfor the judgmentof a coordinate
legislativebranchshouldcounselSenatorsagainstreadilydismissing impeachmentswithouttrial. But does the Constitutionforbid
the Senatefromdoingso if a majoritydeemsthat courseappropriate? Of coursenot. It is unsurprisingthat few if any Democrats
were convincedby this fancifulconstitutionalargument. Nor was
15See, e.g., Jonathan
Turley,The Impeachmentof WilliamJeffersonClinton:The
PresidentResorts to Jury Nullification,Wall St. J., Dec. 16, 1998, at A22. See also
Stephen Barr,House PredictionsVary on Move Against Clinton;Sen. Hatch, '50-50
Chance'of Impeachment,Wash. Post, Nov. 30, 1998, at A4 (statementof Rep. EdwardBryant).
16 U.S.
Const. art. II, ? 4.
See, e.g., Dan Balz & Helen Dewar, Byrd Cites Possibilityof Avoiding Senate
Trial, Wash. Post, Dec. 22, 1998, at Al (statementof Sen. OrrinHatch); Editorial,
Red Queen Trial?, Wall St. J., Jan. 5, 1999, at A22 (noting the view of Sen. Arlen
Specter);Marcus& Dewar, supra note 11, at Al (statementof Sen. Don Nickles).
Othersalso made this argument. See, e.g., AndrewCohen, Fear Not; A Senate Trial
Could Cure the PublicCynicism,Wash.Post, Dec. 27, 1998,at C1;GregoryG. Garre,
The ConstitutionForcesSenate to Try the President,Wall St. J., Jan.5, 1999,at A22.
18 U.S. Const.
art. I, ? 3, cl. 6.
17
636
VirginiaLaw Review
[Vol. 85:631
there any basis for the claim assertedby numerousRepublicans
that the ConstitutionproscribedDemocraticattemptsto terminate
the trial without an up-or-downvote on the articlesof impeachment.'9 The Constitutionsays nothingwhatsoeverabout the Senate's being compelledto carryan impeachmenttrialthroughto its
bitter end, notwithstandingan indisputableshowing on an early
motion to dismissthat the requisitesupermajority
for convictionis
lacking.
One of the most importantconstitutionaldebates surrounding
impeachmentaddressedthe viability of alternativesshort of removal from office. Specifically,voluminousdebate transpiredregardingthe constitutionalityof censureand findingsof fact. It is
difficultto believe that any of these argumentspersuadedanyone,
since the Constitutionsimply does not answer these questions.
Two intersectingconstitutionalprovisionssupplythe relevanttext.
Article I, ? 7 providesthat "Judgmentin Cases of Impeachment
shall not extendfurtherthanto removalfrom Office, and disqualificationto hold andenjoyanyOfficeof honor,Trust,or Profitunder
the United States...."0 ArticleII, ? 4 says that "ThePresident...
shallbe removedfromOfficeon Impeachmentfor, and Conviction
of, Treason,Bribery,or other high Crimesand Misdemeanors."2
The formerprovisionseems to leave open the possibilityof punishmentsthat do not go as far as removalfrom office, such as censure. The latter seems to require removal from office for all
impeachmentconvictions.2Some commentatorshave arguedthat
the best way to reconcilethe two provisionsis to requireremoval
fromofficefor convictionof "Treason,Bribery,or otherhighCrimes
and Misdemeanors"but to allow lesser punishmentsfor lesser of19See, e.g., Helen Dewar, SenatorsEnvisionSwift Clinton
Trial,Wash. Post, Dec.
28, 1998, Al (statementsof Sens. John Ashcroft, Mitch McConnell,and Rick Santorum);Helen Dewar & Peter Baker,Senate Debates Motion to DismissCase, Wash.
Post, Jan. 26, 1999,at Al (statementof House managerHenry Hyde); Eric Pianin&
Helen Dewar, In Senate,DisputesErupton PartyLines,Wash.Post, Jan. 24, 1999,at
Al (statementof Senate MajorityLeaderTrentLott).
20 U.S. Const.art.
I, ? 3, cl. 7 (emphasisadded).
21
Id. art. II, ? 4.
22See, e.g., Eric Pianin & Joan
Biskupic,SenatorsExploringCensure Hit Obstacles, Wash.Post, Jan.28, 1999,at A17 (statementof ProfessorJohnJeffries).
1999]
ConstitutionalFetishismand Impeachment
637
fenses.3 Othershave respondedthat a better reconciliationof the
two clauses treats the first as limitingadditionalpunishmentsbeyond removalratherthan as invitingalternativepunishmentsshort
of removal.24Neithertextualinterpretationseems obviouslysuperiorto the alternative.Moreimportantly,though,the Constitution
plainlysays nothingabout what Congresscan do with regardto a
Presidentwho has not been convictedon an impeachment.2Specifically,the Constitutionis silent on the subjectsof congressional
censureand findingsof fact in the courseof an impeachmenttrial.
One can argue,of course,that because the Constitutiondoes not
specificallyauthorizeCongressto censure the President,it lacks
the powerto do so.26But one mightrespondwithequalplausibility
that because the Constitutiondoes not specificallybar Congress
from censuringthe President,it has the power to do so.27A censure resolutionthat carriesno legal consequencesis plausiblyan
exception to the Article I notion that Congresscan act only via
enumeratedpowers;Congresspasses such resolutionsall of the
time.8
On all of the impeachment-relatedissues just canvassed,the
constitutionaltext provideslittle guidanceand certainlyno clear
answers. Seekingto flesh out this sparetext with evidence of the
3 See Note, The
Scope of the Powerto Impeach,84 Yale L.J. 1316 (1975);Douglas
W. Kmiec,Convict,but Don't Remove, Clinton,Wall St. J., Jan.29, 1999,at A14.
24
See, e.g., Robert H. Bork, Read the Constitution:It's Removalor Nothing,Wall
St. J., Feb. 1, 1999,at A21.
25 See, e.g.,
Gary M. Osen & PatrickMorrisey,Finding of Fact is Constitutional,
Wall St. J., Feb. 1, 1999,at A20.
26See, e.g., 144 Cong. Rec. H12,010 (daily ed. Dec. 19, 1998) (statementof
Cong.
David McIntosh);Guy Gugliotta & Juliet Eilperin,JudiciaryPanel Shows Signs of
PartisanSplit;MembersCondemnClintonBut Differ on Impeachment,Wash. Post,
Sept. 15, 1998, at A8 [hereinafterGugliotta& Eilperin,JudiciaryPanel Shows Signs
of PartisanSplit] (statementof Rep. James Sensenbrenner);CharlesKrauthammer,
The Case for a Two-PartJudgment,Wash.Post, Feb. 2, 1999, at A15; Eric Pianin &
John F. Harris,ManyGOP SenatorsCool to Censure,Wash.Post, Jan. 7, 1999,at A9
(statementof House JudiciaryCommitteeChairmanHenryHyde).
27
See, e.g., 144 Cong. Rec. H11,777-78 (daily ed. Dec. 18, 1998) (statement of
House MinorityLeaderRichardGephardt).
28See, e.g., ChristopherL. Eisgruber& LawrenceG.
Sager, It's Not About Punishment,Wash.Post, Oct. 11, 1998,at C7; BenjaminWittes, Editorial,CongressCan
Censure Anything, Wash. Post, Dec. 2, 1998, at A29; Louis A. Zona, Letter to the
Editor,Censureand the Constitution,Wash.Post, Dec. 16, 1998,at A30.
638
VirginiaLaw Review
[Vol. 85:631
Framers'intent turnsout to be of little assistance. There are several difficultiesthat, taken together,illustratethe pitfallswith an
originalistapproachto constitutionalinterpretation.
First, it is not obvious why the Framers'intent should be any
more dispositivein the impeachmentcontext than in the many
other areasof constitutionalinterpretationwhereit is routinelyignored or discounted. The deadhandobjectionsto an originalist
and they seeminglyare just as applicamethodologyare famous,29
ble in defining "highcrimes and misdemeanors"as in delimiting
Congress'spower to regulate"interstatecommerce"or "freedom
of speech." One hearslittle aboutoriginalintentwhen the United
StatesSupremeCourtis decidingwhetherCongresscan forbidpossessionof firearmsnearschools or regulatesmuton the Internet.31
Moreover,even those conservativeJusticeswho purportto subscribe to an originalistmethodologyare inconsistentin their embraceof originalism.Thus,for example,JusticesAntoninScaliaor
Clarence Thomas cease to speak originalistlanguage when the
subjectis the constitutionalityof affirmativeaction, campaignfinance reform,or regulatorytakings.32Nor are most constitutional
commentatorsoriginalists. For these reasons, it is more than
mildlysurprisingthat most of the debateover defininghigh crimes
29See MichaelJ. Klarman,Antifidelity,70 S. Cal L. Rev.381,383-87(1997)[hereinafter
Klarman,Antifidelity].
30See United States v.
Lopez, 514 U.S. 549 (1995) (invalidatingGun-Free School
Zones Act).
31
See Reno v. ACLU, 521 U.S. 844 (1997) (invalidatingportion of Communications Decency Act).
32
See, e.g., AdarandConstructorsv. Pena, 515 U.S. 200, 239 (1995) (Scalia,J., concurring)(holding affirmativeaction subjectto strictscrutiny);id. at 240 (Thomas,J.,
concurring);ColoradoRepublicanFed. CampaignComm.v. FEC, 518 U.S. 604, 626
(1996) (Kennedy,J., concurring,joined by Rehnquist,CJ., and Scalia,J.) (invalidating
campaignfinance restrictionsunder the First Amendment);id. at 631 (Thomas,J.,
concurring,joined by Rehnquist,CJ., and Scalia,J.); Lucasv. South CarolinaCoastal
Council, 505 U.S. 1003 (1992) (Scalia,J., writingfor the Court) (ruling that certain
regulatorytaking must be compensated). It seems plausibleto assume that the explanationfor this mysteriousabsence of originalistargumentis the fact that the best
historicalaccountsof the Framers'intent in these areas would not justifythe conservative outcomesthese Justicesfavor. See MichaelJ. Klarman,Majoritarian
JudicialReview:The Entrenchment
Problem,85 Geo.LJ. 491,548& n.275(1997)(citingsources).
1999]
Constitutional Fetishism and Impeachment
639
andmisdemeanors,
of whichtherewasa greatdeal,implicitlyassumed
wasthe appropriate
thatoriginalism
interpretive
methodology.33
A great deal about the world has changedsince 1787 that one
mightconsiderrelevantin definingimpeachablebehavior. For example, the Framersof the Constitutiondid not contemplatethe
existenceof politicalparties;4our entire politicalsystemtoday revolves aroundtheir existence. The Framersassumedthat Presidentsgenerallywouldbe "nominated"by the electoralcollege and
then chosenby the House of Representatives;35
this in fact has hapin
twice
the
nation's
1800
and 1824).36The
pened only
history(in
Framersassumedthat Congresswould be the most powerful,and
most feared,branchof the nationalgovernment;37
we live in an era
of the imperialpresidency. The Framersdisparagedpopularparfor two centuriesour politicalsystemhas beticipationin politics;38
33See,
e.g., ImpeachmentInquiry,supra note 6, at 14-15 (testimony of Nicholas
Katzenbach);id. at 20-21 (testimony of Sean Wilentz); Walter Berns, Historians
Springan "OctoberSurprise,"Wall St. J., Nov. 3, 1998, at A22; Gary L. McDowell,
The True History of High Crimesand Misdemeanors,Wall St. J., Jan. 25, 1999, at
A19; Cass Sunstein,A Look at PresidentialPunishments;Impeachment?The Framers Wouldn'tBuy It, Wash.Post, Oct. 4, 1998,at C3.
Professor Turley likewise noted the oddity of the consensus among liberals and
conservativesthat originalismwas the appropriatemethodology for defining high
crimes and misdemeanors. See JonathanTurley, High Crimesand Misdemeanors,
Accordingto the Framers,Wall St. J., Nov. 9, 1998,at A23 [hereinafterTurley,High
Crimesand Misdemeanors];see also CassR. Sunstein,Impeachingthe President,147
U. Pa. L. Rev. 279, 281 (1998) [hereinafterSunstein, Impeachingthe President]
(noting that a "strikingaspect of the debate over impeachmentbetween 1997 and
1999has been its insistentlyoriginalistcharacter").
4 See,
e.g., StanleyElkins & Eric McKitrick,The Age of Federalism263-64 (1993);
JackN. Rakove, OriginalMeanings:Politicsand Ideas in the Makingof the Constitution 268 (1996).
3S See,
e.g., Rakove, supranote 34, at 265;The FederalistNo. 66, at 448 (Alexander
Hamilton) (JacobE. Cooke ed., 1961);TadahisaKuroda,The Originsof the Twelfth
Amendment: The Electoral College in the Early Republic, 1787-1804, at 23-24
(1994).
36See Ackerman,Case
AgainstLameduckImpeachment,
supranote 6, at 34-35 & n.22.
37
See, e.g., The FederalistNo. 48, at 333 (James Madison) (Jacob E. Cooke ed.,
1961);id. No. 51, at 350 (JamesMadison);id. No. 71, at 483-84 (Alexander Hamilton); Rakove, supranote 34, at 281-83.
8 See, e.g., EdmundS. Morgan,Inventingthe People: The Rise of
PopularSovereignty in England and America 260-79, 305 (1988); Rakove, supra note 34, at 139;
Gordon S. Wood, Interestsand Disinterestednessin the Makingof the Constitution,
640
Virginia Law Review
[Vol. 85:631
come increasinglymore inclusiveand populist. These changesare
meant to be illustrative,not exhaustive. All of them seem potentially relevantto what the standardfor presidentialimpeachment
shouldbe. For example,it seems plausiblethat the impeachment
standardshouldvary accordingto whichbranchis more powerful
and thusmoredangerous.
It might be possible, of course, to "translate"the meaning of
high crimesand misdemeanorsto reflect these changesin circumstance.39Thatis, one mightseek to ascertainthe principlesuffusing
the Framers'notion of impeachableoffenses and then calculate
how that principlewouldapplyin the changedcircumstancesof today.40Unfortunately,the translationenterpriseis beset with apparobstacles.41
Forone thing,it seemsimpossibleto
entlyinsurmountable
devise a nonarbitrary
basisfor determiningwhichbackgroundfacts
to treat as variablesin the translationand whichas constants. Yet
if all backgroundfacts are incorporatedinto the translation,the
Framersare simply convertedinto us, thus nullifyingthe quasioriginalistpurpose of the enterprise. Moreover,the question of
what the Framerswould have thoughtin our "translated"circumstances seems completelyindeterminate. For example, many of
the Framershad in mindas the quintessentialimpeachableoffense
the President'sbetrayalof the nation'sintereststo a foreignpower
for a bribe.42For the foundinggeneration,this was a salient concern,but it hardlyseems like a pressingproblemtoday. Yet trying
to figureout what the Framerswouldhave deemed the analogous
paradigmaticimpeachableoffense undertoday'svery differentcircumstancesseems hopeless. Sincewe disagreetodayover whatthe
standardsfor presidentialimpeachmentshouldbe, it seems certain
in Beyond Confederation:Originsof the Constitutionand AmericanNational Identity 69, 72-76 (RichardBeemanet al. eds., 1987).
39 See, e.g., Lawrence
Lessig, Fidelity in Translation,71 Tex. L. Rev. 1165 (1993);
LawrenceLessig,UnderstandingChangedReadings:Fidelityand Theory,47 Stan. L.
Rev. 395 (1995).
40See CharlesMcC. Mathias,
Weigh the Costs, Wash. Post, Dec. 16, 1998, at A31
(explicitlyadvocatingsucha translationof the concept"highcrimesandmisdemeanors").
41
See Klarman,Antifidelity,supranote 29, at 394-412.
42
See, e.g., 2 Recordsof the Federal Convention65 (Madison)(Max Farranded.,
1966) [hereinafterFederal Convention];id. at 68-69 (Morris);The FederalistNo. 66,
at 450 (AlexanderHamilton)(JacobE. Cooke ed., 1961).
1999]
ConstitutionalFetishismand Impeachment
641
that the Framers transplantedinto our present circumstances
wouldhave likewisedisagreed.
Let us now set asidethis deadhandobjectionto originalism.Assume that originalistevidenceis andshouldbe relevantto constitutional interpretation. An additionalset of originalistdifficulties
still remains:ascertainingoriginalintent on issues that were not
confrontedby the Framers,figuringout the collectiveintent when
individualFramersdisagreed,andselectingthe appropriatelevel of
generalityat which to ask the originalistquery. I shall consider
these difficultiesin turn.
On many of the constitutionalissues surroundingthe Clinton
impeachment,there simplyis no originalintentbecausethe Framers did not considerthe matter. Therewas no discussionin Philadelphiaof, and apparentlyno considerationgiven to, subjectssuch
as what the Senate trial of an impeachmentshould look like or
whetheralternativesanctionssuchas censureor findingsof fact are
permissible. Asking what the Framerswould have thoughtabout
these issues had they consideredthem-if that is the correctoriginalistinquiry,whichis debatable-seems obviouslyindeterminate.
How couldone possiblyknow?
The Framersdid discussand voice opinionson the importantissue of impeachmentstandards-the meaningof high crimes and
misdemeanors.43
But here we runinto the difficultyof ascertaining
collective intent when individualsdisagreed. First,it is important
to recognizethat relativelylittle attentionwas paid in Philadelphia
to this questionof impeachmentstandards;therewas far more discussion,for example, of whetherthe Senate was the appropriate
body to try impeachments."Only a relativehandfulof convention
delegates spoke on this (or, for that matter,any other) question.
We have no way of knowingwhethertheirviews were representative of the thirty-ninedelegateswho ultimatelysigned the Constitution on September17, 1787. The recordswe have of the state
43 For a
thorough discussion of the original understandingof the impeachment
standard,see MichaelJ. Gerhardt,The Federal ImpeachmentProcess:A Constitutional and HistoricalAnalysis3-21 (1996).
4 See 2 Federal Convention,supra note 42, at 64-69; The FederalistNos. 65, 66
(AlexanderHamilton);see also Gerhardt,supranote 43, at 5-7; Turley,High Crimes
and Misdemeanors,supranote 33.
642
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ratifying conventions reveal even fewer delegates speaking to the
question of impeachment standards. Thus, historians of impeachment, out of necessity, have lavished great attention on the views
of a literal handful of persons.45 While James Iredell of North
Carolina and James Wilson of Pennsylvania were impressive figures, there is no reason to believe that their interpretations of
"high crimes and misdemeanors" were representative, and they
certainly were entitled to no more weight than anyone else's.
Similarly, Alexander Hamilton's pronouncement on impeachment
standards in the Federalist Papers has received great attention, but
it is questionable how much weight it should bear (even setting
aside the problem that Hamilton's statement is too vague to settle
the Clinton controversy). Hamilton was just one of the Framers,
and he was not even present in Philadelphia when the principal debate on impeachment standards took place. Moreover, given
Hamilton's unorthodox perspective on executive power, it is
doubtful how much weight his views regarding presidential removal should receive. Hamilton thought the President should
serve for life,46and thus it hardly would be surprising if his preferred standard for removal differed from that of the less monarchist delegates in Philadelphia. In sum, examining the fairly sparse
originalist record can, at most, provide a sense of the range of views
held regardingthe impeachmentstandard;it cannot tell us where the
consensus lay, if indeed it is meaningful to speak of a consensus on
an issue that was of relatively minor concern to the draftersand ratifiers and thus garneredrelativelylittle of their attention.
Yet the originalist dilemma grows even more severe. Those
Framers who did voice an opinion on the question of impeachment
standards plainly disagreed among themselves. The Philadelphia
convention had, according to Madison's notes, one lengthy debate
on this subject, and it revealed a variety of conflicting views.47 A
4' See,
e.g., ImpeachmentInquiry,supra note 6, at 14-15 (testimony of Nicholas
Katzenbach);id. at 21 (testimonyof Sean Wilentz);Gerhardt,supranote 43, at 18-19.
46See, e.g., RichardB. Morris,Witnessesat the Creation:Hamilton,Madison,
Jay,
and the Constitution210 (1985);ClintonRossiter,AlexanderHamiltonand the Constitution45-46 (1964).
47 For similarconclusionsas to the
indeterminacyof the originalistrecord,see Gerhardt,supranote 43, at 64-65;Turley,HighCrimesandMisdemeanors,supranote 33.
1999]
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643
couple of delegates opposed any removal of the President except
through elections, worrying that a provision for impeachment
would make the President too dependent on his "judges" in the
Senate.48Other delegates evinced less concern about executive dependency and more about executive malfeasance in office.49 This
latter group ultimately carried the day, though there was disagreement among these delegates as to what the removal standard
should be. A proposal that the impeachment formula include
"maladministration"was rejected as setting too low a threshold
and was replaced by "other high crimes and misdemeanors."50Yet
given disagreement among the Framers as to whether the greater
evil was presidential dependency or malfeasance in office, the
vague standard of high crimes and misdemeanors almost certainly
meant different things to different delegates. Ultimate agreement
on the verbal standard only concealed continued disagreement on
how it should be applied.
Finally, even were it possible to ascertain the collective intent of
the Framers regarding the impeachment standard, the question
would remain at what level of generality the original intent question is appropriately formulated. One possibility would be to ask
the question at the most specific level: Would the Framers have
thought that President Clinton's behavior, described in its loathsome detail, was sufficiently egregious to warranthis removal from
office? But this cannot possibly be the right question. In some
deep sense, the Framers would have been unable to comprehend
such a query. They knew nothing of independent counsels, civil
lawsuits against sitting Presidents, or White House interns. Perhaps more significantly, lying under oath and sex outside of marriage almost surely had different moral connotations for the
Framers. It is entirely plausible, for example, that the Founders
would have deemed adultery or sodomy to be impeachable behavior. Yet even the Republican House managers conceded that
President Clinton's sexual relationship with Monica Lewinsky was
48See 2 Federal Convention,supranote 42, at 64, 66 (CharlesPinckney);id. at 6667 (Rufus King);id. at 103-04 (Gouvereur Morris).
49 See id. at 65
(George Mason);id. at 65-66 (Madison);id. at 66 (ElbridgeGerry);
id. at 67 (EdmundRandolph).
50Id. at 550
(Mason).
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not an impeachableoffense.51Even those most committedto an
originalistinterpretivemethodologyappreciatethe need for some
"translation."Congresshas the power to regulateairplanetravel
whetheror not the Framershad the vision to foresee this technologicaladvance,and PresidentClintoncould not be impeachedfor
adulterywhetheror not the Framersthoughtsuch conductsufficientlyegregious.
So any sensible originalistinquirymust be conductedat some
higher level of generality. One must abstractfrom the most detailed descriptionof PresidentClinton'sbehaviorsome more general characteristicsand then ask what the Framerswould have
thought about that category of conduct. The difficulty here,
though,is that there is no "natural"level of generalityat whichto
conduct the inquiry.52There are an infinite numberof levels of
generalityat whichconductcan be described,and posingthe originalist query at differentlevels may well yield differentanswers.53
For example,it is an equallyaccuratedescriptionof the President's
conductto say that he behavedimmorally,that he lied, that he lied
under oath, that he lied underoath about a sexual affair,that he
lied under oath about a sexual affairthat was not materialto the
proceedingsin whichthe questionwas asked,and so on. None of
these descriptionsis less accuratethanthe others;they simplyproceed at differentlevels of generality.The lowerthe level of generality at whichthe questionis asked,the less relevantthe Framers'
51See, e.g., Peter Baker & Helen Dewar,
Senate, Nation View a Poised Lewinsky,
Wash. Post, Feb. 7, 1999, at Al (quotinga statementof House managerJames Rogan: "Adulterymay be a lot of things,but it is not an impeachableoffense.");see also
144 Cong. Rec. H11,776 (daily ed. Dec. 18, 1998) (statementof Rep. Henry Hyde);
id. at H11,868(statementof Rep. MargeRoukema).
52
See Paul Brest, The FundamentalRights Controversy:The Essential Contradictions of Normative ConstitutionalScholarship,90 Yale L.J. 1063, 1090-92 (1981);
Klarman,Antifidelity, supra note 29, at 408-11; Mark V. Tushnet, Following the
Rules Laid Down: A Critiqueof Interpretivismand Neutral Principles,96 Harv. L.
Rev. 781, 791 (1983).
53The levels of
generalityproblemis preciselythe same as the translationproblem,
though consideredfrom the opposite angle. Specifyinga particularlevel of generality determines which changed circumstancesare relevant to the translation(to be
treated as variables)and which are not (to be treated as constants). Posed either
way, the questionhas no "natural"answer. See Klarman,Antifidelity,supranote 29,
at 408.
1999]
ConstitutionalFetishismand Impeachment
645
answerseems to us today, because so much about the world has
changed. The higherthe level of generality,the less determinate
the Framers'answerbecomes. Who knows whetherthe Framers
wouldhave thought"immoral"behaviorwas impeachable?
For the sake of argument,though,supposewe arbitrarilyselect
an intermediatelevel of generalityat which to ask the question:
Wouldthe Framershave thoughtit an impeachableoffense to "lie
underoath and obstructthe courseof justicein connectionwith a
private matter not involvingabuse of office." While we cannot
know for sure, it seems quite likely that the Framerswould have
disagreedamongthemselves,just as we disagreeamongourselves,
as to whethersuchbehaviorshouldbe impeachable.The examples
of impeachableconductcited by manyFramersinvolvedabuse of
officialpower,such as a Presidentreceivingbribesfrom a foreign
nation to negotiate a treaty unfavorableto Americaninterests.54
PresidentClintonplainlydid not abusehis office in that way. But
other Framersspoke of "abuseor violationof some publictrust,"5
and a bald-faced,finger-wagginglie told to millionsof Americans
on nationaltelevisionarguablywouldqualifyas such.56Thus,to the
extent the Framers'intentionsregardingthe impeachmentstandard
arerelevantandknowable,theyprobablyalsoarecontradictory.
The other conventionalsourceof constitutionalinterpretationprecedent-also turnsout to be of little use in fleshingout the contours of impeachment. Precedentson impeachmentare scarcejust fourteen Senate trials in over 200 years.57And just one of
those previousimpeachmenttrialsinvolveda President. It is perfectly plausiblethat "highcrimesand misdemeanors"shouldmean
differentthingswhen a Presidentand a federaljudge are being im'5 See supranote 42 and accompanyingtext.
55The FederalistNo.
65, at 439 (Hamilton)(Jacob E. Cooke ed., 1961) (emphasis
added); see 2 Joseph Story, Commentarieson the Constitutionof the United States
? 798, at 268-69 (Boston, Hilliard,Gray,& Co. 1883).
6 "I did not have sexual relationswith that woman,Miss Lewinsky."
E.g., John F.
Harris& Dan Balz, Clinton More ForcefullyDenies Having Had Affair or Urging
Lies, Wash.Post, Jan.27, 1998,at Al. Some Senatorsmade preciselythis distinction,
noting that the Presidenthad not abusedhis office but arguablyhad abused the public trust. See 145 Cong. Rec. S1495-96 (daily ed. Feb. 12, 1999) (statementof Sen.
SpencerAbraham);id. at S1600-02(statementof Sen. JosephLieberman).
57See Gerhardt,supranote 43, at 23.
646
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[Vol. 85:631
peached. Arguably,a higherstandardshouldapplyto presidential
impeachments,both because the consequencesof removal seem
greater for the nation and because electoral accountabilityprovides an alternativemechanismfor removal.58Conversely,one
might arguethat becausethe President'sjob is so much more important,transgressionsthat mightbe overlookedin a federalcourt
judge must be noticed and addressedwhen committedby the nation'schief executive.59
Moreover,it is not obviousthat precedentshouldhave the same
bindingeffect on the United StatesSenatesittingas a courtof impeachmentas it supposedlydoes on ordinarycourts. Nobodythinks
that Membersof Congressare bound by "precedent"when engaged in their lawmakingfunctions;one of Congress'sjobs is to
changethe law. If impeachmentis a mixed operationof law and
politics,the appropriaterole of "precedent"is uncertain.
Finally,even courts are free to overturntheir own precedents,
and the United States SupremeCourt frequentlydoes so, especiallyin constitutionalcases.6 A courtthat is free on any given occasionto overruleits own precedents,and has no law-likeformula
definingwhen it is appropriateto do so,61is not in any sense bound
by precedent. Rather, it makes political choices to adhere to
precedenton certainoccasionsand to repudiateit on others. The
Senate likewisehas been, at most, selectivelycommittedto precedent in its conductof impeachmenttrials. For example,for the
first 150 years of Americanconstitutionalhistory,the Senate conductedimpeachmenttrialsbeforethe entirebody. In 1935,as a result of poor attendanceby Senatorsat recentimpeachmenttrialsof
8 See, e.g., Alan Brinkley,Letter to the Editor,ImpeachmentShouldNot be Easy,
Wall St. J., Nov. 19, 1998, at A23; LaurenceH. Tribe, And the Winneris..., N.Y.
Times,Feb. 12, 1999,at A27.
59See, e.g., ChairmanHyde Draws Issues Before the Senate, Wall St. J., Jan. 25,
1999,at A18 (citingcommentsmade by House JudiciaryCommitteeChairmanHenry
Hyde duringPresidentClinton'simpeachmenttrial).
60See, e.g., SeminoleTribev. Florida,517 U.S. 44, 63 (1996);AdarandConstructors
v. Pena, 515 U.S. 200, 231-35 (1995); Payne v. Tennessee, 501 U.S. 808, 834-35
(1991) (Scalia,J., concurring).
61 The Court
purportedto supplysuch a formulain PlannedParenthoodv. Casey,
505 U.S. 833, 866-67 (1992) (pluralityopinion),but to describeit as "law-like"would
be a stretch.
1999]
ConstitutionalFetishismand Impeachment
647
federaljudges,the Senate changedits rules to permita bifurcated
trial process, under which initial fact-findingwas conductedby a
committeeof Senatorswho then made a reportto the entirebody,
whichheard abbreviatedargumentsand then voted. In three impeachmenttrialsof federaljudgesin the 1980s,the Senate implemented this bifurcatedtrial procedure.62If past Senate precedent
were relevantto constitutionalinterpretationsregardingimpeachment, this truncatedtrialformatshouldhave been of dubiousconstitutionality. Yet the Senate concluded otherwise, and the
Supreme Court ruled the matter a nonjusticiablepolitical question,63which may be the same thing as holding it constitutional.
Apparently,then, Senateprecedentis, at most, selectivelyrelevant
to constitutionalinterpretationsregardingimpeachment. This,
however,is just anotherway of sayingthat precedentserves as a
formof justificatoryrhetoric,ratherthanas an actualguideto constitutionalinterpretation.
Nevertheless,both sidesin the Clintonimpeachmentdebatepresented argumentsfrom precedent. Republicanpoliticians and
commentatorsinvokedprecedentin supportof theirclaimthat the
Constitutionprohibitedtruncatingthe Senate trial;all of the Senate'sfourteenpreviousimpeachmenttrialshadbeen carriedthrough
to theirconclusion.64
But how persuasiveis that evidence? In all of
thoseprevioustrials,it seemedlikely-or at leastplausible-that the
votes necessaryfor removalfrom office were attainable. Those
precedentshardlydemonstratethat the Senate lacks discretionto
abbreviatean impeachmenttrialafterthe vote on a motion to dismiss has conclusivelyrevealedthe absenceof the requisitesupermajorityfor conviction.65
Likewise,presidentialcensureis not unprecedented.Those favoringthis sanctionagainstPresidentClintonpointed to the Senate's censureof PresidentAndrewJacksonin 1834for orderinghis
See, e.g., Gerhardt,supranote 43, at 33-35, 43-46.
See Nixon v. United States,506 U.S. 224,226 (1993).
6 See,
e.g., Garre, supra note 17, at A22; Pianin & Dewar, supra note 19, at Al
(statementof Sen. Phil Gramm).
65
The ultimateverdictwas foreordainedat least as early as the vote on the motion
to dismiss,which44 Democratssupported. See Peter Baker & Helen Dewar, Senate
Votes to SubpoenaThree Witnesses,Wash.Post, Jan.28, 1999,at Al.
62
63
648
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[Vol. 85:631
Secretaryof the Treasuryto remove federalgovernmentdeposits
from the nationalbank.6 But Jackson'sdefendersarguedat the
time that censurewas unconstitutional
becauseit was not explicitly
contemplatedby the Constitution,and the censureresolutionwas
rescindedthreeyearslater,once Jackson'ssupportersregainedcontrolof the Senate.67Whatis one to makeof thisprecedent?The fact
that the Senateonce censureda sittingPresidentover strongconstitutionalprotests,and soon changedits mindand rescindedthe censure resolution,hardlyprovesthat this constitutionalpower exists.
But it hardlyproves the opposite either. Moreover,even if one
foundthis precedentcompellingsupportfor the constitutionalityof
censurein the 1830s,150-year-oldprecedentsrarelyare treatedas
dispositivesourcesof constitutionalinterpretation.Circumstances
have changeda greatdeal in the interveningyears;perhapscensure
was constitutionalat one point in time and not at another. Certainlythis has been the case for a wide varietyof contestedsocial
practices-school segregation,seditionlaws, minimumwage laws,
poll taxes, and legislativemalapportionment,
just to mentiona few
prominentexamples.6
Senate findingsof fact, on the other hand,wouldhave been unprecedented.69Yet that hardly proves their unconstitutionality.
Probablythere was no effort to pass findingsof fact in earlierimpeachmenttrialsbecauseit was not obviouson those occasionsthat
the votes necessaryfor convictionwere lacking. Moreover,courts
interpretingthe Constitutionfrequentlyoverruleeven consistent
bodies of precedent. When the SupremeCourtinvalidatedpublic
6 See, e.g., Donald B. Cole, The Presidencyof AndrewJackson205-06 (1993). For
a discussionof effortsby the House to criticizepast Presidents,see Wittes,supranote
28, at A29.
67 See
Cole, supranote 66, at 205, 264-65.
68CompareBrownv. Board of Educ.,347 U.S. 483 (1954), with Gong Lum v. Rice,
275 U.S. 78 (1927) (school segregation);Brandenburgv. Ohio, 395 U.S. 444 (1969)
(per curiam),with Schenckv. United States,249 U.S. 47 (1919) (seditionlaws);West
Coast Hotel Co. v. Parrish,300 U.S. 379 (1937), with Adkins v. Children'sHospital,
261 U.S. 525 (1923)(minimumwagelaws);Harperv. VirginiaBd. of Elections,383 U.S.
663 (1966), with Breedlovev. Suttles,302 U.S. 277 (1937) (poll taxes);Baker v. Carr,
369 U.S. 186 (1962),withColegrovev. Green,328 U.S. 549 (1946)(malapportionment).
69See, e.g., Steve Barr & Ruth Marcus,SearchContinuesfor BipartisanWay Out,
Wash. Post, Feb. 1, 1999, at A10 (statement by Sen. Richard Shelby objecting to
findingsof fact as unprecedented).
1999]
ConstitutionalFetishismand Impeachment
649
school segregationin Brownv. Boardof Education,70
it repudiated
an almost unbroken line of dozens of state and federal court
precedents, including its own.7' The Court has done the same thing
on numerous occasions, including the revolutionarycommerce
clausedecisionsof the early1940s,its rulingsincorporatingvarious
Bill of Rightsprovisionsagainstthe states in the 1960s,and its decisions extendingheightenedscrutinyto sex classificationsin the
1970s.72Clearlythe SupremeCourthas considereditself free to repudiateeven consistentbodiesof precedentin its constitutionalinterpretations. So why should the Senate have been barredfrom
makingfindingsof fact with regardto the President'smisconduct
simplybecausesucha practicewouldhavebeen unprecedented?
The point is that precedentdid not resolve the constitutionality
of censureand findingsof fact anymorethantext or originalintent
did. Thus,unsurprisingly,
the constitutionalargumenton these issues was opportunisticand unpersuasive.Republicanswho wanted
the Presidenttried and convictedarguedthat censurewas unconstitutional.73
Democratswho wantedto avoidimpeachmentby the
House or quicklyto end the Senatetrialendorsedthe constitution70
347 U.S. 483 (1954).
On the near-unanimitywith whichnineteenthcenturycourtssustainedthe constitutionalityof school segregation,see MichaelJ. Klarman,The Plessy Era, 1998 Sup.
Ct. Rev. 303.
72
See, e.g., Wickardv. Filbur, 317 U.S. 111 (1942) (vastly expandingCongress's
Commerce Clause power); Malloy v. Hogan, 378 U.S. 1 (1964) (incorporatingthe
right against self-incriminationunder the Fourteenth Amendment); Frontiero v.
Richardson,411 U.S. 677 (1973) (invalidatingsex discriminationunder the Equal
ProtectionClause). On the revolutionaryCommerceClause decisions of the 1940s,
see Barry Cushman,Rethinkingthe New Deal Court:The Structureof a Constitutional Revolution208-25 (1998). On incorporationof the Bill of Rightsin the 1960s,
see RichardC. Cortner,The SupremeCourtand the SecondBill of Rights:The Fourteenth Amendmentand the Nationalizationof CivilLiberties(1981). On the sex discriminationcases of the 1970s,see Ruth Bader Ginsburg,Sexual Equalityunderthe
Fourteenthand EqualRightsAmendments,1979Wash.U. L.Q. 161.
73
See, e.g., 144 Cong. Rec. H11,776(daily ed. Dec. 18, 1998) (statementof House
JudiciaryCommittee ChairmanHenry Hyde); Gary L. McDowell, How to Censure
Clinton:ImpeachHim, Wall St. J., Nov. 23, 1998, at A22; Eric Pianin,New Speaker
Blocks Censure at His Peril, Wash. Post, Dec. 14, 1998, at A14 (statements of
Speaker-electRobert Livingstonand House MajorityWhip Tom DeLay); Pianin &
Biskupic,supranote 22, at A17; EricPianin& JohnF. Harris,Oppositionto a Censure
BuildsAmong Senate GOP,Wash.Post,Jan.7, 1999,at A9 [hereinafterPianin& Harris,Oppositionto a Censure](statementsof Sens.RobertSmithand CharlesGrassley).
71
650
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[Vol. 85:631
ality of censure.74Late in the Senatetrial,whenit becameobvious
that conviction was unattainable,most Republicans (including
those who earlierhad condemnedcensureas unconstitutional)endorsedfindingsof fact,75while virtuallyall Democratscondemned
them as unconstitutional.76
Once it becameapparentthat findings
of fact could secure no significantDemocraticsupport,and thus
wouldlend credibilityto Democraticchargesof a partisanvendetta
againstthe President,Republicanslost theirenthusiasmfor this alternative,oftenjustifyingtheirchangeof heartin termsof constitutional doubts regardingfindings of fact.77 After the articles of
impeachmentfailed, Republicansblockeda censureresolutionbecause they did not wish to providepoliticalcover for Democrats
who had opposedremoval,thoughtheyjustifiedtheiroppositionto
censurein termsof its unconstitutionality.78
Becausethe Constitution simplydoes not resolve the issues of censureand findingsof
fact, it is hardto believe that mindswere changedby any of these
constitutionalarguments.
74
See, e.g., 144 Cong. Rec. H11,775 (daily ed. Dec. 18, 1998) (statement of Rep.
David Bonior); id. at H11,779 (statement of Rep. MartinFrost); id. (statement of
Rep. Robert Menendez);id. at H11,780 (statement of Rep. Barney Frank);Peter
Baker, SenatorsDivided on Key Issues, Wash. Post, Jan. 11, 1999, at Al; Pianin &
Harris,Oppositionto a Censure,supranote 73, at A9 (statementof Sen. Byron Dorgan noting that most DemocraticSenatorssupportcensure);Editorial,Censureand
the Constitution,Wash. Post, Dec. 16, 1998, at A30; Editorial,ConstitutionalRoom
for Censure,N.Y. Times,Nov. 11, 1998,at A26.
75See, e.g., Barr& Marcus,
supranote 69, at A10; Editorial,Getting Serious,Wall
St. J., Jan. 27, 1999, at A22; Krauthammer,supranote 26, at A15; Osen &
Morrisey,
supra note 25, at A20; Eric Pianin & Guy Gugliotta,"Findingsof Fact" May Spark
Fiercest Battle, Wash. Post, Feb. 4, 1999, at A7 [hereinafterPianin & Gugliotta,
Findingsof Fact].
76
See, e.g., Helen Dewar, DemocratsStep Up Push for Censure,Wash. Post, Feb.
6, 1999,at Al [Dewar,DemocratsStep Up Push for Censure];Helen Dewar & Peter
Baker, PartiesSplit as KeyTrialVotesLoom,Wash.Post,Feb.4, 1999,at Al (statement
of Sen.RobertByrd);Pianin& Gugliotta,Findingsof Fact,supranote 75, at A7.
77See, e.g.,EdwardWalsh,CensureResolutionPuton Indefinite
Hold,Wash.Post,Feb.
13,1999,at A32 (reportingviewsof RepublicanSens.RichardLugarandPhilGramm).
78 See id.
(statementof Sen. RichardLugar);Peter Baker, Senate Acquits Clinton;
Censure Blocked, Wash. Post, Feb. 12, 1999, at Al; Stephen Barr, Senate Support
Builds for Censure,Wash.Post, Feb. 8, 1999,at A8 (statementof Sen. Phil
Gramm).
1999]
ConstitutionalFetishismand Impeachment
651
The combinationof sparsetext, ambiguousoriginalintent, and
scarce precedent of dubiousrelevancemeans that Congresswas
confrontedwith little "law"governingthe Clintonimpeachment.9
When law is this indeterminate,one inevitablyfinds some other
factor-namely politics,broadlydefined-determiningoutcomes.8
Nevertheless,the impeachmentdebate was conductedlargely in
constitutionalterms,and one is entitledto wonderabout the conwhat was, in reality,a thoroughly
sequencesof constitutionalizing
political debate. One possibilityis that there were no significant
consequences.If the variousconstitutionalargumentssurrounding
impeachmentwere as completelyunpersuasiveas I have suggested,
one wondersif they had any effect whatsoever. For example,no
Republicansevidently were convinced by the argumentthat a
lame-ducksession of the House could not impeachthe President,
and no Democratsby the contentionthat the Senatewas constitutionallyobligedto hold a trialonce the House impeached.
While virtuallyall the constitutionalargumentssurroundingimpeachmentwere unpersuasive,they still may have had two deleterious consequences. First, debating impeachmentquestions in
constitutionaltermsenabledpoliticiansto evade responsibilityfor
theiractions. Thishappenedon both sides of the aisle. Democrats
should have concentratedon the argumentthat the President's
transgressionswere not sufficientlyserious to renderthe country
better off by abbreviatinghis term of office. Instead,they mainly
arguedthat the Constitutiondid not permithis removalbecausehis
misdeedsfailed to satisfythe Framers'conceptionof "highcrimes
and misdemeanors."8'
That argumentwas a distraction.Whether
79But cf. Sunstein,Impeachingthe President,supra note 33, at 315
(arguingthat
"[t]ext, history, and long-standingpractice"converge on a very high standardfor
presidentialimpeachment). One potential difficultywith ProfessorSunstein'sconclusionregardingthe clarityof the "law"governingthe impeachmentstandardis that
it seems to imply that the vast majorityof Republicanswho favored Clinton'simpeachmentwere eitherignorantor hypocritical.
80See generally MichaelJ. Klarman,Fidelity, Indeterminacy,and the Problem of
ConstitutionalEvil, 65 FordhamL. Rev. 1739, 1740-44 (1997) [hereinafterKlarman,
Fidelity](discussingthe historicalmalleabilityof the Constitution).
81 See,
e.g., 145 Cong. Rec. S1462-02, S1600-1605 (daily ed. Feb. 12, 1999)
(statement of Sen. Joseph Lieberman);Governmentof Men, Not Angels, Federal
652
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[Vol. 85:631
or not the Framersin 1787wouldhave deemed Clinton'sbehavior
impeachable,he should have been removed from office if most
people in 1999 deemed his conductsufficientlyegregious. Democratsshouldnot have been permittedto avoid confrontingthat issue by pleadingthatthe Framershad resolvedit for them.
Conversely,Republicansshould have stuck with the argument
that the President'sconductwas sufficientlyserious to justify his
removal, rather than contendingthat the Constitutiondeprived
Representativesof discretionnot to impeachhim if he had committedhigh crimesand misdemeanors,that Senatorslackeddiscretion not to try him once the House had impeachedhim, or that
both houses lacked discretionto adopt a lesser sanctionsuch as
censure.The Constitutionforbidsnone of these things,and politicianswho insistedthatit does weresimplyevadingresponsibilityfor
their actions. All that the Constitutionrequiredof Membersof
Congresswas a judgmenton thisstraightforward
question:Werethe
President'smisdeeds,judgednot by an originaliststandardof 1787
but by the standardsof today,sufficientlyseriousto warranthis removalfromoffice?
In answeringthat question,one might be forgivenfor thinking
that the views of the Americanpublic should have been highly
relevant,if not dispositive. It is here that we see the secondinsidious consequenceof the pervasiveconstitutionalization
of the impeachmentdebate. A largecomponentof Americanconstitutional
law is the protectionof minorityrightsand certainbasic structural
safeguardsfrom majoritariantampering. For example, popular
majoritiesare not permitted,simply by virtue of their majority
status,to imposeracialsegregationon publicschoolsor to authorize the federal governmentto exceed its enumeratedpowers.82
Document ClearingHouse, Wash.Post, Dec. 20, 1998, at A42 [hereinafterMen, Not
Angels] (statements by Reps. Gerald Kleczka, John Conyers, Jerrold Nadler, and
David Bonior); Gugliotta& Eilperin,JudiciaryPanel Shows Signs of PartisanSplit,
supranote 26 (statementof Cong.RobertWexler). SenatorRobert Byrd (D-W.Va.)
was the exception that proved the rule, conceding that the President's conduct
amountedto high crimesand misdemeanors,but nonethelessopposingremovalfrom
office as contraryto the best interestsof the nation. See Barr,Senate SupportBuilds
for Censure,supranote 78.
2 See,
e.g., Brownv. Board of Educ., 347 U.S. 483 (1954) (invalidatingschool segregation);United Statesv. Lopez, 514 U.S. 549 (1995) (invalidatingstatuteas beyond
the enumeratedpowersof Congress).
1999]
ConstitutionalFetishismand Impeachment
653
Advocatesof PresidentClinton'simpeachmentandremovaltraded
on this antimajoritarian
aspect of constitutionalism.Claimingthe
moralhigh ground,they invokedthe "minorityrights"conception
of constitutionalismto justifyignoringopinion polls and congressional election results that revealed a substantialmajority of
Americans opposing the President'sremoval from office.83 Yet
sometimesthe Constitutiondoes requirethatwe follow electionreturns. Popularmajoritiesdo get to elect Representativesand Senators, and with the slight complicationof the electoral college,
Presidentsas well. If afterthe 1992presidentialelection,Republicans had triedto block Clinton'sassumptionof office, arguingthat
they were followingthe moralhighgroundby ignoringthe election
returns,their actionsrightlywouldhave been perceivedas revolutionaryratherthanpraiseworthy.Thisis becauseone's entitlement
to hold office in a democraticsystemis based,generallyspeaking,
on majoritysupport.
The pressingquestionin the Clintoncontroversywas whether
impeachmentis more like issues where we protectminorityrights
from majoritarianoppressionor issues where we awardpopular
majoritiesthe fruitsof their electoraltriumphs. By invokingconstitutionalrhetoric,Republicansimplicitlytapped into the antimajoritarianstrand of constitutionallaw-the safeguardingof
minorityrightsfrom majoritarianoppression. It is difficult,however,to fathomwhy impeachmentis an issueuponwhichminorities
warrantprotectionfrom majoritariandecisionmaking.If popular
majoritiesget to elect a President,it is hardto see why they should
be ignoredon the questionof whetherhe remainsfit to hold office.
83See, e.g., Peter Baker & Helen Dewar, Prosecutors
Allege Scheme by Clinton;
House ManagersAsk for Trial Witnessesas ArgumentsBegin, Wash. Post, Jan. 15,
1999, at Al (statementby House ManagerRep. James Rogan);WilliamJ. Bennett,
Editorial,A Day of Justice,Wall St. J., Dec. 18, 1998, at A14 (arguingthat opinion
polls are no more relevant to the impeachmentissue than to the issues of school
prayeror flag burning);Dewar, DemocratsStep Up Push for Censure,supranote 76
(statementof House JudiciaryCommitteeChairmanHenry Hyde); Editorial,Don't
Let the PresidentLie with Impunity,Wall St. J., Dec. 10, 1998, at A22 (discussinga
letter to the House JudiciaryCommitteefrom 96 scholars,lawyers,and formergovernmentofficialswhichargued,in part, that "[i]fwe would not allow polls to silence
unpopularspeech, neither must we allow polls to excuse and ratifyimpeachableoffenses");Men, Not Angels, supranote 81 (statementby Rep. J.C. Watts).
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In a democraticsociety,how can it make sense to removefrom office a popularlyelected Presidentwhose transgressionsare not
deemedsufficientlyseriousto justifyremovalby roughlytwo-thirds
of the electorate?4 Republicansnever offered an argumentfor
why this was a reasonableway to approachimpeachment. Their
use of constitutionalrhetoricenabledthemto avoidexplainingwhy
the public sentimentthat plainlyopposed their objectiveswas irrelevant.8
The constitutionaldebate surroundingimpeachmentconfirms
what we alreadyshouldhave knownaboutconstitutionalinterpretation. On many (perhapsmost) pressingquestionsof social policy, constitutional law-text, original intent, precedent, moral
values,or whateverelse one thinksconstitutionallaw consistsofis relativelyindeterminate.6In light of this legal indeterminacy,it
See, e.g., Dan Balz & ClaudiaDeane, Poll:Most Oppose ContinuingTrial,Wash.
Post, Jan. 31, 1999,at A21 (notingthat only 33% of people polled supportedthe conviction and removalfrom office of PresidentClinton,while 64% believed the Senate
should not convictthe President);WashingtonPost Poll:The Senate Calls Witnesses
(last modified Jan. 31, 1999) <http://www.washingtonpost.com/wp-srv/politics/polls
/vault/stories/data0131999.html> (reportingfairly consistentpoll results from early
December 1998 throughthe end of January1999 showing that nearly two-thirdsof
those interviewedopposedremovalof the Presidentfromoffice).
5 I do not mean to suggest that in all impeachmentcases, the only legitimate
method for Membersof Congressto decide how to vote is to poll their constituents.
Given the vagariesof opinion polling, in a close case this probablywould not be a
sensible way to proceed. But PresidentClinton'swas not a close case, at least not according to public sentiment. Even Republicanopponents of the Presidentdid not
contend that the public favoredimpeachment;they arguedinstead that public opinion was irrelevant. When roughlytwo-thirdsof the electorate favors retainingthe
Presidentin office, it is hard to fathomthe argumentfor why he should be removed,
no matterhow stronglythe oppositionpartyfeels he has transgressed.
Nor does my argumentnecessarilyentail loweringthe thresholdfor impeachment
when the President'sapprovalratingshave bottomed out. Ours is not a parliamentarysystem featuringvotes of no confidenceto remove Executivesbefore expiration
of their elected terms;the virtuesand vices of such a systemare beyond the scope of
this Essay. Our constitutionalsystem requiresthat the Presidentdo somethingseriously wrong,ratherthanjust a bad job, before impeachmentand removalis authorized. This said, I see no reason why in close cases public opinion should not be
relevantto determiningwhetheran unpopularPresident'stransgressionsarise to the
level of highcrimesand misdemeanors.
86For numerousexamples,see Klarman,Fidelity, supranote 80, at 1740-44.
1999]
ConstitutionalFetishismand Impeachment
655
is naturaland perhapsinevitablethat the personalvaluesof the interpreterswill determinelegal outcomes. Constitutionalargument
in such contexts is principallya form of rhetoricdeployed to enhancethe statusof those politicalvalues.87
This is not to say that the Constitutionis alwaysequally indeterminate. One importantconstitutionalfacet of the impeachment
debatewas the unanimitywithwhichboth sides adheredto the explicit textual requirementthat Senate convictionbe by two-thirds
majority. This supermajorityrequirementplainly disadvantaged
Republicanswho quite likely wouldhave removedPresidentClinton from office if only a simplemajorityhad been required.88Yet
thisconstitutionalprovisionwas too plainto be evaded. The importanceof havingunambiguous
groundrulesshouldnot be minimized.
Withouta clearantecedentdecisionruleto governremoval,it likely
wouldhave been impossibleto derivea consensusnormduringthe
impeachmentcontroversy;all participantsin the dispute would
have been too influencedby the knowledgeof the concreteconsequences of the variousdecision rules that might have been proposed. One shuddersto imagine the consequences of such a
scenario:strict party line divisions as to whether a Democratic
Presidentshouldbe removedfrom office by a RepublicanSenate,
and no clear decisionrule to governthe process. Thus,the recent
impeachmentcontroversyconfirmscertainvirtuesboth of constitutional originalism-whichestablishesrules in advanceof the controversiesthey are called upon to resolve89-andof constitutional
clarity-which fostersconsensuseven in the face of strongpartisan
disagreement.0
But, of course,this is just one side of the story;originalismand
clearconstitutionalruleshave obviousvices as well as virtues. For
87See, e.g., Louis MichaelSeidman& MarkV. Tushnet,Remnantsof Belief: ContemporaryConstitutionalIssues (1996).
8 The impeachmentarticle chargingthe Presidentwith obstructionof justice secured 50 votes in the Senate. See, e.g., ModerateGOP SenatorsAlign with Democrats,Wash.Post, Feb. 13, 1999,at A29. It is difficultto believe that a majoritycould
not have been secured had this been sufficientto remove the Presidentfrom office.
See id.
89See, e.g., David A. Strauss, Common Law ConstitutionalInterpretation,63
U. Chi. L. Rev. 877, 906-24 (1996).
90See,
e.g., CassR. Sunstein,ProblemswithRules,83 Cal.L. Rev. 953,972-74 (1995).
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[Vol. 85:631
example,it is exceedinglydifficultin an era of "one person, one
vote" to justifyArticleV's unamendablerequirementthat no state
be deprivedof equal Senate representationwithout its consent.91
Thus, Wyoming today enjoys equal Senate representationwith
California,whichhas sixty-sixtimes the former'spopulation.9Yet
this deadhandrule, devisedby the Philadelphiaconventionsimply
as a politicalinducementto the smallstatesto acquiescein the new
constitutionalregime,93
is too clear to be evaded. We seem stuck
withit, no matterhow ridiculousthe consequences.
Most of the Constitution,of course,is not nearlyso determinate,
as the recent impeachmentcontroversyhas remindedus. The impeachmentstandardof "highcrimesand misdemeanors"is sufficiently indeterminate, and President Clinton's conduct was
sufficientlyserious,but not obviouslyso serious,that Republicans
and Democrats divided almost precisely along partisanlines in
their conclusionsas to whetherthat standardhad been satisfied.
issues-such
Similarly,with regardto other impeachment-related
as the constitutionalityof findingsof fact or the Senate'sdiscretion
to truncatethe trial-constitutionalinterpretationsfollowedpartisan lines with stunningregularity. In the face of legal indeterminacy, it seems natural that political factors will determine
constitutionalinterpretations. Thus, for example, in 1860 both
southernersand northernerswere equallyconvincedthat the Constitutionsupportedtheirconflictingviewson secession,4just as one
hundredyears later they were equallyconfidentthat it supported
their diametricallyopposingviews on the permissibilityof school
segregation.95It is no great surprisethat when the Justicesof the
91
U.S. Const. art. V. On the "stupidity"of this provision,see WilliamN. Eskridge,
Jr.,The One Senator,One Vote Clause,12 Const.Commentary159 (1995).
92See Samuel Issacharoff,JudgingPolitics:The Elusive Quest for JudicialReview
of PoliticalFairness,71 Tex. L. Rev. 1643, 1662-63n.100 (1993) (citingBureauof the
Census,U.S. Dept. of Commerce,StatisticalAbstractof the UnitedStates1992(1992)).
93See, e.g., Rakove, supranote 34, at 66-69.
94See, e.g., Jesse T. Carpenter,The South as a ConsciousMinority1789-1861, at
200-13 (1930);David M. Potter,The ImpendingCrisis1848-1861,at 479-84 (Don E.
Fehrenbachered., 1976).
9 White southernersafter Brown v. Board
of Education,347 U.S. 483 (1954), reaffirmedtheir "relianceon the Constitutionas the fundamentallaw of the land,"while
denouncing the Court's decision as a "clear abuse of judicial power" because the
1999]
Constitutional Fetishism and Impeachment
657
SupremeCourttodaytake up issuesof abortion,affirmativeaction,
minorityvoting districts,school prayer,and federalism,they tend
to divide along predictablepolitical lines.96 The Constitutionis
relativelyindeterminateon these issues; thus it seems inevitable
that politicaldifferenceswill reappearin the guise of constitutional
interpretations.
Many people find this phenomenondisconcerting,perhapsbecause most issues of constitutionalinterpretationinvolve judges
decidingwhetherto invalidatelegislativeor executiveaction. To
the extent constitutionalinterpretationinvolvesjudgessupplanting
the politicaljudgmentsof elected officialswith their own, serious
questions of democraticlegitimacy arise.97 Federal judges are
unelectedand,at most,indirectlyaccountable;moreover,they tend
to reflect the values of the socioeconomicelite from whose ranks
This countermajoritarian
they are drawn.98
difficultyis not present,
when
elected
are
however,
politicians
performingthe constitutional interpretation.Then, the use of constitutionalrhetoricsimply masks political preferences rather than substituting the
preferencesof one set of actors for those of another. Since the
constitutionalrhetoricis transparentto most participants,it is not
obvious that constitutionalizinga political debate like impeachment altersit in any significantway. Onlywhen RepublicanMembers of Congresscame to believe their own constitutionalrhetoric
and concludedthat their constituents'preferenceswere irrelevant
to the question of whether the Presidentshould have been removed from office did constitutionalizing
the impeachmentdebate
becomepernicious.
Makingthe constitutionalstandardfor impeachmentmore definite probablywould renderthe outcome of any future impeachConstitutionconsistently had been interpreted to permit racial segregation. 102
Cong. Rec. 4515-16 (1956) (SouthernManifesto).
6 See, e.g., PlannedParenthoodv. Casey,505 U.S. 833 (1992)
(reaffirmingright to
abortion);Adarand Constructorsv. Pena, 515 U.S. 200 (1995) (holding affirmative
action subjectto strictscrutiny);Shawv. Reno, 509 U.S. 630 (1993) (holdingminority
voting districts subject to strict scrutiny);Lee v. Weisman, 505 U.S. 577 (1992)
(invalidatingschool graduationprayer);Printzv. United States, 521 U.S. 898 (1997)
(invalidatingfederalstatuteon TenthAmendment"commandeering"
grounds).
7 See, e.g.,JohnHartEly,DemocracyandDistrust:A
of JudicialReview(1980).
Theory
9 On the
culturallyelite biases of judicialreview, see MichaelJ. Klarman,What's
So Great About Constitutionalism?,
93 Nw. U. L. Rev. 145, 189-91 (1998).
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[Vol. 85:631
ment proceedingsless partisan. If the Constitutionprovidedthat
Presidentsshall be impeachedand removedfrom office for committing particularspecified offenses (in addition to treason and
bribery,which already are enumerated),the clarity of the rule
probablywould constrainpartisandisagreements. Yet it seems
doubtfulwhethersuch a gain in claritywouldbe worththe costs.9
Some Presidents(and judges) who committedthe specified offenses might be better left in office, and others who committed
nonspecifiedoffensespossiblyshouldbe removed. Standardsgenerally are preferableto rules for achievingoutcomes sensitive to
diversefactualcontexts."?But standardsinevitablyrequirethe exercise of discretion,and discretioninvites the interpreterto apply
his or her own values.01'The criticalquestionin the impeachment
contextis whetheror not such discretionis a good thing. A vague
(and thus discretionary)impeachmentstandardprobably boils
down to this: Settingaside cases where the President'sconductis
either so egregiousor so trivialthat both sides will agree on the
proprietyof removal,intermediatecases likely will resultin partisan splits.'02Thus, Presidentswill be removablefrom office either
when the objectionableconductmeets a thresholdstandardand
the impeachingparty has a two-thirdsmajorityin the Senate, or
when the conductis sufficientlyegregiousthat bipartisansupport
for impeachmentexists. The former scenario is extraordinarily
rare;the President'spartyalmostneverholds fewer than one-third
of the Senate'sseats. AndrewJohnsonwas the only Presidentin
Americanhistoryto fit that scenario;'03
he had been nominatedfor
99Cf. Story, supra note 55, ? 795, at 264 (arguingagainst tryingto enumerateimpeachableoffenses in advance).
100
Cf. Woodson v. North Carolina,428 U.S. 280 (1976) (invalidatinga mandatory
death penaltyprovision).
101
Cf. Yick Wo v. Hopkins, 118 U.S. 356 (1886) (invalidatinga grantof unfettered
administrativediscretion).
102
Cf. The FederalistNo. 65, at 440 (AlexanderHamilton)(JacobE. Cooke ed., 1961)
decisions"willbe regulatedmoreby the comparitive
(notingthe dangerthatimpeachment
of innocenceor guilt").
[sic]strengthof partiesthanby the realdemonstrations
13See
Party Affiliationsin Congressand the Presidency,1789-1995, in Guide to
the Presidencyapp. B at 1681-82 (MichaelNelson ed., 2d ed. 1996);ChristopherL.
Eisgruber& LawrenceG. Sager, Clinton'sWorstMistake,Chi. Trib.,Dec. 27, 1998,
at C19.
1999]
ConstitutionalFetishismand Impeachment
659
the vice-presidencyby a partyto whichhe did not then belong and
whose principleshe had thoroughlyrepudiatedby the time of his
impeachment.14RichardNixon fit the latterscenario.'05President
Clintonfit neitherand thuspredictablywas acquitted. It is hardto
quarrelwith that result when a clear majorityof Americansendorsedit. Only an unreflectiveinvocationof constitutionalrhetoric disabled some participantsin the impeachmentdebate from
appreciatingthis.
104
See, e.g., Eric L. McKitrick,Andrew Johnson and Reconstruction90, 314-16,
490-91 (1960).
105
See, e.g., Stanley I. Kutler,The Warsof Watergate:The Last Crisisof Richard
Nixon 612-21 (1990).