Toobin writes: "The outcome of the struggle to impeach President Trump remains in doubt, but one winner in the process is already clear: Supreme Court Justice Antonin Scalia, who died in 2016."
Justice Antonin Scalia. (photo: Supreme Court/Wikimedia Commons)
09 December 19
he outcome of the struggle to impeach President Trump remains in doubt, but one winner in the process is already clear: Supreme Court Justice Antonin Scalia, who died in 2016. As a scholar and a jurist, Scalia was the chief expositor of the judicial philosophy known as originalism. From beyond the grave, Scalia’s approach has dominated the impeachment debate, even among liberals. It’s a remarkable legacy, even if, on closer inspection, a troubling one.
What is originalism? Scalia himself gave a pithy definition. “The Constitution that I interpret and apply is not living but dead, or, as I prefer to call it, enduring,” he said, “It means today not what current society, much less the Court, thinks it ought to mean but what it meant when it was adopted.” All four law professors who testified at last week’s House Judiciary Committee hearing (the three who favored impeachment, and the one who did not) made originalist arguments to explain the meaning of the phrase “Treason, Bribery, or other high Crimes and Misdemeanors,” from Article II of the Constitution, which defines impeachable behavior. The professors canvassed the views of the Framers and trotted out the usual suspects—such as James Madison and George Mason—to support their positions. All three of those called by the Democrats even gave some air time to one of the more obscure Framers, William Richardson Davie, of North Carolina. During the debate on the Constitution in Philadelphia, in 1787, Davie said that, if a President could not be impeached, “he will spare no efforts or means whatever to get himself re-elected.”
Nancy Pelosi, the Speaker of the House, made the same kind of argument on Thursday, when she announced that the Judiciary Committee would draft articles of impeachment. “When crafting the Constitution, the Founders feared the return of a monarchy in America,” she said, and then went on to cite both Madison and Gouverneur Morris, who “feared that a President ‘may be bribed by a greater interest to betray his trust.’ He emphasized that ‘this magistrate is not the king; the people are the king.’ ”
There is nothing inherently objectionable about any of these views. By the standards of the Constitution, the phrase “high Crimes and Misdemeanors” is both unusually specific and, to modern ears, unusually opaque. It’s understandable to want to examine what the Framers meant when they wrote those words. But to pretend that divining their intent is the only acceptable way to interpret the Constitution—which was the subtext for much of the argument before the Judiciary Committee last week—is to court interpretive trouble. As Scalia’s definition implied, the opposing school to originalism is one based on a “living” Constitution, one whose meaning evolves with the society it presumes to govern.
The choice between these two approaches has enormous political content. As Scalia never tired of pointing out, the Framers did not believe that they were establishing a right to abortion or to same-sex marriage, and that, for him, ended the debate about whether such rights should be protected under the Constitution. But it’s chilling to consider that we might be bound forever not only to the words but to the world views of a group of eighteenth-century men—many of whom were slaveholders. That, however, is what originalism demands. And originalism presumes we can even figure out what the Framers thought about issues they never contemplated. (For example, Scalia’s majority opinion and John Paul Stevens’s dissent in District of Columbia v. Heller reached diametrically opposed conclusions about the original meaning of the Second Amendment.)
Even liberal Justices like Stephen Breyer and Elena Kagan have expressed some sympathy for originalism as a way of interpreting the Constitution. But they have also recognized that a changing society may demand changing views of an unchanging text. A “living” view of “high Crimes and Misdemeanors” might be welcome, as well. Given the vast reach of the contemporary Presidency—Presidents have engaged in warfare without congressional authorization, for example—we might want a broader scope for the impeachment power. That’s a worthy discussion to have. To assert that the debate about any provision of the Constitution can be settled for all time by inquiring into the lost spirits of the Framers demeans both their work and our lives.
