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Monday, December 09, 2019

What the "Legal Scholars Letter" Suggests About the Signers' Views on Constitutional Interpretation

From TaxProfBlog, I learn of a letter published on something called Medium and titled "Letter to Congress from Legal Scholars." I am less interested in what it says on the primary subject of the letter--whether "President Trump engaged in impeachable conduct"--and more in what it offers by way of insight into the views of some 765 individuals (so far) affiliated with law schools, including full-time, adjunct, and visiting scholars, on American constitutional interpretation. In general, and imperfectly, I try to avoid making statements about others' motivations or thinking, because we see through a glass darkly on such questions and because it is rarely necessary to draw conclusions about others' motives or thinking when we can focus instead on their words and actions. But for present purposes, I do write with the assumption that the signers believe the contents of the letter, and that their beliefs extend past the bottom line to embrace at least the major arguments made in the letter and the legitimacy as sources of the sources they rely on. I cannot say this is an accurate assumption as to any particular signer. But it seems to me that to assume anything else would be disrespectful. On that assumption, I think we can identify in the letter at least the following propositions about constitutional interpretation. They are hardly shocking propositions; there is no "gotcha" spirit to this post. But it is always interesting to take a sounding of the basic views on constitutional interpretation of a large number of American legal scholars, some of whom teach and/or write on constitutional law.  

1) The views of the "Founders" are at least relevant to constitutional interpretation. Having offered the statement that the president engaged in impeachable conduct, the letter proceeds: "We do not reach this conclusion lightly. The Founders did not make impeachment available for disagreements over policy, even profound ones, nor for extreme distaste for the manner in which the President executes his office." It states that President Trump's conduct "is precisely the type of threat to our democracy that the Founders feared when they included the remedy of impeachment in the Constitution." It cites the Founders' "keen[ ] concern[s]" about corruption in presidential dealing with foreign governments and their "thinking on impeachment." These views and concerns are repeatedly given a strong role in the letter's account of what impeachment is for and what it means. Obviously they think the Founders' views are highly relevant to the interpretation of the Constitution. Although I leave it at "relevant," it doesn't seem unfair to say that the letter suggests that the Founders' views are not only relevant, but of great importance in understanding the Constitution and its individual provisions. As a side note, it is interesting that the letter refers solely to the "Founders" and not to the ratifiers of the Constitution.

2) The Federalist and the constitutional convention--apparently including Madison's notes of the convention--are relevant sources of constitutional interpretation. In its assertions about what the constitutional text concerning impeachment means, its purposes, and its applications, the letter links three times to the proceedings of the constitutional convention and once to the Federalist. One can therefore assume that the letter's signatories believe these are relevant sources of constitutional interpretation. (This does not necessarily mean they believe they are relevant interpretive sources for judges.) As a side note, it appears that the letter implicitly weighs in on the reliability, at least in broad terms, of James Madison's notes of the convention--a point that has recently and prominently been questioned by the legal historian Mary Sarah Bilder--since it appears to link to Max Farrand's use of Madison's notes. I am not sufficiently familiar with the specifics of Bilder's work to say how her criticisms would apply to the particular portions of Madison's notes that the letter relies on as authority. Whether or how much one should rely on the Federalist has, of course, long been a question for constitutional interpreters, and the letter apparently settles on the view that one can rely on it at least to enough of an extent as to make it one of one's primary sources in a letter to Congress about the constitutional meaning of impeachment.  

3) At least where it is specific, constitutional text is exclusive. To repeat and extend the quote I used above, the letter argues early on, "The Founders did not make impeachment available for disagreements over policy, even profound ones, nor for extreme distaste for the manner in which the President executes his office. Only 'Treason, Bribery or other high Crimes and Misdemeanors' warrant impeachment." This seems to suggest a conclusion that, at least where the Constitution provides specific textual instructions or grounds and omits others, that text--glossed, as we have seen, by the views and concerns of the "Founders"--is authoritative and exclusive. I do not draw any conclusions from this proposition about what the signers might think about the nature of more vague or open-ended constitutional text or about the existence or non-existence of unenumerated rights. I am a little curious how the proposition the letter adheres to would apply to the arguments of Professors Ackerman and Amar about the non-exclusivity of the quite specific instructions set out in Article V concerning constitutional amendment. One would think that as a logical matter the signers would be disinclined to share Ackerman or Amar's views, although surely that question would require a good deal more airing.

4) Oaths, office, and the "public trust" matter. The letter includes within the scope of impeachable conduct a president's "betray[al]" of his oath of office, at least where it involves threats to American democracy. It goes on to assert that "[i]mpeachment is a remedy for grave abuses of the public trust," and that treason and bribery, the "two specific bases for impeachment named in the Constitution" (with "high Crimes and Misdemeanors presumably read as non-specific bases), involve grave abuses of the public trust because they "include conduct undertaken not in the 'faithful execution' of public office that the Constitution requires, but instead for personal gain (bribery) or to benefit a foreign enemy (treason)." While these assertions must surely be read in light of the specific circumstances, I think they can properly also be read more broadly, to suggest the importance of the oath of office, of faithful execution, of the concept of public office itself, and to suggest that faithful execution of the oath does not include actions undertaken (strictly?) for personal gain as opposed to for purely public-regarding and office-centered reasons. Again, this is not a "gotcha" post and I do not understand these propositions to be terribly controversial as such. I do find them interesting, nonetheless, for a few reasons. The most important is the recognition of something (at least on my reading of these subjects) more than strictly positivistic, textualist, or power-related in the action of office-holders, but rather a recognition of the importance of the concept of office, of oath-keeping, and of particular virtues in the holding and performance of one's office. It is a topic I find fascinating and have written about. The letter also suggests the influence of recent legal writers, including my blog-mates Ethan, who has written about oaths and faithful execution, and Richard, who has written about oaths. Whether the logic of this focus on oath, office, and faithful execution might have more interesting or controversial applications is not something I'm in a position to opine about. But I would be curious about two questions. One is how these propositions should be understood to apply to judges, who also take oaths of office (both constitutional and statutory), and in particular whether a judge who rules for reasons of, say, a general and personal sensibility concerning justice rather than for more channeled and textually constrained legal and constitutional reasons is in violation of his or her oath. The second is whether the presidential oath and the faithful execution of public office are only violated by certain kinds of personal gain. The letter focuses on bribery--understandably, since it is one of the specific grounds for impeachment. But one can violate one's oath and one's duty of faithful execution in other ways than bribery. Does a president who acts, not with the public good and the faithful execution of his or her office first and foremost in mind, but for things like the good of his or her own re-election of party fortunes similarly violate the oath and his or her constitutional duty? If so, is that impeachable as well?

5) "Extreme distaste for the manner in which the President executes his office" is not a basis for impeachment. That last question may be answered in part by the opening argument of the letter, quoted above, which states that neither profound policy disagreements nor extreme distaste for the manner in which the President executes his office are "available" bases for impeachment. That suggests at least some implicit limitation on the kind of conduct that falls within the scope of violation of the oath or of the duty of faithful execution, or conversely suggests that only some forms of execution are faithless, and that some extremely distasteful forms of execution of the office of the President can nevertheless be "faithful execution." Without suggesting that the letter itself says more about this topic than it actually does, it seems to me that this proposition necessarily has some implications for other questions that have been raised around the current impeachment controversy. One member of Congress, for instance, has argued that the articles of impeachment should be broadened to include "[the President's employment of] racist, anti-Semitic, Islamophobic, transphobic, xenophobic language instigating enmity and inciting violence within our society" and "'the adverse impact his racism is having on the countless African-American victims who believe that, too often, one party ignores us and the other takes us for granted." A newspaper writer, saying he had consulted on the question with "legal experts," recently called for eight articles of impeachment, including "conduct grossly incompatible with the presidency" such as "[lying] constantly, eroding the credibility of the office." Without wanting to presume too much and with due acknowledgment that the devil is in the details, it seems to me that the logic of the legal scholars' letter suggests that some or many of the signatories would feel compelled to disagree with such arguments and hold these to be "unavailable" bases for impeachment.  

Again, to be perfectly clear, I am interested only in the propositions offered or strongly implied in the letter. I draw no firm conclusions about what its signers actually believe, although the contents of a document that one signs and offers to Congress ought to be pretty good evidence of just that. I understand that some people may feel free to sign letters or amicus briefs--even when those letters or briefs not only make clear that they are writing as legal scholars but add that they "do not reach" the conclusion(s) offered in the letter "lightly"--with which they do not fully agree or as to which they agree only with the bottom line while taking various views on all the stated "considerations" that lead to that bottom line. I believe such a position to be inconsistent with either scholarly or civic integrity, but I imagine views on that will differ. And certainly there is room for friendly argument and further thought--by me, by others, and perhaps by the signers themselves--about what the letter and its arguments mean and imply for constitutional interpretation, both as to impeachment and as to other constitutional questions, although I would think they must mean something. 

Posted by Paul Horwitz on December 9, 2019 at 12:30 PM in Paul Horwitz | Permalink


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