The Constitution Doesn't Mean a Damned Thing to the So-Called "Constitutionalists"

It turns out "constitutionalists" have their own "Living Constitution"

William Belknap, Secretary of War under President Ulysses S. Grant, was impeached and tried in the Senate — along with his magnificent beard — despite resigning before the impeachment vote.

This is a newsletter about liberty, free markets, and the Constitution. But as I recently explained, the party that used to stand for these concepts — the GOP — has now co-opted each of these ideas to mean something entirely different from what they meant when I was a member of the party.

In particular, the GOP now reads the Constitution to mean basically anything they want it to mean. This is the opposite of constitutionalism. Reading the Constitution honestly, in a manner that might even constrain you from doing things you otherwise want to do: that’s what constitutionalism is. Here is a classic expression of the concept from Justice Scalia:

MORGAN: Why you believe that people who burn the flag in America should be allowed to do so? And yet you personally, if you had the chance, would send them all in jail?

SCALIA: Yeah, if I were king, I -- I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged. And it is addressed, in particular, to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.

Burning the flag is a form of expression. Speech doesn't just mean written words or oral words. It could be semaphore. And burning a flag is a symbol that expresses an idea -- I hate the government, the government is unjust, whatever.

Justice Scalia would have liked to punish those dirty hippie flag-burners, but he believed the Constitution prevented him from carrying out his personal wishes. That’s real constitutionalism.

I tried to think of a good recent example of real constitutionalism in the last couple of years, and God help me, the best example I could think of came from a Democrat: Joe Biden, no less. Remember this moment from a September 2019 Democratic debate? (Start the video and watch it for one minute, ending at timestamp 3:16.)

MUIR: You did bring up assault weapons here, and many of you on this stage have talked about executive orders.

Senator Harris, you have said that you would take executive action on guns within your first 100 days...

HARRIS: Correct.

MUIR: ... including banning imports of AR-15 assault weapons.

HARRIS: That's right.

MUIR: President Obama, after Sandy Hook, more than 23 executive actions, and yet here we all are today.

In recent days former Vice President Biden has said about executive orders, "Some really talented people are seeking the nomination. They said 'I'm going to issue an executive order.'" Biden saying, "There's no constitutional authority to issue that executive order when they say 'I'm going to eliminate assault weapons,'" saying, "you can't do it by executive order any more than Trump can do things when he says he can do it by executive order."

Does the vice president have a point there?

BIDEN: Some things you can. Many things you can't.

MUIR: Let's let the senator answer.

HARRIS: Well, I mean, I would just say, hey, Joe, instead of saying, no, we can't, let's say yes, we can.

(LAUGHTER)

(APPLAUSE)

BIDEN: Let's be constitutional. We've got a Constitution.

I am not a fan of Joe Biden. Nobody could read Robert Bork’s The Tempting of America, as I have, and come away with a view of Joe Biden as a constitutional scholar or as a particularly honest man. I’m not even going to assume that Biden was being sincere there. But none of that really matters to the overall point, which is to focus on Biden’s statement that he is constrained from taking executive action on assault weapons because of the Constitution.

That is constitutionalism. It’s when you’d like to take an action or position, but you are prevented from doing so because you have studied the document and determined that it prevents you from doing what you want to do.

The second impeachment of Donald J. Trump illustrates, as well as any example that comes to mind, how the so-called “constitutionalists” have twisted the meaning of the Constitution. On January 26, 2021, Senator Rand Paul offered a point of order arguing that this second impeachment effort is unconstitutional because President Trump is no longer in office. The point of order was garbage, as I will show below. Yet almost every Republican senator voted for it. [UPDATE February 7, 2021 at 5:53 p.m.: reader B.W. notes that as a technical matter, the vote was on a motion to table the point of order. While most senators have treated that vote as more or less equivalent to an opinion on the constitutionality of the impeachment, a couple of senators (John Thune and Rob Portman) voted against tabling the motion, but indicated that they did not feel bound by that vote to rule a certain way on conviction. Thanks to B.W. for that clarification.]

Before I discuss the constitutional issues, I think it’s worth taking a moment to step back and gape in awe at the absolute nerve of the Republicans’ position on the two impeachments of Donald Trump. Here’s how they have gone:

Impeachment #1:

  • Democrats: We’re impeaching Donald Trump!

  • Republicans: [Vote not to hear any evidence at the trial]

  • Republicans: There was insufficient evidence to convict!

Impeachment #2:

  • Democrats (and some Republicans): We’re impeaching Donald Trump again!

  • Republicans: [Delay trial until Trump is no longer President]

  • Republicans: It’s too late to convict because Donald Trump is no longer president!

Like porridge that is either too hot or too cold, an impeachment of your guy is either too rushed or it’s too late. The only time the impeachment will be just right is when it’s an impeachment of the other guy.

So-called “constitutionalists” will tell you that the latest impeachment proceeding, which is due to start the day after tomorrow, is unconstitutional — or at least that there is a serious debate about whether it is. As one example, here’s a statement from Mike Lee (and what a disappointment he has been to me personally):

If the Senate were to adopt a broad interpretation of the impeachment power—one allowing federal officials to be convicted on impeachment charges even after leaving office—the result would not only be problematic, but also contrary to the most natural reading of the text, structure, and historical understanding of the Constitution.

Senator Lee does not explain how this is so, and I am here to tell you that the overwhelming weight of authority — and the “most natural reading of the text, structure, and historical understanding of the Constitution” — says the opposite. This will be a bit of a deep dive on the topic, but constitutionalists like you are about to hear the topic debated in the coming week, so you might as well have the precedents and arguments at hand.

The first thing to note is that Article I, Section 3 of the Constitution states that impeachment can result in two consequences: “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” (Italics are mine.) Here’s the tricky part: it is literally impossible to disqualify a sitting president from holding future office. Disqualification will always and everywhere be a sanction that applies only to former presidents (or other officeholders). How can I say this with such confidence? Simple: the vote to disqualify always follows a vote to convict — and the vote to convict any sitting president automatically removes that president from office. So, by the time you get to the disqualification vote, the president will always be a former president who has already been removed from office.

In short, anyone who tells you that the Senate can vote to disqualify a current occupant of the office is simply wrong, and has not thought this through.

“OK,” I can hear you say, “but doesn’t the person being impeached have to be in office at the time of conviction?” No, and any other result would create an absurd result that the Framers could not have intended: that an officeholder could simply avoid future disqualification by resigning moments before the vote to convict is held. Under this view, an impeached president whose conviction was imminent and certain could simply burst in through the wall of the Senate chamber, like the Kool-Aid Man, minutes before the vote of conviction, only instead of yelling “OH YEAHHH!” the president would yell “I RESIGN! OH YEAHHH!” And unlike Michael Scott “declaring” bankruptcy by yelling “I DECLARE BANKRUPTCY!” at the workers in his office, the president’s resignation probably could take effect that quickly. I don’t think the Founders meant to allow a president to escape disqualification so easily.

But you don’t have to take my word for it. Jed Shugerman, a professor at Fordham Law School, examined the Founders’ debates about impeachment — with a particular focus on statements from George Mason, Edmund Randolph, and Gouverneur Morris — and concluded:

Taken together, a fair reading of the Convention debate indicates that the Framers supported a broad impeachment process for presidential misconduct at the end of their terms, especially with respect to re-election abuses, corrupting or contesting electors, and insurrections. They also implicitly viewed disqualification as an important punishment after they were out of office.

Prof. Shugerman echoed the argument I mentioned a few moments ago: that a rule against impeachment of former officeholders “would allow any impeached official to dodge trial and disqualification by resigning even a minute before trial, especially once they had a sense the vote was headed to conviction.” As Shugerman and Brian Kalt have argued: “this rule would have a perverse effect that the most guilty officials would be most likely to avoid disqualification, and it would be odd to put a process so entirely in the hands of a defendant.”

This Kool-Aid Man “I RESIGN” stratagem has been tried — not the “OH YEAHHH!” part, but the resigning before conviction part. And it didn’t work. At this point I will hand the microphone to Steve Vladeck, a professor at my alma mater, the University of Texas School of Law, who published a piece in the New York Times explaining why impeachments of former presidents are perfectly constitutional. In that piece, Prof. Vladeck explains:

In 1876, disgraced Secretary of War William Belknap tried exactly that — resigning minutes before the House vote on his impeachment. The House impeached him anyway, concluding that his resignation did not defeat Congress’s impeachment power. And although some senators ultimately voted to acquit Belknap (who narrowly escaped a guilty verdict) because he was no longer in office, the Senate as a body first concluded that it had the power to try former officers, adopting a resolution that Belknap could be tried “for acts done as Secretary of War, notwithstanding his resignation of said office” before he was impeached.

The Belknap case cemented two precedents: Congress can impeach and remove former officers, but the fact that the defendant is no longer in office is one factor that senators may take into account in deciding whether to vote to convict. 

There are other precedents that are arguably less relevant. For example, the very first impeachment of them all was of a senator, William Blount, who had attempted to resolve some financial difficulties by sending a letter to Indian tribes encouraging them to attack Spanish territories. (Long story.) The Senate expelled Blount and then began an impeachment trial, which ended when the Senate voted that he was not impeachable, rejecting the assertion that he was “was a civil officer of the United States.” The vote has come to stand for the principle that a senator cannot be impeached. Anyone who argues that the Blount vote also meant that former officeholders cannot be impeached has to contend with the contrary precedent of the Belknap case discussed above.

Michael J. Gerhardt, a constitutional law professor at the University of North Carolina School of Law in Chapel Hill, has argued that the little-known impeachment of federal judge West Humphreys is an argument for impeachment of former officeholders because Humphreys had “abandoned his office a year before his impeachment” to join the Confederacy. But Humphreys did not formally resign, and most scholars consequently tend to treat his impeachment as one of a “current” officeholder.

While these precedents are not rock-solid, they generally stand for the proposition that the Senate believes it can try former officeholders. The funny thing is, since Prof. Vladeck’s piece was published on January 14, the Senate as a body has reaffirmed this precedent, explicitly finding for at least the second time that the Senate may indeed impeach a former officeholder. This precedent comes to us courtesy of . . . the aforementioned Senator Rand Paul! It is true that contemporary media accounts emphasize the fact that the rejection of Sen. Paul’s point of order shows that the impeachment is doomed to fail — and that is quite right. But the historical precedent that the Senate has once again reaffirmed, by a bipartisan vote of 55-45, is the precedent that the Senate may hold an impeachment trial of a former officeholder.

Those who argue that the current impeachment is unconstitutional often cite this Washington Post op-ed by former federal appellate judge Michael Luttig. Even Judge Luttig admits that the Belknap and Blount cases “provide some backing for the argument that Congress can conclude that it has the power under the Constitution to impeach a former president.” But Judge Luttig then immediately discounts Congress’s prerogative with this utterly befuddling and wrongheaded passage:

In the end, though, only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment of him. It is highly unlikely the Supreme Court would yield to Congress’s view that it has the power to impeach a president who is no longer in office when the Constitution itself is so clear that it does not.

With all due respect to Judge Luttig, this is embarrassingly wrong. The Supreme Court of the United States addressed the question of the justiciability of impeachments the year I graduated from law school, in the case of Nixon v. United States (1993) 506 U.S. 224. In that case, involving the impeachment not of Richard Nixon but of United States District Judge Walter L. Nixon, Jr., the Supreme Court held that the Senate’s “sole” power to try impeachments means that the Supreme Court will not hear a challenge to an impeachment on any basis other than “the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried.” Any other challenge — including Walter Nixon’s constitutional challenge to a Senate rule that allowed evidence to be presented to a committee and not the entire Senate — is considered “nonjusticiable” and the case will be tossed out of court.

Judge Luttig ought to know this. Yet he does not even mention the Nixon case in articulating his very silly and plainly wrong opinion that “only the Supreme Court” can say whether former officeholders can be tried. In fact, only the Senate can make this decision — and the Senate has now, as a body, resolved that question in the affirmative, at least twice.

(By the way, don’t get too excited about the last of the three “very specific requirements” cited by the Nixon court; namely, the requirement that “the Chief Justice presides when the President is tried.” That requirement might get Trump through the front door of the Supreme Court — assuming he chose to walk through the door and not burst in through the walls like the aforementioned Kool-Aid Man — but it would not get him a win. In a different world where Trump was convicted, Trump indeed might get the Supreme Court to hear a challenge to his conviction on the basis that John Roberts did not preside, but that challenge would likely fail because the president — Joe Biden — isn’t being tried. (Sorry, Q crowd; he is indeed the president.) The former president is the one being tried. Chief Justice Roberts need not preside, although I think he ought to in order to resolve any questions.)

Despite all the legal gobbledygook, my point here is simple: the Constitution’s language, the relevant precedent, and logic all make it clear to any unbiased person that the Senate may indeed remove, and disqualify from holding federal office, a former officeholder. But so-called “constitutionalists” like Mike Lee are content to twist the Constitution to benefit Donald Trump — a man of whom Mike Lee said in 2016: '“We can get into the fact that he accused my best friend’s father of conspiring to kill JFK. We can go through the fact that he’s made statements that some have identified correctly as religiously intolerant. We can get into the fact that he’s wildly unpopular in my state . . .” That’s who you’re twisting the Constitution for, Sen. Lee???

For Trump? Why Mike, it profit a man nothing to give his soul for the whole world . . . but for Trump!

The silliness of the so-called “constitutionalists” does not begin or end with Mike Lee. Here’s Little Marco Rubio on the topic:

Who are you to tell voters that? You’re a United States Senator, that’s who! What does Marco Rubio think the disqualification clause is there for?

As an aside: beyond the fact that the disqualification clause is right there in the Constitution, the notion of an appeal to the Glorious Principle of letting voters make their own choice rings hollow given the precise context here. After all, voters did make their own choice in 2020, and they chose to reject Donald Trump. (Yes, I understand 74 million people voted for him, but just like the Senate as a body has affirmed and reaffirmed its ability to try former officeholders, the electorate as a body selected Joe Biden, by a margin of 306 electoral votes to Donald Trump’s 232.) And Trump refused to accept that decision, mounting a campaign of disinformation in a naked attempt to invalidate the voters’ choice. So appealing to voters’ ability to choose their own candidates is not as persuasive an argument as Little Marco seems to think. As a reminder, here is what Trump’s campaign of lies led to:

Not to mention all the deaths.

I still support the conservative movement’s ongoing efforts (on pause for at least four years; thanks, Trump!) to place constitutionalist judges on the bench. By and large, I think judges appointed by Republicans, including Trump, have been true constitutionalists — even rejecting bogus Trump election lawsuits in no uncertain terms. It doesn’t really matter that the so-called constitutionalists in the Senate have revealed their motives to be base, phony, and partisan. After all, the Democrats would all do the same thing in their shoes — and some of us remember the Clinton years, when both sides held precisely the opposite opinions on impeachment that they hold today.

Yes, everyone is awful. But constitutionalists are especially disappointing because they should be better.

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P.S. I believe I have set up an option for y’all to become paid subscribers to the newsletter. I intend to continue a free missive once per week, but I hope to tackle more controversial topics for paid subscribers, including exclusive chats. For example, my first subscription-only email goes out tonight, and will summarize my predictions regarding a lawsuit that a union representing Los Angeles County District Attorneys has filed against District Attorney George Gascón. The ruling may come out tomorrow, so you’ll be able to see very quickly whether your subscription was worth it! Sign up to subscribe here: