Don’t Embrace Originalism to Defend Trump’s Impeachment

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

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

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

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