The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My last guest-post set forth the argument for legitimate but not supreme state authority to interpret the Constitution, independently and in good faith. That position is described and set forth more fully in "The Constitution: An Introduction," my co-authored book with Luke Paulsen, from which my post cribs.
That leaves two promised specific discussions remaining, building from the general idea that the Constitution does not establish a single authoritative interpreter (in the form of the Supreme Court) but instead divides the province of constitutional interpretation among numerous actors, none of whom is literally bound by the views of any of the others.
The most controversial application of this general view is our suggestion—gingerly but unmistakably advanced in our book—that Congress legitimately may employ the impeachment power to remove from office federal executive and judicial officers who, in Congress's constitutional judgment, have committed the "high crime" of willful violation of the Constitution. The second remaining issue is the independent interpretive province of criminal and civil juries, which I will discuss more briefly at the end of this post.
What? Impeachment as Congress's ultimate-trump-card constitutional check on abuse of interpretive authority by the other branches!? Impeaching judges and justices for their decisions, on the theory that (at least under certain circumstances) knowing and deliberate misinterpretation of the Constitution might constitute a willful abuse of constitutional power, a violation of a judge's sworn oath, and thus an impeachable high offense against the Constitution?
The suggestion is very nearly outrageous to modern sensibilities. But, as we set forth in the book, that idea was close to the heart of the defense of the impeachment power in the framing generation—and part of what Alexander Hamilton, writing in The Federalist numbers concerning the judicial power under the Constitution, used to reassure his readers that the new independent judiciary could never become a runaway institution. (Hamilton was perhaps mistaken, or overly optimistic, on a few other prophecies as well.)
In the course of our survey and description of Congress's powers (in Chapter Three), we offer this view of the sweeping, and seemingly open-ended, impeachment power:
Finally, the House and Senate share the all-important impeachment power, Congress's ultimate check—though one that is only rarely used—against abuse of power by the President, other executive branch officials, or the courts. The House alone decides whether or not to impeach the President, the Vice President, or other executive or judicial officers "for Treason, Bribery, or other high Crimes or Misdemeanors"—a broad term that gives the House substantial discretion to decide what kind of misconduct is sufficiently important to justify removing a person from office.
Once the House has voted to impeach, the Senate conducts the impeachment trial and determines whether the impeached official is guilty as charged by the House—a power that vests the Senate with similarly sweeping discretion. The Senate's judgment is unreviewable by any other body; its decisions are final….
We then note Hamilton's observation in The Federalist No. 81 concerning impeachment as a check against usurpation of power by judges, and how the impeachment power may serve to deter misconduct or abuse of power.
Far from being a "scarecrow," then, [as Jefferson called it,] the power of impeachment might better be thought of as a "wild card" in the Constitution. That phrase was coined by the late Chief Justice William Rehnquist …. Impeachment, Rehnquist observed, is a "wild card" power in that its exercise rests ultimately in the unreviewable judgments of the House and the Senate, acting outside their ordinary legislative roles, about when and for what reasons a high executive or judicial officer should be removed. As it has happened, the House and Senate have been rather restrained in the use of this power. … In practice, the impeachment power has been a high trump card that Congress mostly has held in reserve. But it remains a powerful, latent check—and an essential one, given that the constitutional powers of the President and the courses, as we shall soon see, are themselves so formidable and susceptible to abuse.
Later in that chapter, in describing the powers of the judiciary, and congressional and executive checks on that power (including the power of presidents to decline to execute judgments, discussed in an earlier post on "Lincoln versus judicial supremacy"), we pick up on Hamilton's point about impeachment as a check on the judiciary's abuse of its power to interpret and apply the law"
Thus, it was clear that the judiciary would have a "total incapacity to support its usurpations by force, Hamilton observed in The Federalist No. 81.
Moreover, as already noted, Congress's impeachment power would further deter the courts from abusing their power. "This is alone a complete security," Hamilton continued. "There never can be a danger that the judges, by a series of deliberate usurpations of the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their states." To put this more plainly (and in today's language): Congress could impeach and remove federal judges if they repeatedly and deliberately abused their power to interpret the Constitution—a drastic measure, reserved for drastic abuses, and one that Congress has never found fit to use—though it came close early in our nation's history, impeaching (but not convicting) Justice Samuel Chase in 1804 for his partisan decisions and perceived abuse of judicial power (see Chapter 6). Judges have been removed for ordinary crimes like receiving bribes or obstructing justice, but not (yet) for abuse of their constitutional power to interpret and apply the law.
In our subsequent discussion of the Chase impeachment, we observe that impeaching judges for their "political affiliations" or because of "mere disagreement with their decisions" is, "outside of extreme cases of judges' flagrant violation of their oaths to adhere to the law, probably an abuse of the impeachment power." We also observe that the Jeffersonians' failure to remove Chase "unintentionally established a precedent strengthening judicial independence."
How about it? Is impeachment for (what Hamilton called) "a series of deliberate usurpations" or (what we call) "drastic abuses" or "flagrant violation of [judges'] oaths to adhere to the law" constitutionally proper?
Our book refrains from drawing a conclusion too strongly, leaving the matter to the evaluation of its readers. But the very suggestion of the legitimacy of such a conclusion may itself be taken to be somewhat controversial.
We reserve rather more direct criticism for the Jeffersonian Congress's Judiciary Act abolishing judgeships that had been created and filled in the closing days of the Adams administration, labeling that repeal act unconstitutional. We similarly have a more harsh critique, much later in the book, of FDR's court-packing plan, as an effort "to weaken the Court itself as an institution" and one that would have "established the precedent that whenever the President and Congress became annoyed with decisions of the Court, they could simply dilute the votes of the justices by adding justices more to their liking." This, we say, "could have permanently diminished the Court's ability to check the other branches, an act that would have had major consequences for the Constitution's separation-of-powers balance."
By implication, at least, our book takes a more charitable view of impeachment than of either court-terminating or court-packing as a check against (believed) judicial lawlessness. Impeachment of judges for perceived deliberate abuse of office by their lawless decisions—"a series of deliberate usurpations" in violation of their oaths—is directed (as the impeachment inquiry properly should be) at individual culpability, not institutional capability. That is more constitutionally defensible in principle, even if it has fairly obviously troubling implications and (like all powers and checks) is capable of being abused.
Going beyond the words of our book—and speaking only for myself and not my co-author—I would hazard the view that use of the impeachment power as a check against interpretive abuses by other branches, is, where applied in good faith by a responsible Congress, fully consistent with the broad scope of discretion afforded by the language of the Constitution's impeachment standard ("high Crimes and Misdemeanors") and also with Article III's specific textual protections for judicial independence by providing for life tenure ("The Judges … shall hold their Offices during good Behaviour"). Life tenure is not a warrant for judges doing whatever they want. A sufficiently outraged Congress fairly could deem a judge's deliberate violation—or disingenuous evasion—of his or her constitutionally required oath to support the Constitution to constitute a high crime or misdemeanor.
* * * * *
A final example of decentralized interpretive power is suggested by our book's discussion in the chapter on the Bill of Rights (Chapter 5) of the centrality of the jury and the (probable) original understanding of its legitimate law-interpreting power. After setting forth the provisions in the Fifth, Sixth, and Seventh amendments concerning grand and petit juries in criminal cases and civil jury trial rights, we make the following observations concerning the framers' design and purposes:
The jury would serve as a vital check on government power—in this instance, on the judicial power—in every significant legal case between citizen and government and between citizen and citizen and citizen. As Thomas Jefferson put it, with typical verve -and perhaps slight overstatement, for dramatic effect—"Were I called upon to decide whether the people had best be omitted in the Legislative or Judicial department, I would say it is better to leave them out of the Legislative."
It is difficult to exaggerate how greatly the founding generation valued the right to trial by jury, and how much Americans of that era valued the institution of the jury as a way of bringing ordinary people directly into the operation of the law. The jury was understood to be the very bulwark of constitutional liberty precisely because the institution of the jury put the People in charge, ultimately, of the administration of their government. The jury was originally understood as having not only the power to judge the facts of a case; but an independent right to interpret the law as well—a power that, taken seriously and applied to the Constitution as supreme law, has profound (and to modern sensibilities, somewhat rattling) implications: it would vest in grand juries, criminal juries, and civil juries a co-equal province of constitutional interpretation with judges; the jury would be, in effect, the "lower house" of a bicameral judiciary. This traditional right of the jury to interpret and apply the law in cases before them, independently of the views of the judges, should not be confused with the idea of "jury nullification"—the name sometimes given to the raw power of the jury (defended as legitimate by some) to disobey or defy the law for political purposes. The founding idea was different: juries had an equal right to judge the law—to interpret and apply it, in good faith—but were bound by oath and conscience to give fair effect to its proper meaning, not simply to ignore the law whenever the members of the jury did not like what it said.
Clearly, we owe some of our thinking in this passage, to the insights of my old friend—and former law school roommate -Akhil Amar, who has long expressed these views. Our ideas with respect to the interpretive province of the jury are not original to us. (They are not original to Akhil either. They appear to have been part of the framing generation's core political and constitutional thinking.)
I will conclude this series of posts tomorrow with a few words about our book's reflections on—and judgments concerning -the overall course of America's historical practice of constitutional interpretation.