ELB Book Corner: Victoria Nourse: “Impeachment and Constitutional Argument”

I am pleased to welcome to ELB Book Corner Victoria Nourse, writing about her new book, The Impeachments of Donald Trump: An Introduction to Constitutional Interpretation (West 2021). Here is the second of three posts:

ELB Book Corner

In his book on Impeachment: A Citizen’s Guide, Cass Sunstein claims that he never heard a word about impeachment when he was a law student.  No doubt that is true of many constitutional law classes today.   I wrote The Impeachments of Donald Trump with that in mind.   I wrote it so that it could be used in constitutional law classes or classes on democracy.

The book provides an easy resource for academics and students on the key facts and arguments deployed in the Trump Impeachments, much like the book done by Karlan, Pildes and Isacharoff on the nation-grabbing electoral events in Bush v. Gore.  As I said in my last post, I wanted to give witness to an extraordinary assault on our system of government at its most basic electoral foundation.   An impeachment is a living demonstration of the separation of powers in action, far more powerful than any arcane case on presidential removal now littering casebooks on constitutional structure.  Presidential power and congressional oversight, not to mention elections, deserve their time in the constitutional sunshine.

            Then why does the book refer to “constitutional argument?”  Many will find this strange.  Congress and constitutional argument?  Haha.  Those fools know nothing of the constitution.  The impeachment’s record belies this conventional rejoinder by law professors enamored with judicial supremacy.  Remember, Rep. Jamie Raskin, the lead House manager for the Second Impeachment, actually did teach constitutional law!  The truth is that liberal and conservatives’ contempt for Congress is anti-constitutional, anti-democratic, anti-republican (since we actually have a republic), and self-fulfilling.   If you have contempt for people, they will be contemptible.

            Focusing on the way that lawyers argue helps me make three points. 

First, pushing back on so-called originalism or textualism.  My own view is that these are “theory facades,” that obscure legal reasoning, and I write a great deal about that.  The impeachment supports my claims.  Even Trump, who put so many originalist and textualist Justices on the Supreme Court, had lawyers who did not stop at 1787 or text; his lawyers went on to make arguments based on precedent, policy and consequences. 

Second, adding my name to the work of those like David Currie who have written about Congress’s constitutional arguments by taking them seriously, rather than scoffing at them.  I am one of approximately 2 percent of law professors who have actually worked in Congress and in the White House.  All constitutional argument is “political” in some sense of the word.   The truth is that constitutional argument in America is infused within all the branches, making them all the better for internalizing some attention to the rule of law.

Third, luring constitutionalists, or those teaching about democracy, even those teaching pre-law, to use the book.  In law schools, constitutionalists all teach some version of constitutional argument, many through cases like Marbury v. Madison which are incomprehensible to first year students.  Why not make the modalities of constitutional argument fun?  Set the forms of argument in an important, real-life, setting?   Even if one teaches against these “forms” or argument, why not try to get to understand what those lawyers are doing?

Members must learn to translate complex legal issues into terms that normal people understand.   That makes the arguments easier for students to understand.  To be sure, as I explain in some detail, when members of Congress argue about the constitution, their own interests will bend their arguments toward Congress’s interests and their political advantage.   But is that really so different from the most salient cases in the Supreme Court, which Andrew Coan and Michael Bailey have shown, are often bent to institutional advantage or political preference?   The political pressures are of course more salient in representative institutions, but it should be of interest that the lawyers in the Impeachments chose not to argue as politicians do: They did not confuse polls for text, or list interest groups and supporters as if that were a conclusion.   They used the conventional legal modalities we teach law students.

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