ELB Book Corner: Victoria Nourse: “What Impeachment Teaches Us About How Lawyers Misread the Constitution”

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

ELB Book Corner

Ask the public if impeachment is important, and they will say “yes.”   Ask a constitutionalist whether they teach it, and they will say “no.”   Why the disconnect?   In part this reflects a simple problem:  constitutional law teaching in many law classrooms is not really about the constitution. 

Yes, you heard me.   Constitutional law teaching is not about the constitution.  It is about the Supreme Court.  And the Supreme Court is only one part of our constitution, arguably the least important institution.  This is rather easy to prove.   Abolish the Court’s power of judicial review of federal legislation, a core part of the teaching of constitutional law.  What happens?    Democracy easily survives.   Congress and the President live; state governments live.  The republic lives, just as it does in other countries where there is no judicial review.   Now compare this with getting rid of elections.   If we eliminate elections, we have no republic and no institutions, no Congress or Presidency.   End of story.   Democracy dies.

 The constitution was created to empower self-governance, not to create courts.  So, if you care about democracy, constitutionalists (and everyone else interested in government) should confront this problem.   No one doubts that presidential impeachment is a big deal in a democracy.  And, yet, it fits poorly in the conventional constitutional law syllabus which is mostly about judicial decision.   The judiciary has declared that impeachments are outside their bailiwick by deeming them “political” questions.   Out of judicial view, out of the con law syllabus.

 Teaching impeachment can be an antidote to this court-centered approach to the constitution.   One might even start a course with impeachment because it is both timely and it is about everything but courts.   Impeachment puts elections and representative institutions at the center of the Constitution, where they should be, and the center of the separation of powers. One cannot think of impeachment without understanding that the constitution creates two great governing institutions:  the Congress and the Presidency.  The Constitution after all begins with Article I and Article II.  As Matt Stephenson and Jide Nzelibe have written, the system we know as the separation of powers is a system built for voters.  And, as I wrote decades ago, this voter-based system means that constitutional power is really as much about the power of particular groups of constituents to make decisions as about particular adjectives like executive, legislative, and judicial.  

How can students come to understand this?   Well, consider the argument made by every President defending against impeachment:  don’t impeach, let the people decide in the next election.    The problem with the wait-until-the-election argument is that the people are deciding in an impeachment.   The House and Senate represent a different set of geographies, but when united they represent the people and have greater legitimacy than the President who rules from afar and may be elected by a minority of citizens through the electoral college.   So, House and Senate members were right to ignore Trump’s pleas that the impeachment was somehow “wrong” because the people were being cut out.   Impeachment only happens because of the people’s representatives.   Just add up the populations represented by the members who voted for the Articles and the Senators who voted to impeach.

 Of course, this resists the instinct for the constitutional capillary that focuses on the precise texts of the impeachment clauses.   Those are necessary, but entirely insufficient, to explain what goes on in an impeachment.   Impeachments are powered by our collective electoral institutions.   Law has for too long had a contempt for these institutions as if all that is “political” is bad.   As I write in the book, beware the term “political.”  It is full of so much meaning, it means nothing, ranging from democracy to party to raw selfishness.  Constitutionalists need to stop teaching contempt for the constitution as a whole.  Try impeachment:  the students might learn something about the importance of elections to democracy.

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