America's Unwritten Constitution: The Precedents and Principles We Live By (3 page)

Sherman immediately leaped to Wade’s defense. As unflinching in debate as his famous older brother, General William Tecumseh Sherman, was in warfare, Ohio’s junior senator gave no quarter: “This question… is answered by the Constitution of the United States, which declares that each State shall be entitled to two senators on this floor, and that the court or tribunal for the trial of all impeachments shall be the Senate of the United States. My colleague [Wade] is one of the senators from the State of Ohio; he is a member of this Senate, and is therefore made one of the tribunal to try all cases of impeachment.” Sherman bluntly added that no one had objected moments earlier to the swearing-in of President Johnson’s son-in-law, Tennessee Senator David Patterson.
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The constitutional game was now afoot. For the rest of that day and well into the next, senators did what they did best—speechify—on the nice constitutional questions before them: Should Wade sit in judgment
when he obviously had an enormous personal stake in the outcome? But wouldn’t his recusal effectively deprive Ohio of its equal share in the Senate on the most momentous issue then facing America?

HOW SHOULD THE SENATE HAVE
decided the deep questions raised on March 5, 1868? It is tempting to say that senators should simply have followed the plain meaning of the written Constitution. But constitutional quicksand awaits all who insist on reading every clause of the document literally. Seemingly firm textual ground at times simply dissolves underfoot. For example, Article I, section 3, declares that “the Vice President of the United States shall be the President of the Senate” and that the Senate enjoys the “sole Power to try all Impeachments.” There are only two textual exceptions. First, “when the President of the United States is tried, the Chief Justice shall preside” over the Senate impeachment trial. Second, when the vice president is “Absen[t]” from the Senate or acting as America’s chief executive (because, say, of a temporary presidential disability), a Senate-chosen officer—a “Senate…President pro tempore”—may substitute. Read literally, all this seems to say that whenever the
vice president
is impeached, he
himself may
chair this Senate trial. But can it really be true that a man may sit in judgment of his own case?
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Clause-bound literalism cannot provide the infallible constitutional compass we crave. Yet surely faithful interpreters should not simply toss the written Constitution aside or treat it as an infinitely malleable plaything. How, then, should we proceed?

For starters, we must learn to read between the lines—to discern America’s implicit Constitution nestled behind the explicit clauses. In short, we must come to understand the difference between reading the Constitution
literally
and reading the document
faithfully
.

The best way for us to get a feel for this difference is through a series of detailed historical case studies and hypotheticals. Later in this chapter, we shall return to the events of March 5, 1868, but before we do, let’s tweak the actual facts of this episode so that we may better understand the underlying constitutional issues.

SUPPOSE THAT ANDREW JOHNSON
had been impeached exactly three years earlier. On March 5, 1865, Johnson was the newly installed vice president and thus the Senate’s ordinary presiding officer. Abraham Lincoln still lived. Could Vice President Johnson have properly insisted in 1865, as Senator Wade would insist in 1868, that the Constitution explicitly authorized him to wield power in impeachment proceedings? How should the Senate have responded if Johnson, stubbornly standing on the literal language of the Constitution, had proclaimed that as the nation’s vice president (and thus the “President of the Senate” according to Article I, section 3), he was entitled to chair his own impeachment trial?

The key that unlocks the door is the simple idea that no clause of the Constitution exists in textual isolation. We must read the document as a whole. Doing so will enable us to detect larger structures of meaning—rules and principles residing between the lines. Often, these implicit rules and principles supplement the meaning of individual clauses. For example, although no single clause explicitly affirms a “separation of powers,” or a system of “checks and balances,” or “federalism,” the document writ large does reflect these constitutional concepts. This much is old hat. But as we shall now see, there are times when the document, read holistically and with attention to what it implies alongside what it expresses, means almost the
opposite
of what a specific clause, read in autistic isolation, at first seems to say.

IN CLOSE PROXIMITY TO THE
declaration in Article I, section 3, that “the Vice President of the United States shall be President of the Senate,” we find the following language in Article I, section 5: “Each House may determine the Rules of its Proceedings.” These two clauses should be harmonized in a way that does justice to the central purpose of each. For instance, were the Senate to pass a rule that “no vice president may ever preside over the Senate,” then the Senate-proceedings clause would simply swallow up the Senate-president clause. We should not allow this to happen. But neither should we allow the reverse: We should not permit the Senate-president clause to swallow up the Senate-proceedings clause.

Here, then, is a sensible synthesis: The Senate should adopt a rule prohibiting
the vice president from chairing
any vice-presidential impeachment proceeding
. This rule would not categorically bar all vice presidents from ever presiding over the Senate. This rule would not even bar vice presidents from ordinarily presiding over the Senate. The rule would merely say that in certain unusual situations, the chamber’s usual presiding officer must absent himself from the chair as a matter of ethics and first principles.
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The long-standing practice of federal courts—which, like the practices of other branches can inform our understanding of first principles—confirms the soundness of this proposed reconciliation of the two clauses. The Constitution explicitly envisions a chief justice and implicitly authorizes this figure to preside over the Supreme Court, as a rule. However, in a case directly involving his own financial interests, the chief justice should step aside. In the landmark 1816 case of
Martin v. Hunter’s Lessee
, involving competing claimants to a tract of valuable Virginia real estate, Chief Justice John Marshall properly absented himself from the bench because he had a stake in some of the land at issue. Had Marshall not stepped aside, his colleagues would have been justified in demanding his recusal—not across the board, but in the case at hand. Centuries before
Martin
, the celebrated English chief justice Sir Edward Coke had famously ruled, in a lawsuit known as
Bonham’s Case
, that adjudicators must be free from financial self-interest. According to Coke, no man should be a judge in his own case.
⁶

Exactly where, a skeptic might ask, does America’s Constitution say that? Even if senators (or justices) are constitutionally permitted to follow the venerable legal maxim
nemo judex in causa sua
, are they constitutionally obliged to do so? If so, what is the source of this constitutional obligation?

To answer these questions, we will need to weave together several threads of law, history, and logic.

ONE THREAD MAY BE FOUND
in Sir William Blackstone’s
Commentaries on the Laws of England
, a canonical four-volume treatise first published in the late 1760s. Both before and after Independence, American lawyers and activists of all stripes relied heavily and preeminently on the
Commentaries
for instruction on basic English legal principles, many of which applied with full force in America. Sifting through nearly a thousand American
political tracts printed between 1760 and 1805, one scholar has found that no European authorities were cited more frequently than Montesquieu and Blackstone, each of whom was invoked almost three times as often as the next man on the list, John Locke.
⁷

Near the outset of the
Commentaries
, Blackstone explained that even seemingly absolute legislative language sometimes contained implicit exceptions. Certain things simply went without saying. To be sure, Blackstone made clear that judges must never ignore the “main object” of a law, however misguided that object might appear to them. “[I]f the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.…[W]here the main object of a statute is unreasonable the judges are [not] at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government.” Blackstone then introduced a key qualification: Judges (and other interpreters) should construe laws so as to avoid absurdity or unreasonableness when dealing with exceptional situations that the legislature did not envision when it crafted general language. “Where some collateral matter arises out of the general words, and happens to be unreasonable, there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only
quoad hoc
[as to this collateral matter] disregard it.”

Elsewhere in the opening section of the
Commentaries
, Blackstone elaborated this venerable canon of legal interpretation. “[T]he rule is, where words bear…a very absurd signification, if literally understood, we must a little deviate from the received sense of them.…[S]ince in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted.”

To illustrate these basic ground rules of legislation and interpretation, Blackstone offered an elegant—and for our purposes, stunningly apt—example. “Thus if an act of parliament gives a man power to try all causes [cases], that arise within his manor of Dale;
yet, if a cause should arise in which he himself is party, the act is construed not to extend to that; because it is unreasonable that any man should determine his own quarrel.”
⁸

A SECOND THREAD RELEVANT TO
the proper rules of constitutional interpretation may be found in a fascinating verbal exchange that occurred in mid-August 1787 at the Philadelphia Convention that framed the U.S. Constitution. Delegates Elbridge Gerry and James McHenry proposed the insertion of an explicit clause forbidding Congress to enact ex-post-facto laws—laws, that is, seeking to retroactively criminalize actions that were wholly innocent when done. Two of the Convention’s best lawyers, both of whom would eventually be named to the Supreme Court by George Washington, bristled at the proposal. An explicit constitutional prohibition, they argued, was unnecessary and would reflect poorly on the legal sophistication of the draftsmen. The impermissibility of punishing conduct that was innocent when done was a first principle of justice and the rule of law. As such, it went without saying, they claimed.

Oliver Ellsworth, who would later serve as America’s third chief justice, “contended that there was no lawyer…who would not say that ex-post-facto laws were void of themselves. It cannot be necessary to prohibit them.” Future associate justice James Wilson agreed. The insertion of such an artless reminder would invite negative “reflexions on the Constitution—and proclaim that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so.” Fellow lawyers Gouverneur Morris and William Samuel Johnson concurred that the insertion of an ex-post-facto clause would be an “unnecessary” precaution.

On the other side of the issue stood, among others, delegates Daniel Carroll, Hugh Williamson, and John Rutledge. (Rutledge was yet another lawyer and future Supreme Court justice.) Various state constitutions had included express prohibitions of ex-post-facto laws, and Williamson declared that an explicit clause in the federal document “may do good here, because the Judges can take hold of it.” Ultimately the Philadelphia delegates voted with these men to include an express prohibition on ex-post-facto laws. If some future Congress ever tried to violate first principles, this explicit clause would give judges something hard and concrete—something textual and specific—to “take hold of.”
⁹

Yet no one at Philadelphia was recorded as challenging Ellsworth’s and Wilson’s emphatic legal claim, in the Blackstonian tradition, that even without the clause, the best reading of the Constitution would construe the document as
implicitly
prohibiting all congressional statutes seeking
to impose retroactive criminal punishment. As Blackstone had explained to his legions of readers on both sides of the Atlantic, unless the supreme legislature made crystal clear its specific intent to command an absurd or unjust result, the supreme law was to be interpreted so as to avoid patent absurdity or gross injustice.

Ellsworth and Wilson understood that this well-settled English rule of legal interpretation properly applied to America as well, but with a twist. In England, the supreme legislature was Parliament, and the supreme law was the corpus of parliamentary statutes. In America, the supreme lawmaker would be the American people themselves, who were being asked by the Philadelphia framers to ordain and enact the supreme law of the Constitution. Unless that supreme law—the Constitution—specifically and pointedly authorized Congress to pass ex-post-facto criminal laws, the proper presumption would be that the document withheld this authority from Congress. Such unjust congressional enactments would simply fall outside the ambit of proper “legislative Power” vested in Congress by the Constitution. Blackstone’s own language on ex-post-facto laws harmonized perfectly with Ellsworth’s and Wilson’s remarks. In a chapter on “the Nature of Laws in General,” Blackstone had suggested that ex-post-facto statutes were not even laws, “properly” speaking.
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