America's Unwritten Constitution: The Precedents and Principles We Live By (4 page)

As finally proposed by the Philadelphia framers and eventually enacted by the American people, the Constitution’s opening sentence proclaimed that one of the document’s paramount objects was “to establish Justice.” Here was additional textual support in the written Constitution itself for the Ellsworth-Wilson position, following Blackstone, that all the document’s clauses had to be construed against the backdrop of the first principles of justice. Such principles could be contravened only by pointed textual language or undeniably clear enacting intent.

LET
’
S NOW WEAVE TOGETHER THE
threads on the table. Given the constitutional clauses and bits of historical evidence that we have considered thus far, the Constitution as a whole should not be construed to allow a vice president to preside over his own impeachment trial. The image shocks our widely shared sense of fairness and justice. No one should be a judge in his own case. The result seems absurd. The point is elementary and elemental. It goes without saying.

Had the Constitution specifically commanded such a result in pointed language—say, in a clause proclaiming that “the vice president shall preside over the Senate
even in cases of his own impeachment”
—then there would be conclusive textual evidence that America’s sovereign, the people, had specifically focused on the matter and had decided that the result was neither unjust nor absurd. But Article I, section 3, does not speak with this kind of unmistakable specificity.

If it could be shown that the Constitution’s framers and ratifiers generally understood its bland rule about the Senate’s regular presiding officer to apply even when that regular presiding officer was himself being impeached, then deference to this widespread understanding might be warranted. However, there is no evidence that Americans envisioned and embraced this result while drafting and ratifying this clause. On the contrary, there is strong reason to presume that they thought that Blackstone’s approach—summarizing and illustrating the background interpretive canons of Anglo-American law—would obviously apply here. There is no relevant difference between Blackstone’s lord of the manor Dale and America’s vice president. In neither case should nonspecific language be construed to authorize a grotesque perversion of fair procedure.

ONE MORE THREAD ADDS FURTHER
strength and texture to our emerging argument against vice-presidential self-dealing. It turns out that Article I, section 3, contains yet another relevant passage: “When the President of the United States is tried [in the Senate, sitting as an impeachment court], the Chief Justice shall preside.”

True, these words say nothing explicit about the vice president. But if we give the matter even the slightest thought, it quickly dawns on us that the central purpose of this passage was to oust the vice president from the chair. In presidential impeachment trials, the chief justice should preside
precisely because the vice president should not
. This central purpose lay visible on the surface of the earliest version of this clause at Philadelphia, before the clause was rewritten for stylistic and organizational reasons: “The Vice President shall be ex officio President of the Senate, except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside.”
¹¹

The reason that the vice president should never preside in a presidential
impeachment also springs to mind upon a moment’s reflection: The vice president would have an intolerable conflict of interest. The problem would not be, as some modern observers might initially assume, that the vice president would be unduly inclined to favor his running mate, the president. Rather, the problem at the Founding was the exact opposite: The vice president was apt to be the leading
rival
of the president. Under the framers’ version of the electoral college, presidential and vice-presidential candidates did not formally run as a partisan ticket. (That system emerged only after the ratification of the Twelfth Amendment in 1804.) Whoever came in second in the presidential election automatically became vice president—and would in turn automatically move into the top spot upon an impeachment court’s conviction of the president. No man with so much to gain by a guilty verdict should preside over the trial.
¹²

If the vice president may not sit in the chair when the president is on trial, surely it follows even more strongly—
a fortiori
, as lawyers would say—that the vice president may not properly preside over his own trial.
¹³

Granted, a brazen legalistic counterargument might be made on behalf of this gross impropriety, as follows: The Constitution could have explicitly provided that the vice president would be ineligible to preside whenever
either
the president
or the vice president himself
was on trial, but the document did not so provide. The framers apparently did focus on the conflict-of-interest problem, and they decided that the problem existed only in cases of
presidential
impeachment.

Arguments like this give legal reasoning a bad name. There is simply no evidence that the framers or ratifiers clearly envisioned and specifically endorsed the ridiculous image of a vice president presiding over his own trial.

At Philadelphia, the impeachment debate centered almost entirely on issues of
presidential
impeachment. The very idea of creating the position of vice president did not emerge until the last days of the Convention, and what little attention this office did receive was often subsidiary to other issues of more pressing concern to the delegates. Even without access to then-secret Philadelphia records, a careful eighteenth-century reader could deduce from the final text itself that the vice presidency had received incomplete attention in the drafting process. While expressly authorizing compensation for House and Senate members in Article I, for presidents
in Article II, and for Supreme Court (and other federal) judges in Article III, the document failed to even mention compensation for the vice president. Surely we should place no weight on this thoughtless omission; it would be silly to deny compensation to vice presidents on the theory that the document demands this odd result by negative implication. So, too, we should place no weight on the omission of an explicit recusal clause for vice presidential impeachments; it would be silly to read the chief-justice clause as authorizing, by mere negative implication, a vice president to sit in judgment of himself.
¹⁴

In the year-long ratification process, there is no record of anyone saying that the vice president would be obliged to vacate the Senate chair
only
in cases of presidential impeachment. At no point did the Constitution’s friends champion the odd idea that although a vice president should obviously not preside when he stood to gain an office, he nevertheless should preside when he stood to lose one.

Instead, leading Federalists explicitly invoked the
nemo judex in causa sua
principle in a variety of contexts and with a forcefulness that confirmed that this principle was a premise of the entire constitutional project. In
The Federalist
No. 10, James Madison, writing under the pen name “Publius,” declared that “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” In
The Federalist
No. 80, Alexander Hamilton (also writing as “Publius”) reiterated and broadened the claim: “No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias.”
¹⁵

Had the specific issue of vice-presidential impeachment procedure ever come into sharp focus in the ratification debates, an able lawyer such as Wilson or Ellsworth would have had at his disposal a decisive Blackstonian defense of the constitutional text as actually drafted—a defense running something like this: In the case of a man literally presiding over his own case, it obviously went without saying that such a thing was impermissible.
Nemo judex in causa sua
was a foundational feature of civilized legal systems—not merely in late eighteenth-century America and England, but across the planet and over the centuries. The very image of a man presiding at his own trial bordered on the ludicrous: No one could be in two places at
once—both in the chair and in the dock. Even if such eccentric geometry were physically possible, it would be legally absurd. To have explicitly prohibited such a thing would have been worse than a waste of ink. Had the draftsmen at Philadelphia dignified this scenario with an explicit textual prohibition, they would have invited public ridicule and needlessly cluttered the document. In the case of a
presidential
impeachment, however, the matter was not so self-evident. Strictly speaking, a vice president in the Senate chair would not be judging his own case, but someone else’s. Here, the impropriety might be somewhat more debatable, and the application of the
nemo judex in causa sua
principle perhaps more contestable. So it made good sense for the Constitution to specifically resolve that issue in an explicit clause ousting the vice president from the chair and filling it instead with a more impartial officer, the chief justice.
¹⁶

ON MARCH
5, 1868,
WHEN AMERICANS FIRST WITNESSED
Chief Justice Salmon P. Chase presiding over the Senate in a presidential impeachment trial, some may have wondered whether the framers had specified the best officer for such an occasion. As many of the politicians and spectators who packed the Senate chamber understood, Chase himself yearned to be president and had long bent his enormous energies toward that end. At the 1860 Republican Convention in Chicago, Chase had finished third in the presidential balloting. Early in 1861, Lincoln had tapped Chase to be his treasury secretary. But even while serving under Lincoln, Chase had dreamed of displacing him. The ubiquitous one-dollar greenbacks issued by the wartime Treasury Department had featured Chase’s visage, not Lincoln’s. In the opening months of 1864, Chase had angled, unsuccessfully, to position himself atop the November ticket.

Before naming Chase to the Court in late 1864, Lincoln had expressed “only one doubt” about Chase’s fitness for the job. “He is a man of unbounded ambition, and has been working all his life to become President. That he can never be; and I fear that if I make him chief-justice he will simply become more restless and uneasy and neglect the place in his strife and intrigue to make himself President. If I were sure that he would go on the bench and give up his aspirations and do nothing but make himself a great judge, I would not hesitate a moment.”
¹⁷

Lincoln knew his man. Chase continued to hunger for the top executive post after he had secured the highest judicial job. Even as Johnson’s trial was unfolding, its presiding officer was making plans to seek the upcoming Democratic nomination for the presidency—the very spot that the defendant was hoping to secure for himself.
¹⁸

Was Chase, therefore, under an unwritten constitutional obligation to recuse himself at Johnson’s impeachment trial? Should the Senate have tried to muscle him out when he did not stand down? Had we only an unwritten maxim,
nemo judex in causa sua
, to guide us, the answer might seem uncertain.

But the letter and spirit of the written Constitution made plain that Chase did not need to step aside. Merely harboring presidential ambitions—even intense and plausible presidential ambitions—was not a constitutionally disqualifying conflict of interest. Rather, this abstract sort of conflict of interest was obviously built into the very structure of the impeachment machinery designed by the framers.
This
kind of conflict of interest
was
something that America’s supreme legislature, the people,
had
doubtless envisioned and embraced as a
necessary
part of the
main object
of Article I’s impeachment clauses.

While the Constitution structured presidential impeachment as a judicialized proceeding—rife with the language of “Trial,” “Case,” “Judgment,” and “convict[ion],” and to be presided over by the nation’s highest judicial officer—the document also placed power to administer this judicialized system in the hands of regular politicians in the House and Senate. In the impeachment process, the president’s trial bench and jury would consist not of professional judges or common citizens, but of uncommon political leaders, many of whom would likely harbor strong political ambitions—including, in some cases, presidential aspirations. From the outset, the Senate was expected to function as a nursery for future presidents and presidential aspirants. As the Founders’ system predictably played out, most of the early presidents (including Johnson himself) had previously served as senators.
¹⁹

Nor were chief justices expected to be men wholly uncontaminated by presidential hopes and dreams. At the Founding, presidents were widely seen as executive magistrates akin to judicial magistrates. Before the Philadelphia framers finally hit upon the idea of creating a standing office of
vice president, delegate Gouverneur Morris had proposed that in case of presidential death or disability, presidential powers should devolve upon the chief justice. The men who eventually became America’s first two chief justices, John Jay and John Rutledge, had both received substantial support in the presidential election of 1789, finishing third and fourth, respectively—directly behind George Washington and John Adams. America’s fourth chief justice, John Marshall, was probably the Federalists’ most eligible presidential prospect at the time of his nomination and confirmation. Recent scholarship suggests that, only days before his nomination to the Court in early 1801, Marshall, who was then secretary of state, had schemed to secure the presidency for himself in the constitutional confusion created by the tangled Adams-Jefferson-Burr election of 1800. If we consider more recent history, it is worth remembering that Chief Justice William Howard Taft was an ex-president, that Chief Justice Charles Evans Hughes had been the Republican Party nominee for the presidency, and that Chief Justice Earl Warren had been the Republican Party nominee for the vice presidency.
²⁰