America's Unwritten Constitution: The Precedents and Principles We Live By (5 page)

Thus, in constituting senators and the chief justice as the president’s impeachment court, the Founders surely envisioned presidential aspirants as proper judges of sitting presidents. The decisive difference between such figures and the vice president was that a senator or a chief justice would become chief executive only through a standard presidential election, whereas the vice president would
automatically
ascend upon the president’s conviction—he would gain power
solely
because of the judicial verdict of the impeachment court. Giving the gavel to the vice president would therefore create an intolerable conflict of interest; giving the gavel to the chief justice would not.

GAVELS ASIDE, WHAT ABOUT THE
role that Ohio Senator Benjamin Wade, the Senate president pro tempore, sought play as an impeachment judge and juror at Johnson’s trial? In the event of Johnson’s conviction, who would automatically ascend to the powers of the presidency solely because of that verdict? Benjamin Wade.

Recall that, from the moment President Lincoln died and Vice President Johnson moved up to replace him, the vice presidency stood vacant,
and could not be refilled until the next presidential election. (This would change only with the Twenty-fifth Amendment, adopted after President John F. Kennedy’s assassination a century later.) Thus, were the Senate to oust Johnson, someone other than the vice president would need to take over as chief executive. Anticipating scenarios of this sort, the Philadelphia framers had drafted a specific succession clause authorizing Congress to create a statutory line of succession. In 1792, Congress enacted a law placing the Senate president pro tempore first in the statutory line of succession and the House speaker second.
²¹

Initially, we might wonder how America’s written Constitution, which so carefully provided that the vice president should never preside over a president’s impeachment trial, could have allowed almost the same thing—arguably, something even worse—by giving the Senate president pro tempore an actual vote in a presidential impeachment trial, when he, too, could hardly be an impartial judge. In fact, the written Constitution did no such thing. The Constitution’s succession clause required Congress to designate an “officer”—presumably an executive-branch
cabinet
officer—to fill whatever succession gap might open up. The Congress in 1792 simply misunderstood the Constitution’s command and instead specified legislative figures—who were not, properly speaking, “officers” within the meaning of the succession clause.
^*
Stressing the letter and spirit of the key word, “officer,” Congressman James Madison and others opposed the 1792 act on constitutional grounds, but neither Madison nor anyone else at the time explained in detail how the act, in addition to all its other flaws, would pervert the Constitution’s carefully designed impeachment structure. In 1792 lawmakers were not focusing intently on the unusual situation of a double vacancy created by the impeachment and conviction of a vice-president-turned-president, as distinct from many of the other possible scenarios—of death, mental disability, physical disability, kidnapping, resignation, and so on—that might leave the nation simultaneously bereft of both president and vice president.
²²

With this old law on the books, however, Senator Wade found himself in an awkward position at the outset of Johnson’s trial. Senators sympathetic to Johnson demanded that Wade recuse himself in obedience to the venerable
nemo judex
principle. As they saw it, Wade’s status as Johnson’s legal successor made it impossible for Wade to take the requisite impeachment oath to do “impartial justice” and thereafter to sit as a proper judge and juror in what the Constitution itself labeled a “Trial.”
²³

Wade’s defenders countered that his recusal would deprive the state of Ohio of its constitutional entitlement to two votes in the Senate chamber at a particularly important moment. Counterbalancing the venerable principle of
nemo judex in causa sua
was a common-law doctrine called “the rule of necessity.” This rule allowed a judge with an otherwise disqualifying self-interest to hear a case if his participation were truly necessary or if all other judges would likely have a comparable conflict of interest. For example, the Constitution says that federal judicial salaries may not be decreased. Were Congress nevertheless to try to cut these salaries, would every federal judge be barred from hearing a judicial challenge to the cut? Judges over the centuries have answered this question differently; but the modern Supreme Court has proclaimed itself competent to hear such cases under the necessity exception to the
nemo judex in causa sua
principle. Similarly, Wade’s senatorial allies explicitly argued that necessity required his participation, lest his state lose its constitutionally guaranteed equality in the Senate.
²⁴

In theory, Wade could have kept his Senate seat and his full constitutional voting privileges, and also avoided a personal conflict of interest, simply by renouncing his statutory right to succeed Johnson. Yet renunciation would not really have cured the self-interest problem; rather, it would have made House Speaker Schuyler Colfax the constitutional heir apparent, even though Colfax himself had played a prominent role earlier in the impeachment process, when the House in effect had acted as a grand jury, indicting Johnson for alleged high crimes and misdemeanors. A self-interested grand-jury foreman hardly seems much better than a self-interested trial judge or juror. Had
both
Wade and Colfax renounced their succession claims, there would have been no one left to replace Johnson, creating a vacuum that would have only widened the constitutional crisis.
Although Congress was formally free to repeal and replace the 1792 act in 1868, any replacement law would have come about with Johnson’s impending removal in mind. Thus the new law would have lacked the virtues of a succession statute enacted impersonally and impartially, behind a suitably thick veil of ignorance obliging lawmakers to focus on long-term succession principles rather than short-term politics.

In short, no constitutionally perfect option existed in early March 1868. Both Wade’s supporters and his critics made good points, and the real problem was that an old law made no sense, but could not be fixed in time for the trial.

After hours of public debate, the Senate eventually decided to seat Wade on March 6. Wade thereafter sat in judgment over Johnson and at the trial’s end voted in a self-serving way—to convict. Rumor had it that by then Wade had already selected his would-be cabinet. But his self-interested vote did not tip the balance. Johnson ultimately had enough votes to remain in power. The final vote to convict was 35 to 19—just shy of the two-thirds needed to oust Johnson and crown Wade.

Looking back on the Wade affair, late nineteenth-century Americans found little to commend in the flawed 1792 statute that had created the conflict of interest. In 1886, Congress repealed the 1792 act, replacing it with a proper system of cabinet succession that excluded House and Senate members from the line of presidential succession and thereby freed the impeachment process from the specter of self-interested adjudication.

This might seem a happy ending to our saga, but history does not always yield happy endings. In 1947 Congress changed the succession rules yet again, inserting the House speaker and Senate president pro tempore (in that order) ahead of various cabinet officers in the line of succession.
²⁵

THE TAKE-HOME LESSON OF OUR
story thus far is that sound constitutional interpretation involves a dialogue between America’s written Constitution and America’s unwritten Constitution. The latter, at a minimum, encompasses various principles implicit in the written document as a whole and/or present in the historical background, forming part of the context against which we must construe the entire text. The constitutional analysis in the preceding pages has not flowed from a literalistic and clause-bound
reading of the written Constitution, which of course contains no clause that explicitly prohibits the vice president from presiding over his own impeachment trial. But neither has our argument strayed far from the written Constitution. Rather, we have been exploring a variety of unwritten sources that intertwine with the written text—sources such as Black-stone’s canonical
Commentaries
summarizing late eighteenth-century rules of interpretation; Founding-era speeches and essays; preconstitutional and postconstitutional practices and precedents; principles and purposes implicit in various patches of constitutional text; and, above all, structural deductions from the constitutional system viewed holistically.

Standing alone, the written Constitution would appear to be inadequate. Were it read in a literal and flatfooted way, some of its clauses would seem indeterminate or even perverse when measured against the larger purposes of the document itself.

Standing alone, an unwritten Constitution would appear to be illegitimate. Were it to degenerate into an assortment of “constitutional rules” conjured up out of thin air, it would do violence to the fundamental choice of the American people over the centuries to ordain and amend a single written text that sets forth the nation’s supreme law.

Neither America’s written Constitution nor America’s unwritten Constitution stands alone. Rather, the two stand together and support each other. The unwritten Constitution, properly understood, helps make sense of the written text. In turn, the written text presupposes and invites certain forms of interpretation that go beyond clause-bound literalism.
²⁶

If anyone thinks that all the interpretive puzzles we have been pondering would have happily disappeared had the framers simply been more textually explicit by inserting into the written Constitution a clause declaring that “no man may be a judge in his own case,” think again. A clause along these lines would hardly have been self-defining. Would such a clause have (implicitly) recognized a countervailing principle of necessity? When would such a counterprinciple, whether implicit or explicit, come into play? (Recall that some judges have hesitated to sit in cases involving issues of judicial compensation, while other judges have sat without compunction; and that senators in 1868 sharply disagreed about whether Wade’s participation in the Johnson impeachment could be justified by
“necessity.”) How broadly or narrowly should we define the judge’s “own case”? For instance, what about a lawsuit where a judge’s brother was the lawyer for one of the parties? (In
Dred Scott v. Sanford
, Justice Benjamin Curtis sat in judgment and famously dissented, voting to support the legal claims of plaintiff Dred Scott, whose lawyer was the justice’s brother, George Ticknor Curtis. Today, this decision to sit would probably set off an avalanche of criticism by legal ethicists.) How broadly should we define being a “judge”? (While Chief Justice Marshall did not sit in judgment in the 1816 Virginia land case of
Martin v. Hunter’s Lessee
, he did draft the legal petition to his colleagues in his own quite recognizable handwriting, and he may have discussed the relevant legal issues with his brethren in their common boardinghouse. Here, too, modern legal ethicists would probably insist on stricter standards.) Thus, even an explicit textual affirmation of the
nemo judex in causa sua
principle in the Constitution itself would have left open a range of questions whose answers could not simply be deduced from the words themselves.
²⁷

To see the limits of clause-bound textualism from another angle, recall that the Constitution does contain an explicit ex-post-facto clause. Even so, the clause has given rise to many questions on which the text is hardly decisive. What if a law does not change the substantive rules of criminal conduct but does retroactively modify evidentiary rules of proving criminality—say, by allowing certain kinds of evidence that were inadmissible at the time the crime was committed? What if a law retroactively authorizes a harsher punishment for conduct that was universally understood to be a heinous crime at the moment of its commission? What if a law merely creates a new set of courts that did not exist at the time of the crime? At the Philadelphia Convention, James Wilson overstated his case when he proclaimed that an explicit ex-post-facto clause would be “useless.” If nothing else, the clause has usefully eliminated whatever small uncertainty might have existed about certain core cases involving retroactive criminalization of actions that were wholly innocent when done. But Wilson was right to say that, even with the inclusion of an explicit clause, the written text would not suffice to answer all hard constitutional questions: “Both sides will agree to the principle & will differ as to its application.”
²⁸

At these junctures, where isolated clauses shade off into indeterminacy or perversity, we must raise our sights and see the big picture: the Constitution as a whole.

TO BETTER UNDERSTAND THE KIND
of interpretive approach needed when we seek to find the implicit Constitution hiding behind the document’s explicit words, let’s now undertake a completely different case study. Having just worked through various unusual constitutional issues that arose at a unique hour of American history—the opening moments of the first-ever presidential impeachment trial—some readers might wonder whether the tool of holistic reading is of help in handling the more mundane matters that routinely arise in ordinary courtrooms. In fact, this tool did much of the work in perhaps the most canonical Supreme Court case ever decided. Precisely because this great case had nothing to do with presidential impeachment, and involved a wholly different set of issues—issues concerning the breadth of congressional lawmaking power and the reserved powers of states, issues that continue to arise in routine litigation in twenty-first-century courts—a close look at the Court’s landmark decision will make clear that the technique of reading between the lines has widespread application.