Live shot of originalists trying to figure out if Trump committed impeachable offenses.
While discussing the impeachment of Donald Trump, I’ve been guilty of this bit of intellectual softness. Sometimes, when trying to deal with Republicans who are feigning ignorance over whether Trump has committed impeachable offenses as defined by the Constitution, I fall into making various arguments about what the “founding fathers” intended and believed and thought about impeachment when they wrote the language of the Constitution.
I know this is bad and wrong. I know originalism is stupid. I… do not much care what a bunch of white colonists believed and thought in 1787. Even if I did care, I know it’s fundamentally intellectually dishonest to claim to “know” what these revolutionaries and slavers actually cared about hundreds of years ago. I never met Alexander Hamilton. He could have written Federalist 66 as a dope-ass diss track for all I know. Originalists rest most of their arguments on the belief that they have a Ouija board that tells them exactly what the Founders thought, and wouldn’t you know it, the Founders always thought precisely what the Republican Party needs them to think. But I don’t play that game. I’m literally better than that.
Fordham history professor Saul Cornell has an important article out today, reminding me and people like me to be the better people that we are. If you reject originalism because you understand the inherent weakness of its tenets, don’t fall into the trap of making originalist arguments just because you’re frustrated with Republican trolling. From the New Republic:
Another problem with originalism’s approach to history is its static (which is to say, decidedly ahistorical) view of the past. American legal and constitutional history did not pause in freeze-frame when the Constitution was ratified in 1789. And constitutional meaning has likewise not remained frozen over the course of American history, a point that the Founding generation well understood. Even James Madison came to recognize that constitutional meaning would evolve, both through the decision of the courts and through actions taken by the people themselves beyond the formal jurisdiction of the courts. In the 1790s, Madison vigorously opposed Alexander Hamilton’s belief that the Constitution allowed the federal government to charter a bank, but by the era of the War of 1812 he had come to realize that such an institution was a necessity—and all branches of the federal government and the American people had also embraced the federally chartered financial system in a host of ways by then.
Finally, in contrast to originalists, liberal legal scholars need to recognize that interpreting the Constitution inevitably requires some form of translation—taking concepts rooted in the realities of the eighteenth century and trying to make sense of them in our own.
Yes, texts like Federalist 66 and other tests and statements from the likes of Hamilton and Madison are parts of the story here, but not the whole story. Every time people on the left wave around some historical document or musing like it is “dispositive,” we’re doing the Republican work of ignoring the larger context of our modern world.
Yes, “bribery” is written right into the Constitution as an impeachable offense. When faced with this inconvenient text, “textualists” do what they always do when they don’t like the text, which is to muddy the waters by some other every more ancient definition of “bribery” to argue their way around it. It’s tempting to counter these false prophets with your own reference to historical definitions of bribery, but that’s playing the game on their ground. We have a modern definition of bribery, and a modern statutory definition of bribery, that do all of the work of showing how Trump is guilty of bribery without trying to divine how Ichabod Crane might have defined the word.
It’s always worth it to fight originalists, but it’s never worth it to fight like originalists. With all due respect to “liberal” originalists like Akhil Amar, the oringalist tool has one function: To ossify the interpretation of law for the protection of white male patriarchy. It cannot be repurposed for higher, better uses.
Sometimes, even I need to be reminded of that.
Don’t Embrace Originalism to Defend Trump’s Impeachment [New Republic]
Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.