Having argued that the absurdity rule should apply to the situation
where the Constitution allows the Vice President to preside at his own
impeachment trial, let me now address more precisely what I think the
effect of the absurdity rule on this issue is. For my earlier posts on
this issue see here and here.
As Mike Ramsey says,
the Constitution discusses the issue with three related sentences of
Article I, Section 3. (1) “The Vice President of the United States
shall be President of the Senate, but shall have no vote, unless they be
equally divided.” (2) “The Senate shall have the sole Power to try all
Impeachments.” (3) “When the President of the United States is tried,
the Chief Justice shall preside.
Before applying the absurdity
rule, one must determine how the constitutional text (without the
absurdity rule) applies to the issue of the Vice President presiding at
his own impeachment trial. It would seem that the Vice President being
President of the Senate means that he would always have the power to be
the presiding office. (At the time of the Constitution, the office of president usually was the presiding office of a multimember group of some kind.)
At
the time of the Constitution, there was a principle – universally
affirmed – that a person should not be a judge in his own case. See,
e.g. Federalist 10. What was disputed, however, was in what situations
it applied. But while the principle arguably might not apply as to
voting on legislation that affected your interests (such as taxes), one
can strongly argue that this principle must apply to an impeachment
trial – which the Constitution literally treats as a trial. In
particular, one might argue that what was historically meant by a trial
does not involve a proceeding where the defendant is also the presiding
officer. Under this view, the constitutional text (without the
absurdity rule) would exclude the Vice President from presiding at his
own trial. There is more force to this argument than people normally
admit. In fact, the more I think about it the more I am attracted to
it. But I still think that most originalist textualists would not
accept it as the best reading of the meaning of trial and so let's move
on to applying the absurdity rule.
As I have said,
Chief Justice Marshall’s statement of the absurdity rule asks whether
all or virtually all people would reject the apparently textual result
in a case. If we are confident that all would reject it, then the
absurdity rule should apply. I believe that all would reject having the
VP preside at his own impeachment trial both at the time of the
Constitution and now, especially because the wide acceptance of the
principle of not being a judge in one’s own case. Remember, the
question is not whether everyone favors departing from the text, but
rather whether everyone rejects the result.
How then to apply the
absurdity rule here? This is always the hardest part of the matter,
because there is usually more than one possible way to depart from the
text. There is support, I believe, for departing from the text as
little as possible to avoid the absurd result. Here the smallest
departure would involve interpreting the term trial as excluding the
defendant from presiding at his own trial. The argument here is not
that this is the correct textual reading of the term (although as I
argue above it might be). Instead, the argument is that the absurdity
rule indicates reading trial in this manner. This is the smallest
departure because it takes a textual term, that might have meant this
but probably does not, to mean this.
This understanding would also
be consistent with the Constitution’s decision to specifically provide
that the Chief Justice should preside at the President’s impeachment
trial. The Constitution needed to specifically replace the Vice
President as the presiding office during the impeachment of the
President because having the Vice President preside would not precisely involve
being a judge in his own case. (The Vice President would not
be on trial.)
I hope that I have not gone on too long about this
matter. Although it does not currently involve an important political
issue, it raises important matters of constitutional interpretation.
(Cross Posted at the Liberty Law Blog)
Posted at 7:29 AM