The Originalism Blog

The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law

October 17, 2014

Buckner Melton: In Blount, the Senate Never Said that Senators Aren’t Impeachable
Michael Ramsey

Buckner F. Melton Jr. (Independent) has posted Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren't Impeachable (Quinnipiac Law Review, Vol. 33, 2014 [invited response], forthcoming) on SSRN.  Here is the abstract:

This paper responds to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014) (available on SSRN).

The Senate motion in Blount that supposedly stands for the proposition that legislators aren’t impeachable — the motion to dismiss the House’s Blount impeachment — contains no subtleties to trap the unwary; no intricate analysis is needed. The frequent claim — made by both academic historians and lawyers, including Mr. Cassady — that the Senate decided, in the Blount case, that senators aren’t civil officers, or that members of Congress aren’t subject to impeachment, is simply flat-out wrong. Yet people keep on making it.

My main point in this response to Mr. Casssady is simple: If senators can be impeached, then the notion that an impeached senator can be removed from the Senate but not disqualified from returning to the Senate seems counterintuitive. And if senators can be barred from future Senate service, then so should all convicted and disqualified impeachment defendants, whatever their government position.

This paper will appear with 3 other responses to Mr. Cassady — by Professors Peter C. Hoffer, Brian C. Kalt, and Seth Barrett Tillman. (The latter two responses are posted on SSRN in draft form.)

Via Seth Barrett Tillman, who comments:

Melton’s (maximalist) position is that the Constitution’s “office” language (i.e., at least that language relating to impeachment and disqualification) extends to Senators and to other elected officials. My (minimalist) position is very different. I have argued that the Constitution’s “Officer of the United States”-language and “office … under the United States”-language reach only appointed officers, and do not encompass any elected officials (e.g., President, Vice President, members of Congress, and federal electors). That said, I have a deep and abiding respect for Melton’s paper and evidence, which is based on careful analysis and early American materials. This is an important paper by the leading authority on the Blount impeachment. Although a good many academics have assumed that the maximalist position is correct or have based their support on a cursory analysis of text, history, precedent, and structure, Melton’s article is the first fulsome reasoned defence of the maximalist position.

Additionally, Melton has argued that a wide array of a scholars (including historians and legal academics) have misstated the Senate’s holding in Blount. On this point, he and I are ad idem. 
 
As an aside, Buckner Melton Jr. is the author, among other works, of The Quotable Founding Fathers: A Treasury of 2,500 Wise and Witty Quotations from the Men and Women Who Created America (Potomac 2005).
 
As a further aside, an interesting footnote from the article:
 
The title of this article is chosen not only for bluntness in the face of a widespread scholarly misconception, but also to educate non-southerners in the typical southern pronunciation of the surname Blount. I further have had it on good authority from some of William Blount's descendants, including one William Blount Walker of Macon, Georgia, that the pronunciation indeed rhymes with blunt.
 
I didn't know that.

Posted at 6:24 AM