At Law & Liberty, Greg Weiner: The Constitution’s Ugly Win. From the introduction:
One need not see President Trump’s impeachment and trial as Congress’ finest hour to recognize it as a respectable moment for the Constitution. The House may have acted hastily; the Senate may have prejudged the case; both bodies may have dug into partisan rather than institutional trenches. But the architecture of the regime worked in its most basic function of refining and enlarging—which entails ultimately respecting—the public’s views.
The Constitution’s purpose is not to do perfect justice. It is to combine the principle of deliberate majority rule with accommodation of intensely held minority views. There is a reason the nation’s Latin motto is e pluribus unum (“from many, one”), not fiat justitia ruat caelum (“let justice be done though the heavens fall”).
In the end, the Constitution is a mechanism for enabling the people to govern themselves without coming apart. That entails an underlying ideal of majority rule but also institutions that encourage accommodation of political minorities. If America is going to remain polarized, and all indications are that it is for the moment, we had best start learning to respect both principles.
RELATED: At Prawfsblawg, Tuan Samahon (Villanova), guest-blogging, asks:
One potential proposition from [the Trump impeachment] that could serve as precedent is that the Senate need not allow any witnesses at any impeachment trial. What if a future accused wants defense witnesses yet the Senate majority finds no constitutional duty to hear from them in order to "try" an accused and instead it elects to convict on the basis of a "coin toss" or its view the accused is a really "bad guy," to invoke Souter's hypotheticals [in Nixon v. United States]?
My tentative thought on this question is that the Senate cannot convict without hearing from defense witnesses (if the defense wants witnesses), at least if defense witnesses were not allowed in the House proceedings. The word "try" in Article I, Section 3 entails hearing from the defense; in the eighteenth-century understanding, it would not be considered a legitimate trial if there was no opportunity to present a defense (as the Sixth Amendment suggests, although that Amendment isn't directly applicable). The Trump precedent isn't to the contrary. The prosecution had witness testimony in the House. And courts can dismiss prosecutions if the prosecution's case is flawed legally or factually. That's still a trial. But conviction without hearing from the defense wouldn't be considered a valid trial now nor in the founding era.
Whether the courts could overrule a Senate that convicted without defense witnesses is a different question. I'm with Justice Souter on this one. The Senate has "sole Power to try" so the trial procedures are committed to the Senate without judicial review. But the Senate still must "try," not do something other than try (like a coin toss). And without a defense it's not a trial. So I would say, on textual grounds, the courts could intervene. But I generally don't think much of the political question doctrine in most of its manifestations, so I'm not entirely unbiased.
Posted at 6:31 AM