The impeachment discussions are perfect examples of the recurring and insoluble interpretive issues that prevent textualism from controlling constitutional interpretation.
The Constitution expressly uses “sole” regarding impeachment in two places. The House has the sole power to impeach, and the Senate has the sole power to try. This is exclusive language. The Constitution also provides that punishment “shall not extend further” than to the two specified punishments. This is limiting language.
Separately, the Constitution provides that certain officials shall be removed for committing certain offenses. But there it does not use “sole” or “not extend further” or any other exclusive or limiting language. Expressio unius requires that the lists of impeachable officials and offenses are non-exclusive and non-limiting. Yet many argue that textualism requires the opposite, relying on a variety of non-textual approaches like period debates and impeachment practice.
Moreover, the First Congress wielded disqualification as a statutory punishment for offenses by private citizens and government officials alike. For example, a 1789 statute disabled anyone who assisted in evading customs laws “from holding any office of trust or profit under the United States, for a term not exceeding seven years.” A 1790 statute disabled anyone convicted of bribing judges and the judges themselves from ever holding “any office of honour, trust or profit under the United States.” The Constitution lists bribery as an offense for which the Senate may impose the disability. That does not mean that conviction after impeachment is the exclusive ground for imposing disability as a punishment, any more than listing certain officials makes them the exclusive group subject to impeachment or listing certain offenses makes them the exclusive grounds for impeachment. The Constitution’s text allows at least two different procedures for disabling officials and private citizens. The first is statutory, uses the regular prosecutorial machinery, and allows the President to remove the disability by pardon. The second is constitutional, uses impeachment by the House and trial by the Senate, and does not allow the President to remove the disability by pardon.
The Constitution’s text does not resolve the questions debated here. Nor does history. Views differed on whether Blount was subject to impeachment at the time. But he was in fact impeached. We can only speculate on the reasons for each Senator’s vote not to try the case. But we know that a majority of the House interpreted the Constitution to allow his impeachment. The lessons of history are that we cannot rely on history—or text.
Posted at 11:17 AM