Advance Sheet. Impeachment and Original Intent

• Author: Robert E. Shapiro
• Pages: 58-61

Advance Sheet

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 58

ROBERT E. SHAPIRO

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.

“We must never forget that it is a constitu-

tion we are expounding.” Memorable words,

surely. Every law student has heard them,

and most studies of constitutional jurispru-

dence sooner or later find themselves invok-

ing this famous injunction of Chief Justice

John Marshall in McCulloch v. Maryland.

But does anybody actually know what it

means? What was the great chief justice

getting at? He tells us in the immediate af-

termath of this epigrammatic utterance that

a “constitution” is not a code of laws and

should not be treated as one. OK, but if we

know what it’s not, do we know then what

it is? Or how it should be approached?

At least one commentator has thought

not, deeming Marshall’s aphorism a

“much admired and essentially vacu-

ous bon mot.” Perhaps he has a point.

Marshall seems to say that we, or at least

his contemporaries, should be well famil

-

iar with constitutions, even if their spe-

cial character is sometimes forgotten. In

Marshall’s day, only the British among

nations were said to have had one, and it

was thought to be unwritten, at least in

the sense that the various laws compris-

ing or bearing on it were incomplete and

uncodified. So this doesn’t tell us much

that’s useful for dealing with our fully in

-

tegrated, written document. It’s a kind of

a document that needs “expounding,” to

be sure, but what that is exactly is never

said. Just a highfallutin 19th-century way

of saying “applying” or “ruling upon”? Is

“expounding” something necessary only

when the Constitution is new and as yet

undeveloped? Or does it always go with a

“constitution” and thus is something still

necessary today?

In the end, it must be said that

McCulloch answers these questions im-

perfectly, not to say obliquely, if at all.

Marshall shows us what he meant only

by doing what he did, which was to deter-

mine from the purposes of the “Necessary

and Proper” Clause what its meaning was

and how it should be applied. This is not

nothing, but we seem to need more. And

never more so than at present.

Indeed, it was one of the most strik-

ing elements of the second impeach-

ment proceeding against former presi-

dent Donald Trump that it showed how

what might be called “expounding the

Constitution” can be, and is, an urgent

necessity. During that process, arguments

flew hither and thither regarding what

the Constitution means and what the

founding fathers intended in the case

of the several provisions relating to im-

peachment of a president, without much

of a resolution. Public officials called upon

to address the weighty responsibilities

of constitutional decision-making and

pundits weighing in on the nightly news

shows or streaming their commentaries

all found themselves expounding upon

the Constitution in a knowing but often

unpersuasive way. The public looked on,

with perhaps a little less ideological fervor,

wondering what it is our system allowed

or prohibited. The process hardly seemed

satisfactory and failed to produce any con-

sensus or certainty.

Nor was this the first such occasion,

even for contemporary times. During

the Nixon impeachment proceedings,

and those for former president Clinton,

and even the first Trump impeachment,

the phrase “high crimes and misde-

meanors” captured the attention of the

cognoscenti and an interested public

alike. “Expounding the Constitution” in

those cases led easily to the conclusion

that “misdemeanors” was not intended

to be, well, misdemeanors. Instead, the

word had to be taken in context, within

the technical phrase “high crimes and

misdemeanors.” But what were those?

The commentators, then as now, tried

to outdo each other in explaining what

the founders had in mind, offering evi-

dence from not just the text but the his-

tory of the document, the similar phrase

in English procedure, and all manner

of other sources, “expounding” the

Constitution in these myriad ways.

IMPEACHMENT AND

ORIGINAL INTENT