09 December 19
Jeffrey Toobin, The New Yorker
Toobin writes: "The outcome of the struggle to impeach President Trump remains in doubt, but one winner in the process is already clear: Supreme Court Justice Antonin Scalia, who died in 2016."
What is originalism? Scalia himself gave a pithy definition. “The Constitution that I interpret and apply is not living but dead, or, as I prefer to call it, enduring,” he said, “It means today not what current society, much less the Court, thinks it ought to mean but what it meant when it was adopted.” All four law professors who testified at last week’s House Judiciary Committee hearing (the three who favored impeachment, and the one who did not) made originalist arguments to explain the meaning of the phrase “Treason, Bribery, or other high Crimes and Misdemeanors,” from Article II of the Constitution, which defines impeachable behavior. The professors canvassed the views of the Framers and trotted out the usual suspects—such as James Madison and George Mason—to support their positions. All three of those called by the Democrats even gave some air time to one of the more obscure Framers, William Richardson Davie, of North Carolina. During the debate on the Constitution in Philadelphia, in 1787, Davie said that, if a President could not be impeached, “he will spare no efforts or means whatever to get himself re-elected.”
Nancy Pelosi, the Speaker of the House, made the same kind of argument on Thursday, when she announced that the Judiciary Committee would draft articles of impeachment. “When crafting the Constitution, the Founders feared the return of a monarchy in America,” she said, and then went on to cite both Madison and Gouverneur Morris, who “feared that a President ‘may be bribed by a greater interest to betray his trust.’ He emphasized that ‘this magistrate is not the king; the people are the king.’ ”
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