“...nature of language makes the fact of law possible and justifies what lawyers do when they interpret the law. Consider some of these linguistic characteristics of law and how they apply to the question of impeachment...You can go back and forth this way about the impeachment clause referring to “high crimes and misdemeanors”. Which is the operative word?”
There are sociological and linguistic insights into the nature of law. Sociologists tend to find the meaning of the law in its functions. Max Weber offers a sociological understanding of law when he says that laws cannot vary too much from the customs of a society. If they do, the people will rebel against it while revolutionary regimes, on the other hand, impose legal codes that are out to do away with extant customs and replace them with a reign of reason. For his part, Georg Simmel says that law is a technique for conflict resolution. It gives a third party power to make a decision between contending parties and these decisions and the legal code behind them are designed to do away or mitigate the antagonism between the parties. That is why there are fines and ways for negligent companies to correct their behavior. On the other hand, for the most part, lawyers look to the linguistic characteristics of law. That means they look to the ways in which the nature of language makes the fact of law possible and justifies what lawyers do when they interpret the law. Consider some of these linguistic characteristics of law and how they apply to the question of impeachment.
A tacit linguistic definition of law is available in Yale School of Law Professor Akhil Reed Amar’s “America’s Unwritten Constitution”. Law has to be understood as an abstract proposition. That means a law is always applicable to every event within its definition and so it is necessary to struggle with when there are exceptions. Although Amar doesn’t use this example, the Ten Commandments display the characteristics of law when it is considered to be a set of propositions. The dictate “Thou shalt not kill” would, on the face of it, seem to bar all killing, including executions and those killings done by soldiers. The commandment, however, is usually understood to bar only murder, which is an illegal taking of life. How is such a broad set of exceptions established? One might look at the historical record, or the legislative history of the statute but those are, obviously, not available. Rather, one looks at the function of those of the Ten Commandments that bar one or another sort of criminal or quasi-criminal behavior: a bar on robbery, a bar on adultery, and even a bar on wanting to take over someone else’s wife. All of these prohibitions work to maintain social order in most any society, and so their example suggests that murder is forbidden while legal killing is not, for to bar soldiers from killing would put a people in danger. Note that the Ten Commandments do not reach so far as to bar behavior which it is unreasonable to try to control. It does not bar poverty nor does it bar lust. It will wait for the Prophets to include poverty as one of the things about which God will judge a society, and it waits for the New Testament to come to consider lust a bad thing.
There are any number of ways to struggle with the question of how to declare an exception an exception: historical precedent, logical parallelism, legislative history, what stands to reason. Amar uses the Constitutional provision that the Vice President cannot preside over the Senate during an impeachment trial to prove his point, stipulating as it does that the Chief Justice is to preside in his place. The reason Amar offers for this provision is that for the Vice President to preside would be to have an interested party sit as a judge, which is contrary to the principle of law whereby a judge should not have an interest in the case. But it could be argued that such a principle is very vague in that there is a degree of conflict between virtually any judge’s background and interests and his impartiality. Donald Trump challenged the Judge in the Trump University case on the ground that he could not be impartial because he was of Mexican descent. But, according to Amar, there is another legal principle which also applies, which is that on necessity, judges can serve even if they have a conflict of interest. You cannot disqualify for cause all or most of the Senators who serve as the jury in impeachment cases because then there would be few judges left and even if most were retained, some of the states would be deprived of their representation. So Amar gets around to quoting Blackstone and other authorities to claim that the Vice President is different because he, as a constitutional officer, would profit from the conviction of a sitting President and so it makes sense to apply the idea of impartiality. This seems to me a tendentious argument because what is good for the goose is good for the gander and so if others can be exempted from being excused why not also the Vice President? You can go back and forth with the issue, but that is the way it is with the law: you are trying to say something essential about the meaning of the words in a statute or in the Constitution but you do so by very elliptical means.
You can go back and forth this way about the impeachment clause referring to “high crimes and misdemeanors”. Which is the operative word? It could be “high”, in which case impeachment is authorized for any action that a President takes that is serious, and that would include undermining the continuity of American foreign policy, but if that were the case, then the President serves, as does a Prime Minister in a parliamentary democracy, at the sufferance of the Congress, even if he has been legitimately elected. That is hardly what the Founding Fathers could have meant. Or the operative word could be “crime”, in which case the President would have had to do something materially criminal, such as committed a murder or engaged in bribery. Or the operative word could be “misdemeanor”, in which case it means a wrong not carrying with it moral turpitude, a meaning which might be applied to Trump if he were brought up on charges of having profited from Arab sheiks staying at his hotel in Washington, D. C. so as to curry favor with him. The law opens up the world to discourse of a special kind, with its own special vocabulary, rather than closes down discussion by reaching incontestable conclusions.
Reading Amar’s book, which is logical and learned if tendentious in its argumentation, led me to think of another linguistic characteristic of law: a law must be close to its obvious meaning. Otherwise, it seems contradictory or just so much flim flam, even if one can make an argument that the terms involved are terms of art, like that a corporation is a person, and so the interpreter of law is allowed to avoid its clear meaning. People challenge that a corporation is a person and the issue of whether corporations have the right of free speech remains an open question. Another example of a tendentious reading that becomes acceptable concerns the Thirteenth Amendment, which abolished slavery. What Southerners did was insist on labor contracts with their ex-slaves so that the ex-slaves would have back their old jobs working in the fields, this all the more necessary for the ex-slaves because the federal government had not confiscated enough Confederate land so as to distribute it to the ex-slaves so that they could set themselves up as independent farmers. According to Richard White’s recent “The Republic For Which It Stands”, the labor contracts were very severe, some requiring lifetime service, and so really the reestablishment of slavery under another name. It would have been appropriate for ex-slaves to sue their employers and argue that these labor contracts were slavery by another name and so forbidden by the Thirteenth Amendment. That would have been a fruitless endeavor because the Southern courts were in the hands of ex-Confederates and so the ex-slaves would not have prevailed in court even though the logic of the law was on their side. So extremely oppressive relations between ex-slave owners and their ex-slaves became acceptable even though it violated the clear intent and meaning of the Thirteenth Amendment.
The reason that logic prevailed was because upholding the meaning of the Thirteenth Amendment as outlawing conditions that were the equivalent of slavery as well as slavery would have flown in the face of the aforementioned Weber principle: the customs of slavery were too deep to be abolished unless ex-confederates were removed from office and a new culture introduced into the South, which was a very difficult thing to do, given that the slave culture had existed for 250 years. Remember that Nazi culture had lasted only twelve and so it was possible to move Germany towards democracy with considerable ease. On the other hand, It took until the mid-Sixties, a hundred years after the Civil War, for the abolition of discrimination in the South to start to happen and the job is not yet finished.
The same Weber problem applies to any contemplated impeachment of President Trump. We have three precedents: Andrew Johnson, where the motivation was clearly political, and so a case of whether impeachment is simply a way to get rid of an unpopular President; Richard Nixon, who was clearly part of a plot to perpetrate and cover up a felony, and so a crime; and Bill Clinton, who had committed maybe a misdemeanor that the Senate found to be a frivolous basis for putting him out of office. What of Trump? Has he so moved the bounds of being President that his guilt would only be of a breach of etiquette that did not exist before he acted boorishly towards colleagues and any number of American groups, including women and Hispanics? Would the American people accept that collusion with the enemy was serious enough to warrant putting him out of office, or should he be let off with a warning? If the American people don’t accept that his impeachment and conviction is legitimate, then it should not happen, and Senators are as fit judges as anyone of what will fly as a legitimate interpretation, in the minds of the American people, of the meaning of the impeachment clause.