America's Unwritten Constitution: The Precedents and Principles We Live By (83 page)

1
    
New York Times
, March 6, 1868, 1;
Sen. J
, 40-2: 809 App. (March 5, 1868).

2
    A strict constitutional textualist might view the matter differently. According to Article II, “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.” Did the “Same” in this sentence mean merely the “Powers and Duties” of the office, or the “Office” itself? A strong textual case could be made that upon the death of the president, the vice president remained vice president, but simply
inherited various presidential “Powers and Duties”—just as he would in the case of a debilitating presidential illness. The text makes no devolution distinction between a death and a disability, and surely in the case of a mere disability (which might prove temporary), the vice president never becomes president. On this strict textualist view, Andrew Johnson never became “president” but was always simply a vice president wielding various presidential powers—exactly as if Lincoln lay in a coma rather than in a vault. If so, perhaps Chief Justice Chase should not have presided, because the Senate was trying a vice president, not a president, and the constitutional text provides for the chief justice’s presence only in cases where “the President of the United States is tried.”

         
But this is not what happened. When President William Henry Harrison died in 1841, Vice President John Tyler eventually claimed that he was president, and this claim was accepted by the other branches of government and by the people. (Thus, Tyler was entitled to a president’s salary, rather than the smaller vice-presidential stipend.) After the death of President Zachary Taylor, Vice President Millard Fillmore likewise saw himself as president and was treated as such. Andrew Johnson followed suit, and no serious question arose in 1868 about treating his impeachment as a
presidential
impeachment triggering the presence of the chief justice. The articles of impeachment prepared by the House themselves repeatedly referred to “Andrew Johnson, President of the United States.”
Sen. J
, 40-2: 800–807 App. (March 2, 1868). All of which reminds us that America’s constitutional experience goes beyond a narrow, literalistic constitutional textualism. The practical precedents set by Tyler and Fillmore definitively glossed the ambiguous language of Article II. After President Kennedy’s assassination, this understanding was formally codified in section 1 of the Twenty-fifth Amendment: “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” For additional examples of actual governmental practices glossing and clarifying initially ambiguous constitutional clauses, see Chapters 8 and 9.

3
    
Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, on Impeachment by the House of Representatives for High Crimes and Misdemeanors
(1868), 3:360–61.

4
    For a clever—tongue-in-cheek?—argument that a vice president may preside over his own impeachment trial, see Michael Stokes Paulsen, “Someone Should Have Told Spiro Agnew,” in William N. Eskridge Jr. and Sanford Levinson, eds.,
Constitutional Stupidities, Constitutional Tragedies
(1998), 75–76. For a powerful counterargument, see Joel K. Goldstein, “Can the Vice President Preside at His Own Impeachment Trial? A Critique of Bare Textualism,”
St. Louis U. LJ 44
. (2000): 849.

5
    Consistent with these bedrock principles, in the very first days of the very first meeting of the House of Representatives, that body adopted rules forbidding any member from voting on a matter in which he was “immediately and particularly interested.”
Annals
, 1:104 (April 7, 1789). In his famous
Manual of Parliamentary Practice
, Thomas Jefferson later linked this rule to “the fundamental principles of the social compact, which denies to any man to be a judge in his own cause.” Sec. XVII.

6
    
Dr. Bonham’s Case
, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (C.P. 1610).

7
    Donald S. Lutz,
A Preface to American Political Theory
(1992), 134–140. For representative references in 1787–1788, see
Farrand’s Records
, 1:472 (Hamilton: “the celebrated Judge Blackstone”);
Federalist
Nos. 69 and 84 (Hamilton/Publius: “the judicious Blackstone”);
Elliot’s Debates
, 2:423–424, 432, 437, 455 (Wilson), 518 (Smilie and Wilson); ibid., 3:501 (Madison: “a book which is in every man’s hand”), 544 (Henry: “the learned judge Blackstone, so often quoted”), 506 (George Nicholas), 512–513 (Henry), 510 (Corbin); ibid., 4:63 (Maclaine: “admirable Commentaries”), 278 (C. C Pinckney: one of “the best writers on the laws and constitution of England”); ibid., 1:504 (R. H. Lee to Edmund Randolph, Oct. 16, 1787, reprinted in the Petersburg
Virginia Gazette
on Dec. 6, 1787,
DHRC
, 8:59–60); “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents” (Dec. 18, 1787), in
Storing’s Anti-Fed
., 3:160; A Columbian Patriot, “Observations on the New Constitution, and on the Federal and State Conventions” (1788), in ibid., 4:276; “Essays by a Farmer (III)” (June 6, 1788), in ibid., 4:213 (“Justice Blackstone, who is one of the most celebrated Authors now extant”); “Essays by Hampden” (Jan. 26, 1788), in ibid., 200 (“Judge Blackstone’s excellent Commentary”).

8
    
Blackstone’s Comm
., 1:91, 60–61 (emphasis added) (footnote citing
Bonham’s Case
omitted).

9
    
Farrand’s Records
, 2:375–376. See also
Calder v. Bull
, 3 U.S. (3 Dall.) 386, 389 (1798) (Chase, J.) (“The prohibition against their making
any ex post facto laws
was introduced for
greater
caution”). By contrast, the
nemo judex in causa sua
principle was not a prominent textual feature in revolutionary state constitutions. (In practice, all the states did of course accept the validity of the basic
nemo judex
principle.) Had the federal Constitution omitted a textual affirmation of the ban on ex-post-facto laws, this omission perhaps might have been more easily misunderstood by some as a purposeful rejection of the ban as it had been expressed in various foundational state texts.

10
  
Blackstone’s Comm
., 1:45–46. For an invocation of this very passage at the Philadelphia Convention, see
Farrand’s Records
, 2:448–449 (Dickinson).

11
  Ibid., 2:495 (comma deleted).

12
  See
Elliot’s Debates
, 4:44 (Maclaine) (“[I]f the Vice-President should be judge, might he not look at the office of President, and endeavor to influence the Senate against him?”); William Rawle,
A View of the Constitution of the United States of America
(2d ed. 1829; reprint 2003), 216 (“[I]t would be inconsistent with the implied purity of a judge that a person under a probable bias of such a nature, should participate in the trial”). See also Story,
Commentaries
, 2:247, sec. 775 (similar).

13
 Cf Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(1982), 142 (explaining how a constitutional text may sometimes be properly read “not for its own force, but rather as evidence of a more general [ethical] principle”).

14
  For representative comments on the vice presidency at Philadelphia, see
Farrand’s Records
, 2:537. The First Congress provided by statute that the vice president receive an annual salary of $5,000. Act of Sept. 24, 1789, 1 Stat. 72.

15
  Leading Anti-Federalists evidently took the Federalists at their word here. Maryland’s Samuel Chase, who had opposed Wilson, Ellsworth, Madison, and Hamilton in 1787–1788, echoed these men a decade later. Sitting as a justice of the U.S. Supreme Court, Chase declared that American governments must honor not only the “express” limitations on their power found in state and federal constitutions, but also “great first principles of the social compact.” Chase proceeded to offer a handful of examples of impermissible government action, including both ex-post-facto laws and violations of
nemo judex in causa sua. Calder v. Bull
, 3 U.S. (3 Dall.) 386, 387–388 (1798) (opinion of Chase, J.).

         
In John Locke’s influential writings, the
nemo judex
principle had formed part of the very basis for the existence of civil government. According to Locke, in a state of nature each person seeking to avoid wronging others and to remedy others’ violations of his own rights might routinely be obliged to be a judge in his own case, which was a result strongly to be avoided. “Civil Government is the proper Remedy for the inconveniences of the State of Nature, which must certainly be great, where Men may be Judges in their own Case.” John Locke,
Second Treatise of Government
(1690), Ch. II, sec. 13. See also supra n.5.

16
  For an illustration of precisely this sort of contestability, see
Trial of Andrew Johnson
, 3:375–378 (Sen. Sumner).

17
  John G. Nicolay and John Hay,
Abraham Lincoln: A History
(1890), 9:394.

18
  Though Chase was a leading Republican in the 1860s, he had begun his career as a Democrat and was willing to revert under the right conditions.

19
  Of the first sixteen presidents to serve after Washington, nine were former senators: James Monroe, John Quincy Adams, Andrew Jackson, Martin Van Buren, William Henry Harrison, John Tyler, Franklin Pierce, James Buchanan, and Andrew Johnson. Washington himself, of course, could not have been a senator because the Senate did not exist before 1789.

20
  For Morris’s proposal, see
Farrand’s Records
, 2:427. In 1789, Washington received 69 electoral votes; Adams, 34; Jay, 9; and Rutledge, 6. Maryland’s Robert Harrison—another man whom Washington would name to the Supreme Court (but who declined appointment) also received 6. On Marshall’s scheming, see Bruce Ackerman,
The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy
(2005), 36–54.

21
  Act of March 1, 1792, ch. 8, sec. 9, 1 Stat. 239, 240.

22
  Annals, 2:1902 (Rep. White, Jan. 10, 1791); ibid., 3:281 (Reps. Sturges and Giles, Dec. 22, 1791); Madison to Edmund Pendleton, Feb. 21, 1792, in Madison,
Papers
, 14:235.

23
  Senator James Dixon argued that the framers’
nemo judex
rationale for excluding the vice president from a presidential impeachment applied equally to Senator Wade, and that “the character and meaning and spirit of the Constitution” prohibited Wade from sitting in judicial judgment of the president. The framers “knew that in the very nature of things, in common justice, a man could not be a judge in his own case. They knew that the provisions of the common law prohibited a man from being a judge in his own
case. They probably remembered what has been said by one great commentator, (Black-stone,) that the omnipotence of Parliament was limited in this respect, and that body could not make a man a judge in his own case.”
Trial of Andrew Johnson
, 3:397. For other senatorial statements explicitly arguing that the Constitution gave the chief justice the presidential-impeachment gavel for
nemo judex
reasons, and that the spirit of this
nemo judex
clause applied to Wade as well, see ibid., 360, 365 (Sen. Hendricks), 362–363 (Sen. Reverdy Johnson—no relation to Andrew), 363–364 (Sen. Davis), 373–374 (Sen. Bayard), 385 (Sen. Buckalew). For the text of the impeachment oath, see
Sen. J
, 40-2:809 App. (March 5, 1868). For general background, see Michael Les Benedict,
The Impeachment of Andrew Johnson
(1973), 118.

24
  In 1862 Congress imposed a special 3 percent salary tax on a wide range of federal officials, including judges. In response, Chief Justice Roger Taney limited himself to penning and publishing a letter of protest to Treasury Secretary Chase: “I should not have troubled you with this letter, if there were any mode by which the question could be decided in a judicial proceeding. But all of the judges of the courts of the United States have an interest in the question, and could not therefore with propriety undertake to hear and decide it.” Taney to Chase, Feb. 16, 1863, in 157 U.S. 701, 702 (1895) (challenging Act of July 1, 1862, ch. 119, sec. 86, 12 Stat. 432, 472). For more recent case law, see, e.g.,
United States v. Will
, 449 U.S. 200, 213–217 (1980). Cf.
Evans v. Gore
, 253 U.S. 245, 247–248 (1920);
O’Malley v. Woodrough
, 307 U.S. 277 (1939). See generally John T. Noonan Jr., “Making the Case One’s Own,”
Hofstra LR
32 (2004): 1139. For defenses of Wade invoking the two-senator-per-state rule, see, e.g.,
Trial of Andrew Johnson
, 3:360, 371–372 (Sen. Sherman), 361 (Sen. Howard), 379 (Sen. Howe), 382 (Sen. Thayer). Note that no necessity problem arises in any situation when the vice president must recuse himself as the Senate’s presiding officer; Article I, section 3, expressly provides that the Senate may designate a substitute presiding officer in the vice president’s absence.

25
  Act of Jan. 19, 1886, ch. 4, sec. 1, 24 Stat. 1; Act of July 18, 1947, Public Law (Pub. L. hereafter) No. 80-199, sec. (a)(1), (b), 61 Stat. 380, 380 (codified at 3 U.S.C. sec. 19[a][1], [b]). For more on this deeply flawed 1947 statute, see Chapter 10, text accompanying n. 11.

26
  Cf. Hadley Arkes,
Beyond the Constitution
(1990) and
Constitutional Illusions and Anchoring Truths
(2010).