Originalism for thee, not for me

Photo courtesy of Max Jarck

For any conservatives scouring the wreckage of Donald Trump’s self-sabotaged legacy, the roughly two hundred judicial appointments of originalist jurists, including three Supreme Court justices, may represent a diamond in the rough.

As a whole, these appointees promise to limit the creep of the judiciary while adhering to the founder’s original intent when interpreting the Constitution. Former Senate Majority leader Mitch McConnel views Amy Coney Barret’s confirmation to the Supreme Court as a capstone achievement of Trump’s term. When faced with tough constitutional and precedential questions during Trump’s ongoing impeachment, however, McConnell and his Republican colleagues eschewed originalism in favor of political expedient arguments that promised not to anger their base.

The First Amendment arguments took center stage during the Trump defense team’s rebuttal of the House impeachment managers’ case.

The core of their argument, an argument echoed by op-eds in this publication, revolves around precedent from Brandenburg v. Ohio.

In its per curiam opinion, the Supreme Court ruled only speech which presented a threat of “imminent lawless action” could be prohibited under the first amendment.

Those advancing this defense are likely correct when they say Trump’s speech did not rise to this level, but that merely protects him from criminal prosecution for his January 6 remarks. The first amendment must not be misconstrued as limiting the legislature’s ability to hold the executive accountable.

My previous point necessarily entails arguments about the meaning of “high crimes and misdemeanors” in Article II, Section 4 of the U.S. Constitution.

The common law history of the phrase dates back to 14th century England. Some offenses described as “high crimes and misdemeanors” cited were criminal violations, but others such as procuring political offices for those who were unfit, clearly were not.

Centuries later, Alexander Hamilton reaffirmed the notion that more than statutory crimes constitute impeachable offenses when he wrote impeachments arise from “the abuse or violation of some public trust” in Federalist No. 65. This interpretation makes criminal definitions of incitement irrelevant to the current trial. Instead, a colloquial definition should be used.

Beyond first amendment misapplications, presidential defenders claim the entire senate trial is unconstitutional because Donald Trump no longer holds public office.

This argument also fails to consider contextual elements present in 1789. The founders recognized the transition of power as a particularly precarious time for a nation. It seems illogical to suggest the founders intended to grant immunity to a President for actions committed during this critical time, a conclusion supported by James Madison’s notes from the Constitutional Convention. Tellingly, Gouverneur Morris and Thomas Pickney objected to the idea that the President could be impeached during his term due to concerns of the legislator having undue influence over presidential action. It’s likely that the English tradition of post-term impeachments was already ingrained in the founding father’s conception of the mechanism.

In an American context, Delaware’s state constitution only allowed for impeachment after an official left office. After some debate, including a reassurance from Edmund Randolph that “Guilt wherever found ought to be punished…”, Morris acquiesced.

A strict textualist approach ignores this context, limiting its utility for interpretation of a Constitution never meant to have the specificity of a statute.

This is a nation of laws rather than men, but those laws must be interpreted with the appropriate methods.

As a conservative, I find Republican abandonment of originalism profoundly disappointing, but not entirely surprising given the metastasizing rot within the party.