February 10, 2020

Post-Impeachment: Finding the Constitution’s Redemptive Strand 

Aziz Z. Huq Frank and Bernice J. Greenberg Professor of Law and Mark Claster Mamolen Teaching Scholar, University of Chicago Law School

Last week, the Senate voted to acquit President Trump of the impeachment charges filed against him in the House. The acquittal will merely ratify an absence of legal constraints on presidential action that has long been implicit in the particular way our Constitution has been implemented. Over at the Boston Review, Tom Ginsburg, David Landau and I analyze the causes of this failure not in terms of partisan dynamics, but by thinking about constitutional possibilities.  Our analysis and proposals draw on a larger project comparing the presidential removal mechanisms used in some 200 democratic constitutions around the world.  

One of the lessons from that larger project is apt today: Democracies go through periods of "institutional rot." Illegality, corruption, and callous stupidity reach a nadir. Yet by perseverance, and by an insistence on some basic forms of democratic civility that go under the name of the rule of law, and (of course) by dint of some good fortune, these democracies can survive, prosper and even flourish. An element of the American constitutional tradition that we forget at our peril is this redemptive strand. I associate this tradition with Frederick Douglass’s scintillating 1860 speech on the Constitution, in which he rescues the text—implausibly, miraculously—from its embrace of slavery.  His example is worth considering again today as a model of ethical commitment against mere power.   

Executive Power, Separation of Powers and Federalism