Welcome back. In this part of the course, we're transitioning from America's written constitution, which we've been studying in extensive detail in the first series of lectures to America's unwritten constitution which will be the focus of the lectures for the remainder of the course. And by an unwritten constitution, I don't mean to suggest something that will undermine the written constitution but something that will go beyond the written constitution, beneath it, behind it. But ultimately will be faithful to the project of written constitutionalism. That's the trick of how we might go beyond the literal words of the document in order to make deepest sense of the document. Remember that the document doesn't tell us how it should be interpreted. It doesn't give a, a comprehensive set of, of instructions, of rules of interpretation, rules of construction. And you might think, okay, well that just means we're supposed to just read it as if it's just plain English, under the, the rules of reading English. But can that be so? Remember, I left you with a question at the end of the last lecture. The question is who presides at the vice president's impeachment trial if the vice president is impeached? Now, if we read the Constitution sort of literally, just by the rules of English, here's what we find. In Article One, Section Three, we have the sentence the Senate shall have the sole power to try all impeachments. So the Senate is going to be the body that tries impeachments, okay? Now the question is who presides over that trial, because the Senate's going to be the, the body that tries all impeachments including the Vice President's impeachment. Who presides over it? Here's what the text says; again Article One, Section Three, the vice president of the United States shall be the president of the Senate. So he's the presiding officer. So if you just read the words literally by the rules of English, the vice president would preside at his own impeachment trial. Can that be right? Is that what the Constitution really means, properly interpreted, properly construed? Now it turns out there are a couple of additional clauses that we have to take into account. And indeed one of the biggest ideas of this chapter, this first chapter in America's Unwritten Constitution, is that we have to read the Constitution as a whole and there are often more than one provisions to pay attention to. So there are a couple of other provisions that might be relevant to us. One provision says that when the vice president is absent from the the, the Senate, the Senate can, needs to be presided over by a Senate president pro tem, pro tempore. Okay, but that doesn't help us so much, because in this impeachment trial, arguably the, the vice president is there. He's the defendant. He's in the dock. He, he shows up and says, I'm present, I'd like to preside, please. So Senate president pro tem, because it's, that person gets to preside only when I'm absent, and I'm here. Well there is one other provision that, that, might be in the neighborhood. Here it is. These are all from Article One Section Three. They are all kind of right next to each other, pretty much, in the Constitution. When the president of the United States is tried in an impeachment court, the chief justice shall preside. And indeed this picture, which we're going to talk about at the end of, of this series of lectures end of the next lecture is a picture a picture, a, a picture of, the first presidential impeachment trial. The impeachment trial of President Andrew Johnson. And the presiding officer is indeed, the Chief Justice of the United States, Salmon P. Chase. I'm going to tell you a little bit about that picture, at the end, as I always do. That's what this is But, does that help us very much in our vice presidential impeachment scenario? Not at all, because it doesn't say when the vice president is tried the chief justice shall preside, but only when the president is tried, does the chief justice preside over this impeachment trial. So the rules, just, if we look at them by, by kind of the standard English, say the Senate tries all impeachments, the vice president is the presiding officer of the Senate. There are two and only two textually specified, explicit exceptions. When the vice president is absent, the Senate president pro tem presides and for presidential impeachments, the chief justice presides. So, just by the rules of English, it looks as if the vice president presides at his own impeachment trial if we read the thing literally. And my friends I'm going to argue, I do argue in the book there's a lot more detail of course in the book, I'm going to try and summarize it today. That that can't be right. And we begin in trying to tell you that that can't be right with just a basic intuition. This is absurd that a man could be could preside over his own trial, that a man could be judge in his own case. And you might say, well so what if it's absurd, it says what it says. Well it says what it says in a legal culture. And that legal culture, actually, before the Constitution was adopted had certain background rules of interpretation, of construction. And these background rules aren't exactly the same as just the ordinary rules of the English language. They're legal rules, canons they're sometimes called. C-A-N-O-N-S, canons of interpretation, canons of construction. The most the best selling book in the entire American Revolutionary period other than the bible was a book by a man named Blackstone. He was an English lawyer, British lawyer. And he wrote a four volume treatise on basically of the rules of, commentaries on English law. And many of these English laws and customs and practices actually carried over to the colonies. And, he begins his book talking about on law on general, and tells us about some rules of interpretation. And he says, ordinarily, judges are supposed to pay attention to the words of the statute books. And even if the judge doesn't like what the statute says, the law is the law. And if the legislature clearly envisioned a certain application, even if the judge doesn't like it, the judge has to follow the law as laid down by the legislature. That's the basic principle. But, Blackstone introduces a qualification. He says what I just said is true when judges are basically confronting the main object, the central purpose of a statute, which the legislature clearly had in mind. But sometimes when it comes to weird, peripheral applications that the legislature wasn't thinking about when they passed the law, if the literal words of a statue would result in an absurd result, a result that no legislature really thought about and, and intended and contemplated, judges in these weird quirky situations are permitted indeed they are invited to disregard the literal meaning of the statue. And, if the literal meaning leads to an absurd result. Interesting, but what's most interesting is Blackstone actually gives two specific examples. Here's one that he gives that if the Law of Bologna says it's a crime to spill blood In the streets of Bologna, we don't apply that law if a surgeon needs to perform some emergency operation if some pedestrian falls and, and needs some emergency medical procedure. Even though the surgeon has literally spilled blood on the streets of, of Bologna, of course the legislature wasn't thinking about that when it said it's an offense, it's a crime to spill blood in the streets of Bologna. Okay, but here's the second one, and it's so interesting because it is our hypothetical. Blackstone says suppose the law says that all the cases which arise in the manor dale, a certain sort of lord's estate. Shall, all the, the cases that arise within that manor shall be tried by the lord of the manor. If say, you know, when two of the tenants in the manor have a, a property dispute or some other dispute the lord of the manor will try all cases. And Blackstone says, but of course that law would not apply if the lord of the manor himself were a party to the lawsuit because no man can be a judge in his own case. That's a first principle. Blackstone says it would be absurd to read that statute to apply for lord of the manor himself is actually one of the litigant because no man can be a judge in his own case. That's actually the example Blackstone uses for when it's proper for judges to deviate from the literal meaning of the law in order to avoid an absurd result that the legislature actually didn't have in mind. And remember, Blackstone is the leading authority on the nature of law and legal interpretation in revolutionary era America. And a simple straight forward application of the absurdity principle. No, vice president shouldn't preside over his own trial. No man should be a judge in his own case. I can try to show you that in a couple of other ways. I could say what's the central idea of the Constitution. Well, that it is law. It is just not just law but the supreme law of the land. And even though it doesn't say the words the rule of law, that idea is clearly implicit in the spirit of the document as a whole. The Constitution is law and it must there for partake of the virtues of the rule of law and here is the first principle of the rule of law that no man can be a judge in his own case. The Constitution's Preamble talks about its purposes and one of the purposes is to establish justice and it can not be just for a man to preside in his own trial. Now if the statue or excuse me in this case the Constitution had explicitly said the vice president shall preside comma, even in his own impeachment trial then we'd have conclusive evidence in the words that actually the, the supreme lawmakers of America We the People had focused on this particular application. And had said no, we actually think it's okay for the vice president to preside at his own trial. But the words don't say that. And in fact no one was imagining that the vice president would preside at his own impeachment trials. They just weren't thinking about it particularly prominently. They were focused on presidential impeachments, and a couple of things about that. and, and, and we can actually tell from the text itself that they were focusing more on presidents than on vice presidents. The vice president was kind of an afterthought almost at the Philadelphia Convention. The document says, when you read it, that it provides for presidential salary and congressional salary, House salary, and, and Senate salary. It doesn't provide explicitly for the vice president's salary, but of course it would be silly. It would be absurd to say, oh we can't pay the vice president then. It's just, you say, no it doesn't say that you can't pay the vice president, it just doesn't explicitly provide for it because they weren't focusing on him. And they weren't focusing on his impeachment. They were focusing, however, on his role in presidential impeachments. Let's come back to one of those two exceptions that we talked about. Why is it that the chief justice presides at presidential impeachment trials? The answer is because who otherwise would have presided but for that specific exception? Well, the ordinary presiding officer is of course the vice president. And the framers thought that was wrong. You shouldn't have vice president presiding over the president's impeachment trial. So, even though the words vice president don't appear in that clause talking about a chief justice presiding over the president's impeachment trial, that clause is all about vice presidential recusal. The vice president shouldn't preside over the president's impeachment. The chief justice should. Why shouldn't the vice president preside? Because he would have a stake in it. Because if the president were convicted he'd move up and, and that would give him sort of an improper bias. And and remember at the time of the founding the vice president is not the president's best buddy, his running mate, his teammate, his ticket partner. He's the guy who came in second in the presidential contest. He's the rival of the president. He's Thomas Jefferson when John Adams is president. Remember Thomas Jefferson is vice president, when the two men run against each other, ran against each other. And if, and if John Adams as president were to be impeached and tried in the Senate, it would be wrong for Thomas Jefferson to preside. He's the ordinary presiding officer, the vice president, but he'd have too much of a stake, a vested interest, too much of a, of a bias in the thing. Now you might say, oh, well, they saw the problem of bias, and they specified that in presidential impeachments, the vice president couldn't preside, but they apparently said, well, in vice presidential impeachment trials he could preside. And that is, that, that's the kind of argument that gives legal reasoning a bad name this argument. Because the text doesn't say that the the vice president shall preside comma even in his own impeachment trial. And it was preposterous to think that even though the vice president must recuse himself when he stands to gain an office, the presidency, he doesn't have to recuse himself when he stands to lose his office. It'd be like saying well, you can't be tried twice for a single offense but three times, what the heck. You know or four times. It'd be like saying, well Congress can't limit free speech, but the president acting on its own can. Sometimes in law, certain things follow. Here's a Latin phrase, a fortiori. Even more strongly. You have to read not just the words but the spirit, the principle. And the principle of the chief justice clause, the clause that says the chief justice should preside in presidential impeachment, is that the vice president shouldn't because he would have a conflict of interest and, of course he's had even more of a conflict of interest when he himself is on trial. You might say, well, why did they then specify it for presidential impeachments? Well here's one reason why. Because strictly, strictly speaking when the president is tried, the vice president isn't presiding over his own case, it's sort of someone else's. So, so it went without saying that a person couldn't preside in his own case. But for someone else's case, the matter is a little trickier, arguably. now, you might think, well gee, wouldn't all of these problems have been solved if the framers had just simply said, as a general principle, no man can be a judge in his own case. And the answer is actually that wouldn't have solved it too because you still would have had to decide what does it mean to be a judge in your own case. What happens, for example, if you're presiding over a trial in which your brother is a litigant? Which has happened. Brockhurst Livingston, a justice on the Supreme Court, sat on a trial where his, his brother, Robert Livingston, had a steamboat monopoly patent at issue. Roger Tawnee, Chief Justice of the United States, didn't recuse himself when his brother-in-law a man named Francis Scott Key, you may have heard of him, was the lawyer in the case. In the Dred Scott case Benjamin Curtis actually dissented and in the process sided with the lawyer for Dred Scott, who happened to be his brother, George Ticknor Curtis. So, you have a, a rule saying no man can be a judge in his own case. It's not self defining. So, so we're going to often have to go back to first principles even to to understand specific text, but here's the point. We have to read the Constitution holistically and not literally with attention to its larger purpose. It's adopted, actually as, as one whole instrument. I'm going to come back to this picture of presidential impeachment at the end of the, of my next lecture. But just to, to foreshadow a little bit, sometimes certain conflicts of interest actually are built into the Constitution, and the framers basically signed off on them. Who is judging Andrew Johnson? A bunch of senators, a lot of whom are politicos. A lot of whom actually might want to be president themselves. But that's clearly contemplated by the Constitution. The politicians, ambitious politicians, are going to be judging other ambitious politicians. Who presides? A chief justice. I'm actually going to tell you a story about how Solomon P. Chase actually, who's the presiding officer at this trial, himself wants to be president, wants Andrew Johnson's job at the very moment he is presiding over that. But it's still, that's a conflict of interest that the framers actually did build into the main object, the main purpose, of the clauses that they, that they drafted. So judges aren't permitted, just anytime they want, to disregard the main purpose of a statue. But when it comes to really weird applications that no one was thinking about, and no one was thinking at the founding about a vice president presiding over his own impeachment trial, then the rule, it's called the Rule of Absurdity. It's a canon and a rule of interpretation, of legal interpretation, permits us to deviate from the literal meaning of a sentence or a clause in order to make sense of the document as a whole. Which is about the rule of law, and establishing justice. Now that's just one illustration of this idea of the need to read the Constitution as a whole. Let me give you another one from the most famous, one of the two or three most famous, cases in all of American history. If you ask what are the three big Supreme Court cases, I'd say they're Marbury versus Madison, which is about judicial review. There's Brown versus Board of Education, which we're going to talk about. And there's a case called McCulloch versus Maryland, in which John Marshall and his court uphold the power of the federal government to have a national bank. it's, it's an iconic case, and Marshall in that case not only upholds the power of the bank, but he also makes a lot of legal moves. He teaches us a lot about the art of constitutional interpretation. Now if you ask many a lawyer what's the basis for the congressional power to create a bank? They would say well, the, you know, if you ask, if you ask a layperson, the would say oh, well there must be some bank clause in the Constitution. But there is no bank clause in the Constitution. The document literally doesn't say Congress has power to create a bank. Doesn't say that in so many words. Lawyers would say oh, Marshall is looking at another clause, the necessary and proper clause, but that's a bad joke. Because the necessary and proper clause in its own is not some free standing power. It has to be necessary and proper to something else. It would be like going into, you know, a coffee shop and asking how much a coffee is, and they say you know, $1.50, and you say how much are refills, and say refills are free, and you say okay, I'll have a refill. But you don't get the refill unless you actually get the, buy for a $1.50. You don't get the free refill without buying the original cup of coffee. And you can't use the necessary and proper clause unless it's connected to something else in the document, and here's the kick in the head. Marshall never really tells us what specific other clause connected to the necessary and proper clause really is doing the work. And in fact, he upholds the power of Congress to create a national bank even before he starts talking about necessary proper clause. And here is in fact what he says. It's not a necessary in proper clause. It's not any other specific clause in the document. Marshall says it's the whole thing. We have to read the Constitution as a whole in light of its larger purposes and spirit. Here is actually what McCulloch says. Point one, Americans adopted the Constitution for national security purposes. That's what the document as a whole is all about, just as I said before it's about the rule of law and establishing justice. It's about national security and ordinary farmers aren't paying attention to every word. They're just trying to understand the document as a whole. The document can't have detailed provisions about everything. It would be too long. So it has to be short so it could be read by ordinary people. We adopted it as a whole. So we have to read it as a whole. And as a whole, it's about national security. That's step one. Step two, the national bank is pretty useful for national security. To move money around from east to west, north to south. You're going to need to borrow money in war time on behalf of the United States. as, if the army is in one part of the country you need to get men and, you need to get money, to pay them on-site and on time. If you've ever had to cash an out-of-state check, you know what I mean. It's a kind of ATM argument that in order for the federal government to be able to pay soldiers on-site and on time the National Bank is pretty useful. So, the Constitution says aye for national security. The bank is pretty useful for national security. Step three, pretty useful is good enough for government work, we're at the next case. Because not everything Marshall says can be specified. This is not a flaw in the document, he argues. This is, it's not a bug. It's a feature, because if you have to specify everything no person can be a judge in his own case. And, but only if the main object of, of, of, of the Constitution doesn't specify otherwise. And, and we draw the line between brothers-in-law and brothers. Or between brothers-in-law and cousins. And, and, there has to be a bank clause. If we have to have every single application specifically identified in the Constitution, then Marshall said, ordinary people couldn't understand it. It would not be understood by the public. He says, we must never forget it is a Constitution we are expounding and he means we have to understand the document as a whole. We have to read between the lines. Okay, those are a couple of examples. I am going to give you a few more in the next lecture. I am going to tell you the second half of McCulloch versus Maryland, which is how once Congress has created a bank, properly, states can't undo it. And, then I am going to introduce you to a hypothetical friend of mine, whose name is Lincoln Abraham. And after I introduce you to that friend we are going to talk about the real Abraham Lincoln. And at the end I'm going to come back to this picture. As I always do at the end of chapters. So, stay tuned. [MUSIC]
