Bench Memos

Akhil Amar’s “Mangling” of Scalia/Garner Book—Part 2

Beyond my Part 1 post, I have just a couple of other observations on Yale law professor Akhil Reed Amar’s review of Justice Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts:

1. Amar opens with the question whether Scalia and Garner believe that a vice president could preside over his own impeachment trial in the Senate. On the one hand, the Constitution states that the vice president “shall be President of the Senate” and, two provisions later, that the Senate “shall have the sole Power to try all impeachments” but that “[w]hen the President of the United States is tried, the Chief Justice shall preside.” These provisions together would seem to suggest that the vice president could preside at his own impeachment trial. On the other hand, Amar considers this to be “self-dealing of [a] grotesque sort” and “an absurd result.”

I don’t know what answer Scalia and Garner would provide to Amar’s question, nor am I ready to provide an off-the-cuff answer. It may well be, as I understand Amar’s new book (America’s Unwritten Constitution) to argue, that the relevant constitutional provisions need to be read against a background principle that was widely understood—that no person should be judge of his own cause.

For present purposes, I will confine myself to observing that I don’t see why Amar’s objection that the vice president would be engaged in “self-dealing of [a] grotesque sort” should play any role in the legal analysis (apart, that is, from how considerations of that sort may have informed the creation of any relevant background principle), nor do I see such a vice presidential role as an “absurd result.” An impeachment trial will often involve crass political considerations, and grotesque self-dealing is a perennial danger in politics. One could imagine similar “self-dealing” if, say, a vice president were positioning himself to run for president and were alarmed by the damage that conviction of a senior Cabinet officer would do to his prospects. I would happily trust to our system’s imperfect political checks to handle any self-dealing.

(It’s also not clear to me how much actual power the presiding officer in an impeachment trial really has. The vice president, for example, wouldn’t have a vote, as the 2/3 requirement for conviction means that the Senate would never “be equally divided” and in need of a tie-breaking vote, and I would think that the Senate as a body could overrule most or all actions taken by the presiding officer at an impeachment trial.)

2. Amar finds “one overall weakness” of the Scalia/Garner book to be that “it does not clearly and in one place explain all the ways in which constitutional interpretation might sensibly differ from ordinary statutory interpretation.” It’s a natural temptation of a book reviewer to lament that an author hasn’t written the book that the reviewer would write. I think that it’s fair to say that Scalia and Garner haven’t provided the explanation that Amar seeks because they don’t approach constitutional interpretation the way that Amar does. Thus, they pose the question (with specific reference to the fixed-meaning canon but with, I think, more general applicability) “What possible justification is there for treating the Constitution differently from all other legal texts?” (p. 403), and their answer is, in effect, “None.”

Garner’s recent critical review of Amar’s America’s Unwritten Constitution provides further evidence of their very different approaches.


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