As Laurence Tribe and Joshua Matz eloquently recount in To End a Presidency, the U.S. Constitution almost did not countenance impeachment. The palpable difficulties of designing such a removal mechanism, they document, “led some Framers to give up on the very idea of presidential impeachment.” (p.114).  Even more tellingly, they explain that the removal device set forth by Article I, §§ 2 & 3, and Article II, § 4, may today operate in a very different way from the manner in which it was expected to work. Perceptive commentators closer than us to the Framers, such as Joseph Story and Alexis de Toqueville, highlighted the “limited consequences of an impeachment”; they thence reasoned to the prediction that impeachment would become a “‘regular influence … at all times available’ [to] deter official misconduct.” (pp.12-13).  Rather than cataclysm, impeachment was expected to be a commonplace.

Of course, it was not to be. Today, this disjuncture is telling because it casts light on the causes of our present conjuncture.  For it is plain that the version of impeachment envisaged by Story and de Toqueville would not generate the central normative difficult with which Tribe and Matz struggle—i.e., the difficulty of choosing between the risk of political “havoc” associated with an uncommon impeachment and the risk of leaving in place “a truly determined tyrant” or some other similarly morally despicable leader (p.xx). Therefore, it is not the document’s textual specification of impeachment that creates the central normative problem framed by To End a Presidency.  Rather, it is what scholars such as Keith Whittington would call the constitutional construction that generates the perverse situation in which the removal of a sitting president is very unlikely to occur under conditions in which it is objectively warranted. The crisis, in other words, is idiopathic and not originalist in character.

This gap between text and observed practice is hardly confined to the impeachment-related clauses of the Constitution. In this, as in many other matters, constitutional text is, if not “irrelevant,” at least a predictably inadequate determinant of current practice. In the impeachment context, we think it is plausible to suggest that the emergence of a national two-party system in the 1790s rendered the Story/Toqueville version of impeachment incompatible with the felt compulsions of legislators. Into the nineteenth century, Stephen Griffin has usefully explored subsequent steps in impeachment’s reconstruction under unanticipated partisan conditions. The resulting gap is large. A telling sign of its extent is to be found in To End a Presidency’s silences: Tribe and Matz develop a purportedly comprehensive account of impeachment—and yet, consistent with their title, they pretty much ignore cases which constitute the overwhelming numerical majority of its practical applications. Article II, § 4, we should  recall, speaks of impeachments of “[t]he President, Vice President, and all Civil Officers of the United States.” Hence—aside from a brief note on Supreme Court Justices—Tribe and Matz write as if the last ten words of that phrase did not exist. They do consider, for example, how their purported criterion for impeachment would fit (or rather manifestly fail to fit) nonpresidential cases covered by the same textual dispensation. Such is the power, we might conclude, of historical gloss.

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