Unimaginable

When the campaign for the ratification of our present Constitution took place in 1987, there were quite a few critics who pointed out that it was too wordy. I wondered why this would be a defect in a Constitution, and the answer I got was a reference to the fourth chief justice of the United States, John Marshall, who wrote, “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.”

The drafters of our present Constitution ended up rushing their work so that its provisions sometimes don’t make internal sense: originally written with a unicameral National Assembly in mind, its drafters only near the end decided to have a bicameral legislature instead, but left some provisions written for a unicameral assembly. From time to time, such as when Congress has been called upon to approve or reject martial law, or when constitutional amendments are up for discussion, this becomes problematic.

Now it seems the problem with the Constitution is that it wasn’t wordy enough: that is, that it did not take pains to be hyper-specific in its provisions in order to exclude any and all eventualities not intended by its drafters.

In an earlier era, senators would have worried about impeachment strictly from the perspective of a politician or a statesman, whichever dominated an individual senator’s being. Today, senators must worry about public opinion—the electorate—and posterity, but also about the Supreme Court looking over their shoulders, so to speak, since the high court can always claim the obligation to render judgment on the conduct of the other no longer coequal branches of government. This is why, in determining what the Constitution itself says is its exclusive power “to try and decide all cases of impeachment,” the senators have collectively asked retired justices of the Supreme Court to advise the Senate on a question that has senators and lawyers and most interested observers divided: to convict an impeached official, the Constitution says two-thirds of “all the members” of the Senate is required. But two-thirds of what, exactly?

This is a problem no drafter of the current Charter, however vivid (or naughty) their imagination at the time, could have imagined. There is a saying that the weakness of militaries is that generals are always fighting the last war, which leaves them unprepared to cope with innovations in warfare when a new conflict erupts. Similarly, I think it’s fair to say the framers of our Charter had many scenarios from the past in mind when they were writing and debating what the Constitution should contain, but no one could have foreseen where we are now.

Where we are is that we have an impeachment, which has led to a trial in the Senate, but a surprising—and possibly growing—number of senators can’t participate in any Senate business because of being on the run or being in jail. These senators still hold their position, but they are unable or unwilling to do their jobs, including voting at the end of an impeachment trial. There are basically two schools of thought, the first, asserting that the Constitution shouldn’t require special knowledge to figure out—it should be understood to mean what it says. So if it says two-thirds of all the members, and the membership is 24 senators, then you need 16 senators to convict. If people don’t like the possibility that impeachment, already a difficult thing to accomplish, becomes even more difficult as a result, then the solution is not to effectively amend the Constitution by indulging in creative readings, but rather, to amend the Constitution to specify “two-thirds of members present” or “two-thirds of members qualified to vote,” etc.

The other school of thought asserts that it should be understood to mean two-thirds of those able to participate in a trial, because otherwise, under many scenarios and not just those involving flight or detention, impeachment would be impossible. The middle ground starts with 16 needed to convict but is willing to adjust the number based on the actual number of senators who took their oaths as members of the impeachment court, or some variation of this criterion.

The Senate, in inviting ex-justices to weigh in, is doing so because it is poised to vote on Sen. Francis Escudero’s declaration that the court is operating on the assumption that the Constitution means 16 are needed to convict. When it votes to accept or reject Escudero’s ruling, it creates a controversy that can then be brought to the Supreme Court—the idea being, I suppose, that if respected jurists informed the Senate’s vote, the Supreme Court would be more inclined to accept the logic behind the vote.

—————–

Email: mlquezon3@gmail.com; Twitter: @mlq3