Why the Vice President Can't Preside Over Their Impeachment Trial

This article explores the concept of America's "unwritten constitution," which goes beyond the literal text of the written document to understand its deeper meaning and intent. It argues that a purely literal interpretation can lead to absurd results and that the Constitution must be read holistically, considering its overarching purposes and the legal culture in which it was created.

The Vice President's Impeachment Trial: A Case Study in Absurdity

The central question posed is: Who presides at the Vice President's impeachment trial if the Vice President is impeached? A literal reading of Article 1, Section 3 of the Constitution presents a conundrum:

• The Senate tries all impeachments. This means the Senate would try the Vice President's impeachment.
• The Vice President is the President of the Senate. This implies the Vice President would preside over the Senate.

Therefore, a literal interpretation suggests the Vice President would preside over their own impeachment trial. This outcome is immediately recognized as absurd.

Constitutional Provisions and Their Limitations

The Constitution offers two explicit exceptions to the Vice President presiding over the Senate:

1. Absence of the Vice President: A Senate President pro tempore presides when the Vice President is absent. However, in an impeachment trial, the Vice President, as the defendant, would likely be present.
2. Presidential Impeachment: When the President of the United States is tried, the Chief Justice presides. This provision, while relevant to impeachment, specifically applies only to the President, not the Vice President.

These exceptions do not resolve the absurdity of the Vice President presiding over their own trial.

The Unwritten Constitution: Beyond Literal Words

To resolve this, the article introduces the idea of the "unwritten constitution," which encompasses background rules of interpretation and construction that existed before and during the Constitution's adoption.

Blackstone's Commentaries and the Absurdity Principle

William Blackstone's "Commentaries on the Laws of England," a highly influential legal text during the American revolutionary period, provides crucial insight. Blackstone argued that while judges should generally adhere to the literal words of a statute, they are permitted, and even invited, to disregard the literal meaning if it leads to an absurd result in "weird peripheral applications" that the legislature did not intend.

Blackstone offered two examples:

1. Spilling Blood in Bologna: A law prohibiting spilling blood in the streets of Bologna would not apply to a surgeon performing an emergency operation, as the legislature did not intend to criminalize life-saving medical procedures.
2. Lord of the Manor as Judge: A law stating that the lord of the manor tries all cases within his estate would not apply if the lord himself were a party to the lawsuit. This is because "no man can be a judge in his own case," a fundamental principle.

This second example directly parallels the Vice President's impeachment scenario, illustrating that the principle of avoiding absurdity and the maxim "no man can be a judge in his own case" were established legal tenets at the time of the Constitution's drafting.

The Rule of Law and Establishing Justice

The Constitution, as the supreme law of the land, implicitly embodies the "rule of law." A core principle of the rule of law is that "no man can be a judge in his own case." Furthermore, the Preamble states one of the Constitution's purposes is to "establish justice," which would be undermined if an individual could preside over their own trial.

If the Constitution had explicitly stated that the Vice President shall preside over their own impeachment trial, it would indicate a deliberate choice by the framers. However, the text does not say this, and it's highly improbable that the framers intended such an outcome, as they were primarily focused on presidential impeachments.

The Vice President's Recusal in Presidential Impeachments

The provision for the Chief Justice to preside over presidential impeachment trials is a key piece of evidence for the unwritten constitution. The reason for this exception is that the Vice President, who would otherwise preside, has a clear conflict of interest: if the President is convicted, the Vice President ascends to the presidency. This conflict was particularly salient at the founding, when the Vice President was often the President's political rival (e.g., Thomas Jefferson as Vice President to John Adams).

The principle behind the Chief Justice clause is the Vice President's recusal due to a conflict of interest. This principle applies a fortiori (even more strongly) when the Vice President is the one on trial and stands to lose their office. The framers likely didn't explicitly state that the Vice President couldn't preside over their own impeachment because it was considered a self-evident principle that one cannot be a judge in their own case.

Reading the Constitution Holistically: McCulloch v. Maryland

Another powerful illustration of the need to read the Constitution holistically comes from McCulloch v. Maryland, a landmark Supreme Court case where Chief Justice John Marshall upheld the federal government's power to create a national bank.

Many lawyers might point to the "Necessary and Proper Clause" as the basis for this power. However, Marshall's reasoning goes deeper:

1. The Constitution as a Whole: Marshall argued that the Constitution must be read as a whole, in light of its larger purposes and spirit. He emphasized that it was adopted for national security purposes and that it was designed to be concise enough for ordinary people to understand, meaning it couldn't detail every specific power.
2. National Security and the Bank: A national bank was deemed "pretty useful" for national security, facilitating the movement of money and borrowing during wartime.
3. "Pretty Useful is Good Enough": Marshall concluded that if something is "pretty useful" for achieving the Constitution's overarching goals, it is permissible, even if not explicitly enumerated. He famously stated, "We must never forget that it is a constitution we are expounding," implying that it's a living document whose principles extend beyond its literal text.

This case demonstrates that constitutional interpretation often requires looking beyond specific clauses to the document's overall design, purpose, and the principles it embodies, rather than relying solely on a literal reading. The unwritten constitution, therefore, is essential for making sense of the written one, ensuring it functions justly and effectively.