Abstract

http://ssrn.com/abstract=256846
 
 

Citations (1)



 
 

Footnotes (66)



 


 



Impeachment As Congressional Constitutional Interpretation


Neal Kumar Katyal


Georgetown University Law Center


Law and Contemporary Problems, Vol. 63, Nos. 1& 2, Winter/Spring 2000

Abstract:     
This paper uses the impeachment of President Clinton to explain how one can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. Originalism, as practiced in this way, is a doctrine that constrains unelected judges from an unduly free interpretive approach, but it does not preclude Congress from making constitutional judgments that are more flexible and nuanced.

At stake in this project is something larger than the debate over originalism. Constitutionalists have assumed, too quickly in my view, that symmetry should exist between the interpretive styles of the courts and Congress. This assumption slights the many reasons why an interpretive method may work well in one area and not work as well in another. Instead of mapping out all these possible divergences, the paper illustrates the point with three examples: the roles of history, precedent, and moral philosophy. It shows how, in each instance, arguments can be made to suggest that divergent institutional roles should be taken into account in formulating a comprehensive interpretive philosophy about the Constitution.

This essay largely concentrates on the first example, the role of history. It contrasts two prevailing theories of constitutional law, legal process and minority protection, and argues that implicit in each theory is an account of why the role of history might differ depending on whether the decision-maker is the judiciary or Congress. It is well established at this point that the ultimate purposes of the Constitution will influence what style of interpretation is appropriate. What this essay seeks to show is that those purposes counsel different interpretive theories for different constitutional actors.

Number of Pages in PDF File: 24

Accepted Paper Series


Download This Paper

Date posted: January 18, 2001  

Suggested Citation

Katyal, Neal Kumar, Impeachment As Congressional Constitutional Interpretation. Law and Contemporary Problems, Vol. 63, Nos. 1& 2, Winter/Spring 2000. Available at SSRN: http://ssrn.com/abstract=256846 or http://dx.doi.org/10.2139/ssrn.256846

Contact Information

Neal K. Katyal (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9807 (Phone)
202-662-9410 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 784
Downloads: 126
Download Rank: 130,880
Citations:  1
Footnotes:  66

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.219 seconds