Rhetorical Duty and the Constitutional Order

Charles U. Zug is a Visiting Assistant Professor of Political Science at Williams College. His research focuses on American Politics and Political Theory.

On January 13, 2021, the House of Representatives voted to indict president Donald Trump with inciting an insurrection at the United States Capitol. In their January 8 brief responding to the House Managers’ memorandum, the former president’s lawyers argued that efforts to punish Trump for his role in the events of January 6 must meet the exceedingly-high burden of proof the Supreme Court has articulated regarding what kinds of political speech are punishable by law. For their parts, House Managers had averred that public officials holding “sensitive policy positions” should be held to a higher standard when it comes to their public utterances, and that the same permissive First Amendment standards that apply to private citizens do not apply to those who hold the public trust. In stark contrast, Trump’s lawyers concluded that the First Amendment protects sitting presidents who would engage in every kind of conduct the Court has deemed protected as “political speech.” Among other things, this kind of speech includes flag burning (Texas v. Johnson), protesting the deaths of American soldiers killed in battle (Snyder v. Phelps), racist cross-burning (RAV v. St. Paul), and protesting at rallies of the Ku Klux Klan (Brandenburg v. Ohio).

Is it true, as Trump’s counsel evidently believes, that a sitting U.S. president could picket a fallen soldier’s funeral, or yell racist chants at a Klan gathering, and all the Constitution allows Congress to do is wring its hands in frustration?

The obscene ludicrousness of this conclusion—which Trump’s lawyers neglected to spell out in their brief, perhaps sensing its ludicrousness—should provoke us to ask why exactly it is that outrageous and offensive speech acts perpetrated by private citizens seem to take on a different significance when perpetrated by presidents and other Constitutional officers. What is the basis of our intuition that a president’s words matter for the Constitution—indeed, matter more than perhaps anyone else’s?

This intuition is rooted in the common-sense understanding that different jobs require different kinds of speech. Words that are appropriate at an athletic event or a political protest, for example, would be disruptive or even damaging at a legal proceeding or a funeral, because these different shared activities exist for the sake of different social ends. More broadly, the ways in which we communicate our thoughts affect the ability of ourselves and others to perform the tasks and honor the responsibilities that make up our daily lives.

Below I will suggest that the Constitution applies this insight at the societal level. As the generative principle of the American political community, the Constitution creates offices that require different kinds of speech on the part of officeholders in order to function properly. A president’s words matter, as do those of all our political leaders, and their speech must be taken seriously if the Constitution is to realize its own fundamental aspirations.

As their defense of the former president in his impeachment trial made clear, Trump’s lawyers object to this view of the Constitution, insisting that the president’s words on and leading up to January 6—regarding the allegedly “stolen election” and the need to “fight like hell” to preserve the country—should not be understood as impeachable offenses, or “high Crimes and Misdemeanors” in the language of Article 2, section 4. For this reason, they also insist that the only element of the constitutional order that is empowered to judge a president’s speech is not Congress but the voting public, who decides whether the president should be elected or reelected: “Mr. Trump, having been elected nationally, was elected to be the voice for his national constituency.” This statement implies that, except for violating criminal statutes for which anyone might be punished, a president is permitted to behave in whatever manner he desires, and to say whatever he thinks is fit, so long as the public has voted to put him in office. The principle on which this understanding of the presidency is based is that the president is responsible to the portion of the public that voted for him, and to no one else.

This view is plainly at odds with the text of the Constitution, which makes no mention of the president’s own “national constituency.” Rather, it admonishes the president to “preserve, protect, and defend the Constitution.” The crucial consideration for determining whether a president deserves to hold the public trust is not whether his national constituency supports him, but whether he is “faithfully execut[ing] the Office of President of the United States” in accordance with his constitutionally-mandated oath of office.

Can a president’s words count as a breach of this faith? Some scholars, including Bob Bauer, have suggested they can, arguing that the particular class of punishable acts referred to in Article 2, section 4 of the Constitution is different from ordinary statutory crimes for which a private citizen could be convicted. Such acts, wrote Hamilton in Federalist #65, “are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” In other words, public officials are forbidden from doing certain things as public officials that they might be at perfect liberty to do as private citizens, in the same way that private individuals are forbidden to perform many of acts that we entrust public officials to perform on our behalf, such as voting in Congress, serving as judges, and arresting criminals. Representing the interests of the community and not just themselves, officials have responsibilities that the rest of us do not; and the process by which disputes about those particular responsibilities should be adjudicated is not criminal litigation but impeachment.

Is speech one of these responsibilities? Or, as Trump’s lawyers contend, does the principle of free speech protect ordinary citizens and officeholders equally? The First Amendment says “Congress shall make no law…abridging the freedom of speech,” and Trump’s lawyers have inferred from this prohibition that Congress is forbidden from abridging the president’s speech by means of impeachment and removal.

To think through this question, it is helpful to notice that the impeachment process is not a part of the ordinary legislative process outlined in Article 1, section 7. Under the Constitution, all “laws” must pass by simple majority in each house of Congress before being signed into law by the president or vetoed. In turn, Congress can override a veto with a two-thirds supermajority in both houses. By contrast, impeachment requires a majority in the House and a two-thirds supermajority in the Senate and, for obvious reasons, does not require the president’s signature to become authoritative.

The reason for this design feature of the Constitution would seem to be that the First Amendment protects a class of activity that is distinct from the class of activity that impeachment exists to regulate The five liberties that constitute the First Amendment—freedom of speech, free exercise of religion, freedom from established religion, freedom to peaceably assemble, freedom of the press—are means for protecting the public from abuses of power by the state. Such protections are necessary in a constitutional democracy, where citizens are presumed free and equal and therefore entitled to debate the worthiness of leaders and merits of public policies in a free and open manner.

In contrast, impeachment concerns the conduct not of members of the public but of officers of the government. The rationale behind impeachment is that officeholders must meet standards of conduct above and beyond those that apply to private citizens because officeholders have powers and responsibilities that private citizens do not. Because officials can be removed for improper conduct other than violations of the criminal code (which applies to everyone), impeachment is a power of the Congress, not of the courts. Further, and contrary to the arguments of Trump’s lawyers, the voting public is not the only judge of a president’s conduct. Congress is empowered by the Constitution to decide whether presidents and other officials have lived up to their Constitutional responsibilities.

What do these responsibilities entail in terms of public speech, written and spoken? Put slightly differently, can we infer and elaborate rhetorical standards for Constitutional officeholders, standards that members of Congress might look to in deciding cases of impeachment?

In some ways, it is easier to answer this question by examining the conduct of judges than by looking at presidents and members of Congress. The federal judiciary is one institution in which speech norms are easy to identify and, for the most part, strictly enforced. Unlike in the case of presidents, there seems to be a broad consensus that judges should speak publicly in a way that befits their particular constitutional duty. When the late Justice Ginsburg publicly criticized then-candidate Trump in 2016, for example, the editorial board of the left-leaning Washington Post rebuked the left-leaning Justice in a lengthy article. The substance of their rebuke was that by weighing into a partisan debate, Ginsburg had abdicated the particular responsibilities of her constitutional office. The editors of the Post were elaborating their constitutionally-rooted intuition that judges are obligated to speak to the public in a way that honors the deliberative, impartial character of the judicial office and, by the same token, to eschew forms of demagoguery that are (more) permissible for other officials:

However valid her comments may have been…and however in keeping with her known political bent, they were still much, much better left unsaid by a member of the Supreme Court. There’s a good reason the Code of Conduct for United States Judges flatly states that a “judge should not . . . publicly endorse or oppose a candidate for public office.” Politicization, real or perceived, undermines public faith in the impartiality of the courts.

More generally, we might say that the Constitution expects elected officials to weigh in on ordinary political matters and to take partisan stands because part of what it means to be a good elected representative is to advocate for one’s constituents. By constitutional design, members of Congress (for example) represent a part of the whole community, and they are supposed to communicate the needs of that part to the whole—as well as the needs of the whole to their respective part—in a way that conduces to harmony between the two.

Presidents, too, are elected officials, and they play a fundamental role in national policymaking; so it makes sense for them to be permitted to weigh in on matters of political discussion, defending the views that they and their party support and criticizing alternatives. At the same time, as Jeffrey Tulis has shown in his classic book, The Rhetorical Presidency, because presidents are elected to a constitutional office that represents the entire country (and not just one electoral constituency), they have rhetorical responsibilities that members of Congress do not.

Constitutionally, presidents play a significant role in the legislative process, which inevitably makes them partisans of particular measures and policy positions. But they are also in charge of enforcing the law, which means there is a limit to how much political discretion they can ultimately exercise: they are administrators as well as legislators. What is more, presidents have the solemn duty to command the nation’s armed forces, a duty that should temper their speech and conduct. For this reason, as Tulis shows, Americans in the nineteenth-century for the most part expected presidents to keep out of everyday politics, and to stay above the partisan fray in their spoken utterances to the public. Presidents who did not, such as Martin Van Buren and Andrew Johnson, were punished for their indiscretions. And though Woodrow Wilson changed these expectations through his new interpretation of the constitutional order, until Trump, presidents still felt compelled to toggle between a rhetorically-activist mode à laWilson and the more dignified and reserved posture of their nineteenth-century predecessors.

In contrast with presidents and members of Congress, judges represent no popular electoral constituency, and their role is to adjudicate cases arising under the Constitution in an impartial manner. Accordingly, the way they speak to the public must reflect the particular burden that the Constitution places on them. What is that burden?

Officials in the early republic were forced to grapple with this question when Associate Justice Samuel Chase, a vehement Federalist, litigated a series of demagogic harangues against the Jefferson Administration directly from his judicial bench. In one instance, Chase publicly instructed a Baltimore jury as to how they should vote in a particular case—a clear violation of the Constitutional principle that juries should be “impartial” (U.S. Const., Amendment VI), i.e., that they should use their own independent judgement in deciding cases.

A heated debate then ensued over whether Chase’s speeches were impeachable, and in 1805, the House brought charges of impeachment against him. In particular, the eighth article stated that

Samuel Chase, disregarding the duties and dignity of his judicial character, did, at a circuit court…pervert his official right and duty to address the grand jury then and there assembled, on the matters coming within the province of said jury, for the purpose of delivering to the said grand jury and intemperate and inflammatory political harangue, with intent to excite the fears and resentment of the said grand jury…a conduct highly censurable in any, but peculiarly indecent and unbecoming in a judge of the Supreme Court of the United States, and moreover, that the said Samuel Chase…under pretense of exercising his judicial right to address the said grand jury…did, in a manner highly unwarrantable, endeavor to excite the odium of the said grand jury, and of the good people of Maryland, against the Government of the United States, by delivering opinions which, even if the judicial authority were competent to their expression, on a suitable occasion, and in a proper manner, were at that time, and as delivered by him, highly indecent, extra judicial, and tending to prostrate the high judicial character with which he was invested, to the low purpose of an electioneering partisan

Chase was successfully impeached by the House, but the Senate vote to remove him on the eighth count (19-15) fell short of the two-thirds supermajority needed. Accordingly, as Keith Whittington has argued, the precedent set by Chase’s acquittal helped construct judicial autonomy in the political sphere by establishing a relatively high burden of proof for what counted as impeachable conduct by judges.

Nevertheless, what scholars tend to overlook in the Chase impeachment are the robust notions of official responsibility that officials of the early republic held and were capable of debating—notions that contrast with the thin (indeed, impoverished) conception of official responsibility espoused by Trump’s lawyers. Of the eight articles of impeachment, the eighth, which concerned Chase’s rhetoric, garnered the most support in favor of removal. Furthermore, debates in the Annals of Congress show members of both houses putting a great deal of thought into why judges should be held to a different set of rhetorical standards from other public officials. And, even though the Senate failed to reach the two-thirds supermajority needed to remove Chase, the capaciousness of their debates over judicial speech should give us food for thought in trying to make sense of what constitutes an impeachable offense and, by the same token, what kind of public speech we should expect from judges and political officers, generally.

A more recent example of judicial demagoguery is that of Justice Alito, who on November 13, 2020 delivered a Zoom address to the Federal Society which, among other things, criticized the COVID protocols of individual states and singled out those of Nevada. With a relevant case (Roman Catholic Diocese of Brooklyn, New York v. Cuomo) then pending before the Supreme Court, Alito vehemently expressed his partiality for overturning such regulations. Stated Alito:

The COVID crisis has served as a sort of constitutional stress test and in doing so, it has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive fiat, rather than legislation. The vision of early 20th century progressives and the New Dealers of the 1930s was that policymaking would shift from narrow-minded, elected legislators to an elite group of appointed experts. In a word, that policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies, acting under broad delegations of authority, churn out huge volumes of regulations that dwarfed the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic? Sweeping restrictions imposed, for the most part, under statutes that confer enormous executive discretion.

Statements like these made it clear that Alito viewed many or all of the measures taken by states to insure public health during an unprecedented pandemic as illegitimate, even as he was preparing to hear arguments for and against those very measures.

How should we think about this kind of speech in light of a judge’s particular rhetorical responsibilities? Alito’s simplistic arguments about “disturbing trends” in administrative regulations do not seriously engage with constitutional interpretation or political thought. They do not seriously engage with past Supreme Court opinions that defend the administrative state on Constitutional grounds, or with scholarship, such as Sotirios Barber’s, that shows how modern American bureaucracy and the welfare state are supported by the best understanding of the Constitution itself. Rather, they are a kind of demagogic shorthand for familiar Republican-Party talking points about the evils of progressivism and government regulations of any kind, clearly intended to rouse the angry passions of his audience and to prejudice them in favor of a particular outcome in the very cases he himself was in the process of deciding.

None of this is to say Alito should be impeached for this speech, or that what he said comes close to Trump’s speeches and Tweets on and preceding January 6. Rather, negative reactions to politically-charged utterances by Chase, Ginsburg, and Alito are illustrative of a partially-buried though nonetheless vital intuition that the Constitution has embedded in our political culture, and that continues to shape our political judgements and understandings in ways that we are only dimly aware of.

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