Today I want to return to a subject mentioned in a prior post relating to the 1799 impeachment trial of former Senator William Blount for acts committed prior to his expulsion by the Senate. Blount’s offenses, though not directly connected to his service in the Senate, were serious. Blount concocted a scheme to get himself out of financial difficulties by starting a war in which Indians and frontiersmen would attack Spanish Florida and Louisiana for the purpose of transferring those territories to Great Britain. A little light treason, as they might say on Arrested Development.
Nonetheless, Blount’s impeachment was dismissed after the Senate, by a relatively close vote of 14-11, decided that it “ought not to hold jurisdiction of the said impeachment.” The Senate’s deliberations were secret and its order of dismissal did not specify why it had reached this decision. However, the conventional view or interpretation (as I will refer to it herein) is that the Senate was persuaded by Blount’s defense that senators are not “civil officers of the United States” and therefore not subject to impeachment.
This conventional view has been challenged in modern times, most prominently by Professor Buckner Melton, a leading scholar of the Blount case. Professor Melton argues that because there were three different jurisdictional arguments made by Blount’s defense, it cannot be assumed that the Senate acted because of the “officer of the United States” issue:
Given all the possibilities the arguments had raised, the silence of the motion to dismiss as to the specific jurisdictional reasons for the dismissal is crucial. Given that silence, the dismissal cannot be taken clearly to mean that Senators aren’t civil officers or that they aren’t subject to impeachment. It may mean that; it may not. We simply don’t know.
Buckner F. Melton, Jr., Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33, 38 (2014). He argues that “nowhere in the Blount proceedings did the Senate establish any rule or precedent that Senators cannot be impeached.” Id. at 36.
At the outset we should distinguish among three potential reasons why the decision in the Blount case might be important. The first is that as a founding era decision of the Senate, it could shed direct light on the original meaning of the Constitution. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer as consistent with the First Amendment in large part based on congressional practice dating back to the First Congress); id. at 790 (“In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent.”). For this purpose the weight given to the Blount decision might depend not only on the closeness of the vote, but also on who (i.e., framers and/or ratifiers) voted each way.
A second and distinct reason for the Blount case’s potential significance is that signified by the conventional view, namely that the case constitutes an authoritative congressional precedent for the proposition that senators (and by extension members of the House) are not impeachable “civil officers of the United States.” Such precedents are recognized both by the courts and Congress, though it is fair to say that the courts have been ambivalent about the weight to give them. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 817-19 (2015) (citing favorable congressional precedent while suggesting that a contrary, but divided, precedent should not be relied upon due to likely political motives underlying it); id. at 824-25, 837-39 (Roberts, C.J., dissenting) (accusing majority of ignoring the controlling congressional precedent); Powell v. McCormack, 395 U.S. 486, 546-47 & n.85 (1969) (casting doubt on the value of congressional precedent, apart from its utility in illuminating the intent of the framers). On the other hand, Congress, the most important constitutional actor with regard to impeachment, tends to take its own precedents rather seriously. And as discussed further below, the Blount case (and the interpretation which followed it) should be understood as a particularly significant type of congressional precedent, one which satisfies the criteria for “constitutional liquidation” (a term which is not as ominous as it sounds).
The third reason why the Blount case may be considered important, and the one which has given the case some attention in recent months, relates to the interpretation of section 3 of the 14th amendment. As we have discussed previously, the Blount case helps to explain why the framers of section 3 thought it necessary, or at least prudent, to separately enumerate senators and representatives, rather than assuming they would be covered by the general categories of “officer of the United States” and “office . . . under the United States.” It should be noted that the Blount case’s relevance here does not necessarily depend on its precedential status; what matters for the section 3 issue is what the framers of the 14thamendment thought the Blount case stood for, not whether their view was correct. Even those who question the Blount case’s precedential status, such as Professor Lederman, acknowledge that there was “ongoing debate and uncertainty” at the time of the 14th amendment’s framing about whether members of Congress were officers of the United States, which could explain the decision to separately enumerate members out of an abundance of caution.
Our subject today, however, is only the second of these three reasons—the precedential status and effect of the Blount case apart from any bearing it might have on original meaning. I will endeavor to show, contra Professors Melton, Lederman and others, that the conventional view of the Blount case is in fact the correct one. Continue reading “The Blount Case and Congressional Precedent”