James Madison Disagrees with the Wall Street Journal

There are days when one wishes that James Madison was still alive—and on Twitter. Today is one of those days. Also, absurd-looking Second Amendment cosplay could be costly in the battle for hearts and minds. And, finally, a confusing transcript leads NPR’s legal affairs correspondent to make an important religious liberty mistake. Today’s French Press:

1. Yes, of course, Congress should be able to impeach (and remove) presidents who commit even lawful acts with a “corrupt purpose.”

2. Open carry is almost always rude, and fake-soldier versions of open carry harm the gun rights movement.

3. No, the Supreme Court won’t force states to spend “billions” on religious schools.

A largely forgotten constitutional ratification debate in 1788 matters today.
From the moment I started my day today, I’ve had a number of readers and friends ask my thoughts on the Wall Street Journal editorial board’s editorial condemning the House’s so-called “corrupt purposes” impeachment. It endorses a letter from 21 state attorneys general condemning the very idea that impeachment and removal is appropriate when a lawful act is undertaken for a corrupt purpose. The AGs argue (and the Journal agreeds), that “[i]t cannot be a legitimate basis to impeach a President for acting in a legal manner that may also be politically advantageous. Such a standard would be cause for the impeachment of virtually every President, past, present, and future.”

James Madison would disagree, and he stated so quite plainly during the Virginia constitutional ratification debate, in the midst of a dispute with George Mason over whether the proposed Constitution granted the president far too much power, including the power to pardon. A 2018 Brookings essay by D.W. Buffa describes the scene:

On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled by what he thought of the convention’s failure to understand—the president of the United States might not always be someone of sound character and high intelligence. There would rarely, if ever, he reminded the delegates, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence.

As Buffa relates, the Virginia convention contained a battleship row of key American founding fathers: 

Some of the most famous men in American history were there that day as delegates to the Virginia convention. Patrick Henry, afraid that a national government would destroy the states, was leading the fight to reject the Constitution. John Marshall, who, as Chief Justice of the Supreme Court, would do more than anyone to make the Constitution the foundation for the kind of strong national government Henry feared, was one of the leaders in the fight to ratify it. But there was no one—no one in Virginia, nor in the country—with a deeper understanding of the Constitution and what it meant than James Madison.

Mason argued that the power to pardon was so broad that an evil man could abuse it to “destroy the republic.” It was so broad, it “could stop inquiry and prevent detection” of a president’s schemes. Madison responded that even the extraordinarily broad power of the pardon—an otherwise-unreviewable absolute constitutional power of the presidency—was subject to checks through impeachment. And note well Madison’s language:

There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.

Even in the face of the power to pardon—a more absolute power than the president’s power to conduct diplomacy—Congress can impeach and remove him when the president is connected “in any suspicious manner” with the pardoned person and has “grounds to believe” the president “will shelter [protect] him.” What does that represent but endorsing grounds for inquiry into not just the concrete actions, but also the intent behind an exercise of an otherwise-lawful presidential power. 

Moreover, Madison considered impeachment “indispensable” for addressing the potential “incapacity, negligence or perfidy of the chief Magistrate.” The determination of perfidy by necessity requires an inquiry into both actions and intent. 

It’s also worth noting that the charge of “corrupt purpose” is not a synonym for “politically advantageous.” Good trade deals are politically advantageous. Arms control agreements can be politically advantageous, and so can treaties and alliances, or decisions to fight wars or make peace. But in every example above, there is a nexus between the political advantage and the public interest. 

The core flaw in the “perfect” call is that Trump is injecting his diplomacy with purely personal requests, in furtherance of a scheme conducted by his personal attorney. There is no nexus with the public interest. In fact, the public interest is remarkably ill-served by requesting that a desperate, dependent ally conduct an investigation of a truly bizarre conspiracy theory as a “favor” after requesting vital military aid. The public interest is also ill-served by requesting that this same desperate, dependent ally conduct an investigation of the president’s potential political opponent.

Many of the president’s defenders are attempting to make categorical defenses of the president’s conduct. This is understandable. If one can argue that his actions simply don’t fit in the category of conduct that the founders intended to be subject to impeachment, then one doesn’t have to defend the actions themselves or even seriously ponder the gravity of the president’s wrongs. This is a tactic that good defense attorneys use, and the president is surrounded by good defense attorneys.

But the jury doesn’t have to buy it, and the jury shouldn’t buy it. Donald Trump conducted diplomacy for personal gain—and not for public benefit. That’s corrupt conduct. That’s perfidy. And I tend to believe that James Madison would agree. 

A few thoughts on open carry and Second Amendment cosplay. 
On Monday more than 20,000 gun rights advocates gathered in Richmond, Virginia, to protest potential new gun control laws under consideration by Virginia’s Democratic state government. Despite fears (sometimes hysterical fears) expressed on Twitter and elsewhere, the event was peaceful. There were no significant civil disturbances. There were even videos that circulated online of protesters diligently picking up trash before they left.

I’m not remotely surprised the event was peaceful. I’m not remotely surprised that protesters even attempted to tidy up the grounds. I’ve spent most of my life in the heart of America’s gun culture, and that’s just how the vast majority of America’s gun rights advocates are—law-abiding (the best available evidence indicates that concealed-carry permit holders are more law-abiding than the police), responsible with their firearms, and remarkably effective at making the case for the Second Amendment. American gun rights have enjoyed a breathtaking, 30-year expansion.

But I’d like to raise one note of caution. Large numbers of protesters open-carried AR-15s and other weapons. A subset of protesters open-carried AR-15s while also wearing tactical gear that made them look like they were cosplaying SEAL Team Six. 

Open carry unsettles lots of Americans, and open carry while mimicking a cartoon version of a militia unsettles them even more. Perhaps that was the goal—to “own the libs” so they’ll say silly things on social media, or perhaps to just make them feel afraid. 

To be sure, there are places where open carry is no big deal. I just moved from a rural Tennessee town where it wasn’t all that strange to see someone open-carrying a handgun. I remember standing behind an elderly gentlemen at a pharmacy who was open-carrying two beautiful pearl-handled pistols. No one seemed alarmed. Instead, a couple folks complimented him on his weapons. 

But my advice to gun rights advocates is simple—know your audience. If I carry a weapon to protect myself and those around me, I don’t also want to unsettle or alarm those same people. As I said on the latest edition of The Dispatch Podcast (listen and subscribe!), when I carry, I want the people around me to be simultaneously at ease in my presence and safer in my presence. 

Concealed carry accomplishes both goals. Open carry, by contrast, undermines both. Outside of a few (mainly rural) communities, it unsettles the people around you and renders you an immediate target for anyone with criminal intent. They’ll deal with the obvious threat first.

I’m not sure that anything can be done to stop the cosplay. America is full of subcultures, and one of them is plainly enamored with looking like a middle-American version of a Third orld militia. But there are many other, far more reasonable Second Amendment activists, and they should send a message—open carry is not the face (or the practice) of the gun rights movement. 

When a Supreme Court case is important, but not that important. 
Earlier this morning, NPR’s Nina Totenberg wrote about yesterday’s oral argument in Espinosa v. Montana Department of Revenue (I also wrote about the argument today at The Dispatch), and it seems that a confusing transcript led her to make a mistake that dramatically inflated the importance of the case—and its potential threat to public school funding.

The case is relatively simple—Montana created a modest private-school tuition scholarship program that helped needy students attend private schools. The Montana supreme court struck down the program because some of the money went to religious schools, and Montana’s constitution prohibits funding religious education.  

The goal of the petitioners is to further establish and reinforce existing constitutional principles of legal equality. The state, they argue, can’t exclude religious schools from neutral public programs that support private schools simply because they’re religious. Secular and religious private schools should be treated the same. Any other result renders the state hostile to religion, and anti-religious hostility violates the Establishment Clause. 

In the opening paragraph of her piece, Totenberg says that the decision in favor of the petitioners would “work a sea change in constitutional law, significantly removing the longstanding high wall of separation between church and state.”

This argument raised my eyebrows. I don’t think the case is nearly that consequential. Later in the piece, however, was an important claim that made me understand why she sees the case in such dramatic terms. Here’s Totenberg:

Justice Stephen Breyer wondered where the plaintiffs’ equal-treatment argument would end. He noted major school systems spend billions in taxpayer money to fund the public schools. “If I decide for you,” he asked, would these school systems “have to give proportionate amounts to parochial schools?”

Deputy Solicitor General Jeffrey Wall, representing the Trump administration, basically answered “yes.”

The phrase “big, if true” comes to mind. Was the Trump administration arguing that state governments should have to pour vast sums of government money into religious schools—funding them proportionally to public schools? If so, that would represent a massive expansion of government aid to religious schools, and it would likely require substantial cuts to public schools if millions of kids in private schools were funded at equivalent rates.

But the Trump administration did not “basically” answer yes. It explicitly answered no. There was a confusing back-and-forth where it was clear that Wall wasn’t following Breyer’s question (Wall was confusing charter schools—which are public—for private schools), but then Wall says this:

MR. WALL: If — if a city or state  gives out funds for private education, which it’s not required to do, it can limit its funding to public schools, but if it gives it out and it gives it out just for scholarships for private schools—

JUSTICE BREYER: My hypothetical was they give it out and it’s called the public school system of the United States. I’m saying that’s what I’m talking about. Now, what’s your response? What’s the difference between this case, you win, and the same with the public schools, they have to give it to parochial schools too. What’s the difference? 

MR. WALL: Justice Breyer, what I’m saying in the last paragraph of Trinity Lutheran, when the Court said you can’t deny a generally available public benefit to an entity that’s otherwise qualified based solely on its religious character or nature. (Emphasis added.)

What’s happening here? Wall is saying that the government doesn’t have to fund private education at all. But if it does create a program that funds private education, it can’t exclude a religious school simply because it’s religious. Funding public education does not create an obligation to fund private education. The case does not present the kind of direct threat to public school finances that Totenberg fears.

One last thing … 

I’m not yet ready to give my official, much-coveted Super Bowl prediction, but if I’m the Niners, I’m thinking about this:

Photograph of the House impeachment managers being led to the Senate chamber by Alex Wong/Getty Images.