Over at the Originalism Blog, Mike Ramsey has responded to my post arguing that the Constitution’s textual rule allowing the Vice President to be the presiding officer at his own impeachment trial is absurd and should not be enforced. I have a couple of points to make in response to Mike’s arguments, so I will devote a couple of posts to the subject.
I agree with the basic proposition [that Rappaport argues] that we should use interpretive principles of the time, to the extent they were widely understood and accepted, to find original meaning.
But he then writes:
I don’t think the absurdity principle means what he thinks it means. In Reading Law, pp. 237-38, Scalia and Garner say:
[E]rror-correction for absurdity can be a slippery slope. It can lead to judicial revision of public and private texts to make them (in the judges’ view) more reasonable. To avoid this, the doctrine must be subject to two limiting conditions:
(1) The absurdity must consist of a disposition that no reasonable person could intend …[and]
(2) The absurdity must be reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error … The doctrine does not include substantive errors arising from a drafter’s failure to appreciate the effect of certain provisions.
The problem here is that Mike is not using the right authority. I like Scalia better than the next guy, but he is simply a Supreme Court justice and his views are not evidence of the views of the Framers’s generation. The first condition is pretty close to the version of the absurdity rule that I offered in my post from Chief Justice Marshall. But the second condition is not, as far as I am aware, from the Framing era sources.