Legalistic Arguments Are Irrelevant Outside of Court
A very common mistake in public argumentation
I’m picking a bit of a low hanging fruit here, but the reasoning expressed by Anthony Holden, apparently an expert on British royalism, about how King Charles’ coronation supposedly could be “invalidated” due to his admitted adultery, is actually a very common form of poor argumentation that we see all the time. Quite simply, legal arguments are worth nothing unless there’s a duly empowered court who can act on them.
Obviously, you don’t even need to be a Brit to understand this as a fatal flaw in Holden’s claim. Who gets to decide whether King Charles gets crowned? Well, quite obviously, King Charles does. He controls the royal family and all the royal institutions, and even if there was some small number of people in those institutions who are offended by an admitted adulterer taking the throne (emphasis on “admitted”, as surely upon that throne have sat many adulterous butts), they would not have any power to stop the coronation and would swiftly find themselves out of a job if they tried.
But, you might ask, wasn’t Edward VIII forced to abdicate because he took up with an American divorcee? Why yes, he was. But that wasn’t because of his legal ineligibility to the throne; it was because a critical mass of the people controlling royal institutions felt that he had to go because they didn’t want a ruling English monarch with a divorced American girlfriend or wife. Times were different back then, and of course, behind the scenes, Edward and Wallis were known to hold ugly political beliefs that would have been very inconvenient for the United Kingdom as World War II loomed. It’s hard to draw an exact analogue, but the best I could do is that if, say King Charles had been heavily involved with the Jeffrey Epstein scandal the way Prince Andrew was, that would probably cause the people who control the institutions to force him out (by refusing to coronate him) in a similar fashion to the way that Prince Andrew himself was blacklisted from the royal family.
Here’s the point, though— none of this involves the formal, legal qualifications for the office. These are issues about power, not legal reasoning. Queen Elizabeth II, for instance, did not have to consult a legal code to blackball Prince Andrew. She could just do it, and as long as the people around her supported it, and her, it was going to stick. That’s how power works.
But a distressing number of Americans don’t understand this. This comes up over and over again. Maybe the paradigmatic example is in impeachment debates. Every time there is a proposal to impeach the President, we get a huge public debate about whatever he did and whether it meets the technical standards of “high crimes and misdemeanors” under the Constitution. Law professors love this, because they get to pose as experts and expect to be deferred to as they describe the supposed intentions of the framers in setting the bar for impeachment wherever they set it.
But in actuality, impeachment has literally nothing to do with what law professors say. No Senator voting on an impeachment in United States history has actually listened to a law professor and taken her counsel in a material way (as opposed to citing one to justify a decision already made), and none ever will. The entire point of the impeachment provision was to put the process in the hands of politicians, who would make the inherently political decision as to whether to remove a President from office. And the most important consideration in every impeachment has been “what is the rest of my party doing?”. The second most important consideration is “do I think what the President did was more or less bad than my party’s position and, if so, can I get away with a vote that breaks from my party?”.
The key is that without a court to adjudicate impeachment cases (and under Nixon v. United States, a US Supreme Court decision, courts have no say in impeachment cases), legal arguments are just meaningless. Nobody making the decision actually cares about the technical definition of high crimes and misdemeanors— rather, they care about the political calculation.
And this mistake recurs over and over again. For instance, how many people have recently, in calling for for Clarence Thomas to recuse himself from SCOTUS cases, cited the recusal statute and even made grandiose claims about how Justice Thomas is violating the law if he does not do so? Well, who is going to enforce that law? That’s right, Justice Thomas gets to enforce it on himself. If he thinks that a case merits recusal, than it does. If he doesn’t, than it doesn’t. (That goes both ways, too— if you think Thomas recused himself in a case where he shouldn’t based on the technical legal standard for recusal, nobody can force him to sit on the case either.)
We see a lot of this in political debates. For instance, whenever a politician running for office meets with foreign leaders or starts trying to negotiate the release of hostages or something, someone will inevitably bring up the Logan Act, which purports to prohibit private American citizens from conducting diplomacy. “This is illegal!”, the person will say. Yeah, and have you noticed how nobody actually brings Logan Act prosecutions? This is because, generally, you don’t prosecute your political allies, and prosecuting your political opponents for hyper-technical legal violations not only looks petty but can hurt you at the ballot box.
Or how about birtherism? The claim that Barack Obama was born overseas, in addition to being ridiculous, was based on a broader fantasy that nobody talked about, but which has also recurred in political debates. Let’s say the American public did elect an ineligible presidential candidate. Who’s going to rule that? Who is going to actually attempt to depose a duly elected American President based on a claim that he was not a natural born citizen? There have been similar issues with the President and Vice President coming from the same state (also constitutionally prohibited)- who was going to try to remove Dick Cheney from office by saying he really lived in Texas and not Wyoming? And who in the executive branch was going to pay any attention to any such ruling? (Correction: Reader David Nieporent points out that the constitutional prohibition is only on a presidential elector casting votes for both a President and a Vice President from her own state. This rule still would have mattered in 2000 if Cheney was considered to be from Texas and not Wyoming, because the deciding electoral votes could have never been cast for the Bush-Cheney ticket. But it does not bar all same-state tickets; they just have to win the electoral college by a bigger margin than different-state tickets do.)
America has a very legalistic culture (as does Britain, by the way), so its inevitable that our discourse often defaults into legalistic argumentation. And political decisionmaking is decidedly unattractive- at its worst it can be corrupt, and even at its best, it is unprincipled. But one thing that recent Supreme Court history should tell us is that it is not as though handing political decisions over to judges strips them of their politics anyway; for instance, I suspect if the Supreme Court, rather than the Senate, had decided the last three impeachments, they would have produced party line votes in all of them. That is, after all, what happens in politically salient SCOTUS cases. It doesn’t make the decisions any better; it just politicizes the courts.
Which is why it is ultimately wise to commit a lot of these decisions to politicians. The problem is that the culture— and especially, I might add, lawyers and law professors— doesn’t want to accept this. We want to believe there’s some magical way to draft neutral rules that will bind the King of England and be consistently applied. And on the most political of issues, there simply is no such magic available.
I disagree with your premise as overly dogmatically legally realist. Politics matter — a lot — but laws matter too, even if they're not enforceable. People — even in the Trump era (!), but especially before — care about norms. Mike Pence really did consult a bunch of lawyers before refusing Trump's request to anoint him President for Life. The fact that they all told him that he couldn't do it _did_ matter. We saw Mike Lee's texts via the J6 committee, begging for a legal fig leaf to refuse to certify the election, and when they couldn't give him one, he didn't. Hell, almost every dictator in the world holds elections, so they can pretend that they are legally in office rather than just holding it via power.
No senator is going to delegate his impeachment vote to a panel of law professors, obviously. But if impeachability is genuinely unclear in a given situation, and professors "on his side" are telling him definitively one way or the other, it matters to some of them. Not Josh Hawley or Elizabeth Warren. But some.
Oh, and for the record, the constitution doesn't prohibit the president and vice president from coming from the same state. It just says that the electors _from that state_ can't vote for two from that state. (To be sure, in 2000 it would've cost Cheney the vice presidency, but only because he needed Texas's electoral votes to beat Lieberman.)
To dunk on yet another easy target, this seems a lot like the mistake sovereign citizens are making. Well, one of the mistakes at least. I'm sure you could go on at length why the legal arguments they're making don't actually hold up. But even if there was a clause hidden deep in the Articles of Confederation that writing your name backwards in a room with a gold bordered flag would release you from legal obligations and it magically still applied today, there are literally no courts that accept this reasoning. If a court's not going to enforce something, then it doesn't matter what your legal interpretation is, so I'm not really sure what they expect to happen.