Foreword

America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox. Both Democrats and Republicans professed a rhetorical commitment to the rule of law while revealing a deep pessimism about the ability of courts, legislatures, or even citizens to transcend their biases and to converge, through deliberation, on impartial and democratically acceptable outcomes. The simplistic Supreme Court decisions that precipitated the impeachment - in particular, Morrison v. Olson,1 upholding the Independent Counsel law, and Jones v. Clinton,2 denying the President temporary immunity from civil suits while in office - were based on the principle that the President should not be above the law, a principle repeatedly invoked by both parties in the House and the Senate; but the content of the congressional deliberations revealed an unsettling cynicism about the malleability of legal argument.

Both sides embraced interpretive methodologies that they had rejected on previous occasions, as the President's accusers praised the virtues of a living Constitution while the President's defenders insisted on the importance of original understanding. Perhaps most jarringly, after declining to engage each other's arguments, the two parties in the House and Senate divided more or less along party lines. The partisan character of the votes on the articles of impeachment seemed to reinforce the partisan character of law itself.