Scalia Spotlights

Professors Kontorovich and Somin Square Off Over Impeachment Against a Former Official in “Discussion Over Division”

Impeachment Discussion
Clockwise from top left: JoAnn Koob, Dean Randall, Eugene Kontorovich, and Ilya Somin

On February 17, the Liberty and Law Center’s Discussion Over Division Program partnered with the law school to host a well-attended debate on the constitutionality of impeachment proceedings against a former government official, in this case the former President of the United States. Professors Kontorovich and Somin, both of whom have written extensively about this and collateral issues, were featured in the debate moderated by Dean Ken Randall.

After opening remarks by JoAnn Koob, Director of the Liberty and Law Center, and Dean Randall, each professor presented the background of and their arguments for (Somin) or against (Kontorovich) the constitutionality of the proceedings. The basis of Professor Kontorovich’s arguments centered on the text, or natural reading, of Articles I and II, the issue and its history in the United States, and then the problems arising from permitting such a structure to exist. Professor Somin’s arguments focused on the purpose of impeachment and the original meaning of the provision, as well as its historical application within both the British system and the United States, and he included a rebuttal of Kontorovich’s text and slippery slope arguments.

Following a period of further rebuttal, the debate turned to a series of questions from moderator Dean Randall and attendees, including whether impeachment could have proceeded against President Nixon following his resignation (Somin: yes); whether the First Amendment can be applied as a self-defense in impeachment proceedings (Somin & Kontorovich: no, but for differing reasons); and the role of the US Supreme Court, if any, in impeachment proceedings against a former official (Somin: no under current caselaw; Kontorovich: no depending on interpretation of “political question”).

At the conclusion of the debate, the students broke into sections to participate in small group dialogues over the issues. However, before departing, the speakers provided students advice on how to have a constructive dialogue with someone when you disagree:

  • Dean Randall: Really hear what the other person has to say and try to understand it before responding.
  • Ilya Somin: Think about the other person’s argument and understand its internal logic so that you can point out its flaws. Remain civil and calm, and you will make the other person more receptive to hearing your argument.
  • Eugene Kontorovich: It should be easy to have the discussion if you are really having a legal argument. If you are not staying calm, then you are not having a legal argument. Take the long view. The debates of today will be lost in history; the most important things are human relationships.

In his opening remarks, Dean Randall commented on the importance of exploring productive debate over difficult issues. Following the event, he noted, “As legal educators, it is important that we both model civil discourse and teach our students, future advocates, how to engage in it. This event hit both of those objectives, and I look forward to pursuing additional opportunities in the future.”