A propos of Allan Ides' post, I didn't take Eugene to be arguing that a strong distinction lies between constitutional law and the relevant underlying facts. I agree with Allan (and Judge Posner) that no such distinction can be clearly drawn, but I took Eugene's point to be narrower than that -- simply a suggestion that the more disconnected the factual discussion becomes from the legal discussion, the more likely it is that the discussion will be either inexpert or unhelpful (not to mention partisan). Particularly with regard to the question of lack of factual expertise, I would think that suggestion is squarely in line with Posner's own views.
In any event, to politely take Prof. Barksdale's posting as an example, it seems the more broadly fact-oriented these posts get, as opposed to a narrow focus on immediately relevant and falsifiable facts, the more the discussion runs the risk of becoming question-begging or unresolvable. For instance: -- whether the President was or was not "democratically elected" begs the underlying jurisprudential question: is a President elected by an election process that includes recourse to the courts a "democratically elected" President? It's not clear to me that "democratic" has enough content to distinguish it from "legitimate." All the passion that has been or could be expended on the list on the facts of the election can't, it seems to me, elicit a meaningful response to this legal/philosophical question. -- whether or not impeachment is an inherently political process (I would say it is a somewhat artificially constrained but political process) is a fair topic for debate. But if the purely political nature of the impeachment process is assumed arguendo, what can constitutional law teachers contribute to the remaining discussion, which will be a series of politically informed debates about the truth or relevance of various underlying facts? Nothing more or less than millworkers, bartenders, Sean Wilentz, or anyone else, as far as I can see. -- Similarly, once the political nature of impeachment is assumed, any discussion of the strength or weakness of the Administration's claims about WMDs, the strength or weakness of its arguments for military intervention, and whether any errors or omission were willful seems off-list in the sense that there is no sticky question calling for lawyers' skills, let alone constitutional lawyers' skills. Of course, many more narrowly factual discussions may still yield light on constitutional debates. Moreover, one can in in any event contest the idea that impeachment is inherently political, or at least cabin the discussion by asking whether a false statement by the administration would violate federal law, whether it would be justiciable, and/or whether that violation would be impeachable. I should note that I take no position on any of the underlying factual issues presented above or in earlier posts. I do admit to the more prudential, but distinctly constitutional view, that a constitution that did not allow politicians, at least in a range of potential instances, to be dishonest, disingenuous, or manipulative without the automatic intervention of the legal system would not be a very practicable one. Whatever the outer scope of that freedom should be, the remedy for such behavior should generally be electoral, not legal. Paul Horwitz Visiting Lecturer, Univ. of Iowa School of Law
