Academic journal article
By Katyal, Neal Kumar
Law and Contemporary Problems , Vol. 63, No. 1-2
NEAL KUMAR KATYAL [*]
In the past year, America experienced an intense constitutional debate waged in its newspapers, kitchens, and internet chat rooms. This debate was remarkable, and not only because a constitutional issue--the meaning of "high crimes and misdemeanors"--managed to capture the attention of the public. It was also striking because the constitutional argument took place outside of the one institution that many understand to be the primary interpreter of the Constitution, the Supreme Court.  For a textualist, this omission should not be surprising, as the Constitution vests the judiciary with virtually no function in impeachment. Yet the removal of the judiciary from impeachment highlights the ways in which our legislature is called upon to make interpretive constitutional decisions.
During the interpretive debate over whether to impeach President Clinton, Democrats in Congress accused their Republican colleagues of being inconsistent in their approach to constitutional interpretation (and vice-versa). The Democrats argued that "high crimes and misdemeanors" had a very narrow meaning at the founding of the Constitution, and the Republicans responded by arguing that they should not be hemmed in by a two-century-old interpretation of a living document. Consider, as one example, what Representative Maxine Waters said during the impeachment debate:
I am absolutely amazed at the liberal and loose interpretation of the Constitution that I'm hearing from conservatives. Usually, progressives are accused of loose interpretation and usually conservatives are considered to have strict interpretation of the constitution and law. But sitting in this committee, I have witnessed the most--the loosest interpretation of the Constitution, as my colleagues on the other side of the aisle have dealt with the meaning of high crimes and misdemeanors. 
The party of originalism had thrown in the towel, and all for political points to boot.
This essay contends that this attack on the Republicans was wrong. In defending the Republicans, I am not interested in their political motivations (if any) but rather the jurisprudential issues that their position raised. I argue that one can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. Originalism, as practiced in this way, is a doctrine that constrains unelected judges from an unduly free interpretive approach, but it does not preclude Congress from making constitutional judgments that are more flexible and nuanced.
At stake in this project is something larger than the debate over originalism. Constitutionalists have assumed, too quickly in my view, that symmetry should exist between the interpretive styles of the courts and Congress. This assumption, which I shall call the myth of interpretive symmetry, slights the many reasons why an interpretive method may work well in one area and not work as well in another. Instead of mapping out all these possible divergences, I illustrate the point with three examples: the roles of history, precedent, and moral philosophy. I show how, in each instance, arguments can be made to suggest that divergent institutional roles should be taken into account in formulating a comprehensive interpretive philosophy about the Constitution.
This essay largely concentrates on the first example, the role of history. It contrasts two prevailing theories of constitutional law, legal process and minority protection, and argues that implicit in each theory is an account of why the role of history might differ depending on whether the decisionmaker is the judiciary or Congress. It is well established at this point that the ultimate purposes of the Constitution will influence what style of interpretation is appropriate. What this essay seeks to show is that those purposes counsel different interpretive theories for different constitutional actors. …