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Michael J. Klarman, Constitutional Fetishism and the Clinton Impeachment Debate, 85 Va. L. Rev. 631 (1999).

Abstract: This essay examines what the Clinton impeachment debate reveals about the nature of constitutional interpretation and the function of constitutional rhetoric in political debate. One striking feature of the impeachment debate was the certitude with which politicians and pundits espoused a variety of constitutional interpretations, notwithstanding the thinness of the constitutional law governing impeachment. After showing that the Constitution does not resolve most of the disputed issues raised during the Clinton impeachment, the essay considers the consequences of conducting a transparently political debate in constitutional terms. I argue, first, that debating impeachment questions in constitutional terms enabled politicians to evade responsibility for their actions. Second, by invoking constitutional rhetoric, Republicans implicitly tapped into the anti-majoritarian strand of constitutional law, without ever offering a justification for treating impeachment as an issue upon which minorities warrant protection from majoritarian decisionmaking. Finally, the essay briefly considers what the impeachment debate teaches us about constitutional interpretation.