A Constitution is not a calculator. Yet when constitutional questions become uncomfortable, there is always a temptation to reach for one.
Two-thirds of 24 is 16. Simple enough.
Except that the Constitution, unlike an elementary-school worksheet, asks what happens when some of those being counted cannot actually participate.
That is the question before the Senate impeachment court, which invited retired Supreme Court justices as amici curiae, or “friends of the court,” to help interpret “two-thirds of all the Members of the Senate.”
Former Chief Justice Hilario Davide Jr., who helped frame the 1971 and 1987 Constitutions and presided over the impeachment trial of former President Joseph Estrada, said the denominator should be senators qualified to vote, rather than automatically all 24 members.
Former Chief Justice Artemio Panganiban cautioned against reducing constitutional interpretation to “abstract mathematics,” while former Chief Justice Reynato Puno said a strictly literal reading could produce absurdities and injustice.
Which is precisely why amici curiae matter.
They do not decide who wins. They help ensure the law is examined from more than one angle before somebody declares that the calculator has spoken.
Panganiban argued that the impeachment court, being sui generis, should be guided by truth and fairness. Should a senator who is detained, hospitalized, abroad, or otherwise unable to hear the evidence still count in the denominator?
Davide warned this could create “ghost votes,” giving an absent senator the curious power to influence a verdict without hearing a single witness.
But former Associate Justice Adolfo Azcuna, also a framer of the 1987 Constitution, offered the contrary view. If someone remains a senator, he argued, that person remains part of the denominator, except in cases such as death, resignation, or removal.
Suddenly, 16 is no longer just 16.
It becomes a question of what the Constitution means when its words encounter circumstances its framers could not neatly anticipate.
Perhaps that is the genius of a Constitution. Its strength lies not only in prescribing rules, but in creating a flexible system that prevents tyranny while trusting institutions and citizens to govern through shared power.
Flexibility, however, is not permission to improvise. Interpret the Constitution too loosely, and almost anything can be made to fit. Interpret it too mechanically, and the law may become perfectly tidy while producing an untidy injustice.
The point of constitutional construction is not to make the Constitution say what we prefer.
It is to make its principles work.
Because the Constitution was written for human beings living through messy circumstances, not numbers sitting obediently in cells.
Sometimes, the hardest constitutional question is not what the arithmetic says.
It is whether the arithmetic has understood the Constitution.
