When it comes to impeachment trials, the Constitution should be read as written.

US Supreme Court Justice Antonin Scalia was wont to say: “The Constitution is not a living organism. It’s a legal document and it says what it says and doesn’t say what it doesn’t say.”

That principle is important amid current confusion over how constitutional interpretation should be conducted. Differences in legal opinion are natural. It is an entirely different matter, however, when an interpretation disregards the clear text of the law to achieve a political or policy objective. This is one unfortunate consequence of the now-discredited “living constitution” theory.

For impeachment trials, Article XI, Section 3 of the Constitution explicitly provides: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

The Senate has 24 members under Article VI, Section 2. Therefore, two-thirds is 16.

If the Constitution intended the denominator to include only senators able to vote or actually present, it could easily have said so, as it did in Article VI, Sections 16, 23, and 26, concerning a quorum, the declaration of a state of war, and the passage of ordinary legislation, respectively.

Article XI, Section 3, uses different and clear wording: “all the Members.” In addition, there is a legal presumption that laws—particularly penal provisions, which impeachment provisions can arguably be considered—are to be interpreted in favor of the accused.

Why does the Constitution say “two-thirds” instead of simply specifying 16? The language follows traditional wording and provides uniformity between the two Houses of Congress. In the House of Representatives, which also refers to “two-thirds” and “all the Members” thereof, the denominator can change because redistricting may alter the size of the House. The Senate, by contrast, is fixed at 24 members.

The same computation applies to concurrence on treaties under Article VII, Section 21.

Article I, Section 3 of the US Constitution, which concerns impeachment trials, uses the following language: “No person shall be convicted without the concurrence of two thirds of the members present.” The US Constitution also uses “two thirds,” but immediately qualifies it with “of the members present.” Although the Philippine Constitution was admittedly patterned after the US Constitution, it could have adopted the same wording. It did not. Instead, it requires concurrence “of all the Members.”

Some argue that the phrase “When sitting for that purpose” in Article XI, Section 3 indicates that the two-thirds computation should be based on a varying denominator. That interpretation is eccentric. The phrase plainly indicates that when senators sit as members of the impeachment court, they must first take an “oath or affirmation,” because those duties are separate from their ordinary legislative responsibilities. It does not alter the constitutional requirement of two-thirds “of all the Members of the Senate” for a conviction.

Another argument is that only senators who have taken their oath as impeachment judges should be counted. But the Constitution does not say two-thirds of “senator judges” or two-thirds of the senators who took their oath as senator judges. Article XI, Section 3 is direct: “No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.”

Those who support varying denominators try to reinforce their position by raising hypothetical situations, such as what should happen if a senator is in jail, out of the country, or otherwise unable to participate. That approach relies on the “perfect solution” fallacy—an unrealistic demand for absolute perfection. A generally valid rule or solution should not be rejected merely because it does not address every rare or extreme scenario.

Whatever circumstances may arise, the Constitution still requires 16 senators to convict in an impeachment trial.

Does this make impeachment more difficult because every absent, incapacitated, or otherwise non-participating senator effectively becomes an acquittal vote? Yes. That is the intended result. The Constitution deliberately set a high bar because the conviction of an elected high official was meant to be difficult.

A different approach could enable or encourage those seeking a conviction to remove or incapacitate senators believed to favor acquittal. That would leave a diminished Senate composed largely of senators supporting conviction, who could then prevail through a manufactured, lower majority. Such a result would be contrary to the republican and democratic rule-of-law orientation of the constitutional system.

It is difficult to justify a system in which the people go through the rigorous process of electing national officials only for their will to be easily overturned by a small number of senators.

If the argument is that the Constitution does not adequately address situations involving absent senators, the democratic solution is to amend the Constitution. That is preferable to disregarding its text or inventing an interpretation merely to achieve a temporary political objective.

Jemy Gatdula is the dean of the UA\u0026P Law School and a Philippine Judicial Academy lecturer in constitutional philosophy and jurisprudence. The views expressed here are his own and not necessarily those of the institutions to which he belongs.

Twitter @jemygatdula