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The real agents, the most important actors in the nation’s history, were, and are, the “you.” You have a task, which is to keep it. And what you are to keep is a republic, which is what the American Revolution was fought to establish, and which is opposed to what the colonies fought against: a monarchy, headed by a king, who could not be removed from office, and who could rule as a tyrant. From the Declaration of Independence: “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny
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The Constitution is not a seamless web. But it’s definitely a web.
Suppose that a president engages in certain actions that seem to you very, very bad. Suppose that you are tempted to think that he should be impeached. You should immediately ask yourself: Would I think the same thing if I loved the president’s policies, and thought that he was otherwise doing a splendid job? That’s a good way of ensuring the requisite neutrality. The impeachment mechanism isn’t a way for political losers to overturn the outcome of a legitimate election. Nor is it a way for the public to say: Our leader is doing a rotten job. Put differently, loathing a president is not
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Here’s a second test. Suppose that you do not think that the president should be impeached. You should ask yourself: Would I think the same thing if I abhorred the president’s policies, and thought that he was otherwise doing a horrific job? That’s an important question as well. If the president’s supporters do not think that he has committed an impeachable offense, they should test their neutrality by asking whether their judgment is being distorted by their political convictions.
Here’s a third test, and the best of all. Try to put yourself behind a veil of ignorance, in which you know nothing about the president and his policies. You have no idea whether he would win your vote or your support. All you know about are the actions that are said to be a basis for impea...
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The American constitutional order is meant to create a deliberative democracy, in which debate and discussion accompany accountability. This is not merely a system of majority rule, through which majorities get to do as they like simply because they are majorities. Reason-giving is central, and a deliberative democracy gives reasons.
Is this, was this, true? I'm not convinced we're adhering to this ideal.
Under English law, the House of Commons took the term “misdemeanor” to refer to distinctly public misconduct, including but not limited to actual crimes.6 Thus “high Crimes and Misdemeanors,” the standard basis for impeachment, represented “a category of political crimes against the state.”
the more important point is that the great cases involving charges of impeachable conduct in England usually involved serious abuses of the authority granted by public office, or, in other terms, the kind of misconduct in which someone could engage only by virtue of holding such an office.
In the crucial years between 1755 and the signing of the Declaration of Independence, impeachment was used as a weapon against abuses of authority that came from imperial policy. In this way, impeachment was a tool for the exercise of popular sovereignty, ensuring a close link between impeachment and republicanism in the colonies.
There is no question that in the colonies, violations of criminal law were not the only basis for impeachment. The focus was on “palpable misconduct and willful misuse of power.”12 In this qualitatively distinctive category, criminality was neither necessary nor sufficient.
impeachment itself was akin to an indictment.
Essentially all of the discussion focused on impeachment of the president, though as noted, the constitutional provision extends to all civil officers.
The delegates rejected that suggestion too, in favor of an approach supported by North Carolina’s Hugh Williamson, which would allow removal by “impeachment & conviction” on the basis of “mal-practice or neglect of duty.”30 That language is pretty broad; it seems to suggest that impeachment could occur for either bad actions (malpractice) or bad omissions (neglect). And indeed, Williamson drew directly from his home state, where impeachment was available for “offenses against the public interest which need not be indictable under the criminal law.”
George Mason was the most eloquent: No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? … Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?
Madison pleaded that it was “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient safeguard.”42 (There’s a lot there: incapacity, negligence, or perfidy.) He feared that the president “might lose his capacity after his appointment.” Madison was especially concerned that the president “might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”43 And if the president were
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the clear goal was to ensure that impeachment would be designed for offenses against the public as such, suggesting that we are speaking of abuses of official power (consistent with the American understanding of impeachment as it had evolved over time).
After the fact, Hamilton made it clear that he knew exactly what had been done: assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches. As the concurrence of two-thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.
The Constitution says, “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
When Mason withdrew the term “maladministration” and substituted “high crimes and misdemeanors,” he appeared to think that the phrase would simultaneously meet both Madison’s concern and his own. Whatever the precise meaning of “high crimes and misdemeanors,” the term includes “great and dangerous offenses.”63 That’s important.
At the same time, bad decisions, or politically objectionable decisions, are not sufficient grounds for impeachment, even if much of the nation is up in arms. The United States, unlike some other democracies, does not allow votes of no confidence.
Those who argued in favor of ratification seemed to suggest a pretty broad understanding of the legitimate grounds for impeachment—a bit broader than those who framed the provision in Philadelphia. That’s no surprise. Their goal was to defend the document and to suggest that it was sufficiently republican and did not come close to creating a monarchy.
If we are interested in knowing what reasonable readers of the Constitution thought that it meant in 1787, the arguments in defense of ratification are probably the best source.
Hamilton is a terrific place to start. In Federalist No. 65, he explained that the “subjects” of impeachment involve “the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
“High crimes and misdemeanors” are abuses or violations of what the public is entitled to expect. Moreover, we are speaking not of private misconduct (theft, assault, failure to pay rent) but of distinctly political offenses.
Hamilton’s claims should be taken as an echo of the textual idea, on which the delegates were unanimous at a late date, that the relevant high crimes and misdemeanors must run “against the United States.”
He scrupulously avoided any claim of that kind. Far more broadly, he emphasized “the abuse or violation of some public trust.” In his account, the phrase appeared to work as a simple summary of the technical term “high crimes and misdemeanors.” The Constitution’s
Some people were worried about the possibility that the president might be too friendly to other nations.
No crime is necessary. If the president is acting in an “atrocious” way that harms most of the states, he is committing a “misdemeanor,” even if no violation of the law is involved.
George Mason worried over the breadth of the president’s pardon power: “he may frequently pardon crimes which were advised by himself.… If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” Madison answered: “There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.”6 In Madison’s view, “This is
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In a brief remark a week later, he linked impeachment with the emoluments clause, emphasizing “another provision against the danger … of the President receiving emoluments from foreign powers. If discovered he may be impeached.”8 From the standpoint of the founders, the link made perfect sense. The emoluments clause protects the nation against officials who have been compromised by receiving gifts from foreign nations. Impeachment supplies the remedy in the event of a violation.
James Sullivan, writing influential essays under the name of “Cassius,” proclaimed: “Thus we see that no office, however exalted, can protect the miscreant, who dares invade the liberties of his country, or countenance in his crimes the impious villain who sacrilegiously attempts to trample upon the rights of freemen.”15 In my view, this point is central, even defining, because it connects the power of impeachment with the American Revolution itself. On this account, a violation of liberty or rights is an impeachable offense—even if it is not itself a crime.
Should he, however, at any time be impelled by ambition, or blinded by passion, and boldly attempt to pass the bounds prescribed to his power, he is liable to be impeached and removed from office; and afterwards he is subject to indictment, trial, judgment, and punishment according to law.”16
In Madison’s view, that would be a misdemeanor. Again, it wouldn’t be a crime—but as we have seen, a president can be impeached for offenses that are not crimes.
William Rawle, another early commentator, went so far as to say that the “legitimate causes of impeachment … can have reference only to public character, and official duty.… In general, those offences which may be committed equally by a private person, as a public officer, are not the subjects of impeachment.” In his view, “Murder, burglary, robbery, and indeed all offenses not immediately connected with office … are left to the ordinary course of judicial proceeding.”21 This was a contested view (and I shall contest
But there was general agreement that impeachment was designed to initiate a process to remove from office those who had abused their public power.
Impeachment is available for egregious abuses of official authority. Some crimes do not count as such, because they are essentially private (failing to pay taxes, punching someone, speeding) or because they are not sufficiently serious. Some offenses that are not crimes are nonetheless impeachable—punishing political enemies, trampling on liberty, deciding to take a year off, systematically lying to Congress and the American people. Such actions count as “high misdemeanors.” In some cases,
With respect to the Constitution, it’s best to avoid two mistakes. The first is to think that words are more precise and more conclusive than they actually are. The Constitution protects “the freedom of speech” and makes the president “Commander-in-Chief,” and those words have real meaning. But still, life turns up tough problems. Even in its republican context, the phrase “high crimes and misdemeanors” leaves some unanswered questions. You can stare at those words all you want, and read Hamilton, Madison, Mason, and all the rest, and you won’t squeeze out enough meaning to solve every puzzle.
second mistake is to conclude, from the existence of unanswered questions, that we are really at sea, or that high crimes and misdemeanors are whatever the House of Representatives says they are.
For orientation: everyone agrees that the text of the Constitution is binding.
Some originalists believe that what governs is the intentions of the framers—but they are in the minority. Justice Scalia and those who follow him do not speak of anyone’s intentions, but instead ask what the terms were originally understood to mean. That might seem like a subtle distinction, but it matters. Intentions are what can be found inside people’s heads. By contrast, public meaning is an objective social fact.
The best evidence is that they chose broad terms (the freedom of speech, liberty, due process of law) whose particular meaning would necessarily change over time, with new circumstances and fresh learning. According to Justice Anthony Kennedy, writing in the 2015 case that ruled that all states must recognize same-sex marriages: The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future
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One way to keep the republic is by being faithful to the text, but by specifying our own understandings about the precise meaning of “liberty.” As some constitutional theorists put it, the text sets out a broad “concept,” not a particular “conception.” The concept does not change, but the conception does.
Many of those who reject originalism have a different argument, and it’s more fundamental. They contend that their objection isn’t really about what members of the founding generations meant to do. They don’t rely on Kennedy’s claim about the judgments and understandings of long-dead people. They don’t believe in time machines. They insist that the basic question is how to interpret the Constitution, and we can’t resolve that question by asking about history. That is inescapably a question for us.
Whether we are bound by the original understanding depends on whether we conclude, on principle, that we should be bound by the original understanding. Those who reject originalism believe that our constitutional order is far better if we conclude that we are not bound. They believe that at least with respect to individual rights (where circumstances and values change), and perhaps with respect to constitutional structure more broadly (where again, circumstances and values change), we do much better to follow the text and pay respectful attention to the original understanding—without being
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Some people, like Justice Felix Frankfurter, have emphasized the importance of paying close attention to national traditions as they unfold over time. Traditionalists do not focus only on the founding generations. They ask about American practices over the decades and centuries.
In Frankfurter’s view, long-standing traditions can help us interpret ambiguous text, and they can even overcome the original understanding.
Justice Stephen Breyer argues that an animating constitutional ideal is “active liberty,” meaning active self-governance by We the People.7 In Breyer’s view, we should interpret ambiguous constitutional provisions with that ideal in mind. The general idea of “active liberty” can trump the original understanding. Breyer himself is no originalist—in fact he is a strong critic of Scalia’s approach—and in the face of ambiguity in the text, he would invoke democratic ideals.
Still other people, most prominently Professor Ronald Dworkin, argue for a “moral reading” of the U.S. Constitution.
In Dworkin’s view, we have an obligation to be faithful to the Constitution’s text. If we are not, we are not interpreting it at all. But when it is vague or ambiguous, we should not try to be historians and attempt to figure out what the founding generation thought. Instead we should think, for ourselves, about what makes the constitutional provision as good as it can be—on moral grounds.
But even if you don’t love originalism in general, you might love it for impeachment. That might seem like an opportunistic position, but it has unmistakable logic.
