Such “public wrongs,” William Blackstone, the leading legal scholar of the day, argued in 1792, “are a breach and violation of the public rights and duties, due to the whole community.” They “strike at the very being of society.”60
However less clear to our ears than treason or bribery, the term “high crimes and misdemeanors” offered no puzzle to the Constitution’s authors. Their use of the term was not a cop-out or the result of fatigue. Words mattered to the framers, who appreciated that the ones they employed would be parsed and critiqued not only by future generations, but more immediately by their peers once their convention closed. Whatever they produced in Philadelphia required ratification by the states to take effect, a reality delegates never forgot. Their honor was thus at stake not only in the document’s intent, but in its clarity as well. As Massachusetts’s Rufus King explained to his state’s ratifying convention, “It was the intention and honest desire of the Convention to use those expressions that were most easy to be understood and least equivocal in their meaning.”59
“High crimes and misdemeanors” therefore spoke clearly in their minds, and its acceptance without debate strongly suggests a shared general understanding of the phrase. It certainly was not new. A similar term, “high treasons and offenses and misprisions,” appeared in English law as early as 1386, and evolved over the ensuing centuries along a common thread: “High” offenses were those committed against the sovereign’s state, or against the people in republics where the people held sovereignty on their own. The adjective is the key. A “crime” occurred when one citizen or subject harmed another. “High crimes” were conversely those committed against the crown in a monarchy, or the people in a democracy. The term says nothing about the severity of the crime, or its consequent penalty, merely its type as one that surpassed mere criminal law, being a more fundamental assault against the body politic. Such “public wrongs,” William Blackstone, the leading legal scholar of the day, argued in 1792, “are a breach and violation of the public rights and duties, due to the whole community.” They “strike at the very being of society.”60
Footnotes
59. Gary L. McDowell, The Language of Law and the Foundations of American Constitutionalism (Cambridge: Cambridge University Press, 2010), 225–26.
60. “At the very least,” historian Jack Rakove concluded, “English history would suggest that ‘high crimes and misdemeanors’ were regarded as high and grave indeed—posing deep threats to the survival of the constitution and even the kingdom and the preservation of essential rights and liberties.” Rakove, “Statement on the Background and History of Impeachment,” George Washington Law Review 67 (1999): 684. For “very being,” see Gary L. McDowell, “ ‘High Crimes and Misdemeanors’: Recovering the Intentions of the Founders,” George Washington Law Review 67 (1999): 641.
