More on this book
Community
Kindle Notes & Highlights
I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in
...more
Impeachment is a window onto the whole enterprise of self-government and the American commitment to the fundamental equality of human beings.
“A republic, if you can keep it.”
it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.
But impeachment is something altogether different. It really is designed for We the People, not the judges at 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 impeachment. If that is all you know, would you think that he should be impeached?
Treason, Bribery, or other high Crimes and Misdemeanors.”
prohibiting titles of nobility.
Prince Philip, who asked him, immediately after shaking hands, “Would you like to hear my opinion of lawyers?” Marshall shot back, “Would you like to hear my opinion of princes?” After that was established, the two got along famously.
the power to get rid of the president was indispensable to avoiding a return to the monarchical heritage.
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!
Republicanism takes many forms, and it can be traced all the way back to Rome. But the colonists were particularly influenced by the French theorist Montesquieu, who famously divided governments into three kinds, with associated definitions, over which it is worth lingering: a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice.
In the colonies, republican thinking, focused on the supreme power of the body of the people, led to fresh ideas about what governments can legitimately do. It also fueled novel uses of impeachment. More broadly, it spurred new understandings of how human beings should relate to one another, and in the process it undid established hierarchies of multiple kinds.
the American Revolution was social as well as political, and that it involved an explosive principle: the equal dignity of human beings.
As late as 1760, the colonies consisted of fewer than two million people, subjects of the monarchy, living in economically underdeveloped communities, isolated from the rest of the world. They “still took for granted that society was and ought to be a hierarchy of ranks and degrees of dependency.”6 Over the next twenty years, their whole world was turned upside down,
It was republicanism, with its proud commitment to liberty and equality, that obliterated the premodern world.
As David Hume put it, “to talk of a king as God’s vice-regent on earth, or to give him any of those magnificent titles which formerly dazzled mankind, would but excite laughter in everyone.”
John Adams wrote that “Idolatry to Monarchs, and servility to Aristocratical Pride, was never so totally eradicated, from so many Minds in so short a Time.”
Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others.”
the idea of impeachment, which originated in England but had fallen into disuse there, began to take on a whole new meaning. It became thoroughly Americanized. It turned into an instrument of popular sovereignty, an emphatically republican weapon, a mechanism by which the people might rule.
“Of Equality—as if it harm’d me, giving others the same chances and rights as myself—as if it were not indispensable to my own rights that others possess the same.”
Edmund Randolph contended that a unitary executive would be “the fetus of monarchy.”
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.
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.
Deliberative not majoritarian
In Congress, the sheer number of representatives, combined with bicameralism, would promote deliberation, which would occur among people who were very different from one another. The framers viewed the system of bicameralism as a way of ensuring increased “deliberation and circumspection,” in large part because it enlists diversity both as a safeguard and as a way of enlarging the sheer range of arguments. The bicameral system, along with the concern for deliberation and circumspection, played a key role in debates over impeachment.
Diversity promotes the deliberative process
In 1679, nearly a hundred years before the American founding, it was proclaimed in the House of Commons that impeachment was “the chief institution for the preservation of the government.”3 Edmund Burke described impeachment as the “great guardian of the purity of the Constitution.”
impeachment was, in England, a major step in the direction of republican self-government. Adams, Madison, and Hamilton were aware of that. More specifically, the English idea of impeachment arose largely because its objects were free from the reach of conventional criminal law.
on one account, the precise term “high crimes and misdemeanors” did not appear until 1642, after which it was regularly used.5 Under English law, the House of Commons took the term “misdemeanor” to refer to distinctly public misconduct, including but not limited to actual crimes.
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.
applying appropriated funds to purposes other than those specified
procuring offices for people who were unfit and unworthy of them
before the Revolution, the dominant idea was that impeachment would be limited to serious criminality or the abuse or misuse of the responsibilities of high office.
By the 1770s, colonial Americans came to see impeachment as the mechanism by which the people could begin the process for ousting official wrongdoers, understood as those who betrayed republican principles, above all by abusing their authority through corruption or misuse of power.
Impeachment was used against officials who had engaged in fraud, extortion, bribery, mismanagement of funds, and even bullying of ordinary citizens.
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?
incapacity, negligence or perfidy
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.”
Elbridge Gerry, who had signed the Declaration of Independence, recalled the Revolution itself; he “hoped the maxim will never be adopted here that the chief Magistrate could do no wrong.”
As always, 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.
Madison responded to the concern that a president might seek to secure ratification of a treaty by exploiting the quorum requirement (two-thirds of the senators who are present), thus allowing senators from a small number of states to injure others, whose senators were not in attendance. Madison said, “Were the President to commit any thing so atrocious as to summon only a few states, he would be impeached and convicted, as a majority of states would be affected by his misdemeanor.”5 From the modern standpoint, the particular hypothetical might seem a bit crazy, but it reflects a broader
...more
In Madison’s view, “This is a great security.” If the president uses the pardon power in a corrupt way, by pardoning crimes that he has himself advised (and thus sheltering the wrongdoer), impeachment is the remedy.
Madison specifically says that abusing the pardon power is an impeachable offense.
Edmund Randolph
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.
Randolph cites the emoluments clause.
Honest mistakes are not impeachable.
a violation of liberty or rights is an impeachable offense—even if it is not itself a crime.
During the first Congress, there was widespread fear that a president would abuse his authority by removing executive officers without adequate reason. Madison responded that if he did so, “he will be impeachable by the House before the Senate for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal.”
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.”
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 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.
