Defend the Constitution

The Ratification-Era Understanding of “High Crimes and Misdemeanors”

by Michael Stokes Paulsen

Yesterday, I set forth Alexander Hamilton’s treatment of the scope of the constitutional power of impeachment in The Federalist: the broad range of offenses embraced by that power (including “political” offenses against the system of government, injuries done “immediately to the society itself,” “encroachments” on the powers and prerogatives of other branches, and “usurpations” of authority or of the Constitution); the fact that impeachment proceedings “can never be tied down by such strict rules” in the “delineation of the offense” by the House of Representatives or “in the construction of it” by the Senate; the fact that the power of impeachment implied “awful discretion” in these matters; and the crisp distinction between impeachment proceedings and the operation of the criminal law – even though the misconduct of a civil officer sometimes might render him subject to both.

The Federalist essays touching on the impeachment power – Federalist 65 and 66, concerning the power generally, and Federalist 79 and 81 addressing impeachment as a check on misuse of judicial power specifically – furnish powerful historical evidence in support of a broad understanding of the power of impeachment, and the sweep of the phrase “high Crimes and Misdemeanors.”

But these were not just Hamilton’s views. In this post, I turn to other ratification-era debates, and some early post-ratification statements and commentary, all of which support Hamilton’s core conclusions.[1] Significantly, nobody at the time questioned Hamilton’s assertions concerning the sweeping breadth of the power of impeachment. To the contrary, all prominent statements concerning impeachment in the state debates over ratification of the Constitution appear to be in essential agreement with Hamilton on these points.

This is mildly stunning; the historical evidence rarely lines up in this manner. There may have been some disagreement over whether the impeachment power should be so broad; and some questioned whether it was right to vest so broad a power in the Senate specifically. (That had been a concern Madison expressed at the Constitutional Convention.) But no one ever doubted – all in the ratification debates consistently affirmed – that the impeachment standard itself conferred broad discretion in the house and Senate, reaching a broad variety of potential types of misconduct including “political” misconduct not prohibited by ordinary criminal law. The illustrations employed in the ratification debates of impeachable misconduct all support a broad understanding of the term “high Crimes and Misdemeanors.” So too do important constitutional debates in the First Congress – early post-enactment, roughly contemporaneous evidence of the generally understood linguistic meaning of the impeachment standard.

Ratification Debate Statements Concerning Impeachment

A representative sampling of statements in the state ratification debates well illustrates the point. In the Virginia ratifying convention, Edmund Randolph opined that a president could be impeached if he “misbehaves” and offered the example of receiving improper blandishments – gifts or “emoluments” from foreign powers without the consent of Congress, in violation of the Constitution. Randolph also expressed the view that it would be improper to impeach a president over mere errors of judgment, or simple disagreement over matters of opinion and policy. “No man ever thought of impeaching a man for an opinion. It would be impossible to discover whether the error in opinion resulted from a willful mistake of the heart, or an involuntary fault of the head.”

Also in Virginia, George Mason – an opponent of ratification – engaged in an interesting colloquy with James Madison, a ratification proponent. Mason worried that a president might “pardon crimes which were advised by himself” or grant pardons “to stop inquiry and prevent detection.” James Madison did not deny that such actions might lie within the president’s pardon power, but responded instead that if a president were to do such a thing he might rightfully be impeached: for the president to 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; they can remove him if found guilty. …” (I said much the same thing in a short on-line essay a year ago: that a president can be impeached for what Congress judges to be a misuse or abuse even of a constitutional power the president legitimately possesses, including specifically his absolute power to grant pardons for acts in violation of federal criminal law.)

Shortly after that, Madison replied to a different hypothetical: what if the president were to call senators of only a few states – convene a rump, partisan, or stacked Senate – in order to ram through approval of a treaty not in the interest of the nation? Madison responded that if a president did such a thing, he deservedly “would be impeached and convicted” for commission of such an “atrocious … misdemeanor.”

This is an important and recurring example in the ratification debates. Potential presidential misuse of the treaty-making power – with the assistance of compliant Senate or a small cabal of senators – was evidently a commonly expressed concern in ratification deliberations. John Rutledge made essentially the same point in South Carolina that Madison had made in Virginia: if a president convened only a portion of the senate in order to satisfy the minimum for a two-thirds vote of a quorum, he would be liable to impeachment and removal, asking whether anyone “seriously could suppose that a President, who has a character at stake, would be such a fool and knave as to join with ten others [two-thirds of the minimum quorum at the Constitution’s beginning] to tear up liberty by its roots, when a full Senate” could thereafter convict him in an impeachment proceeding. James Iredell of North Carolina similarly noted that a president could be impeached for the “misdemeanor” of “giving false information to the Senate” in order to secure its assent to a treaty.

Indeed, to return for a moment to Federalist 66, Hamilton discussed a similar issue in the course defending the propriety of the Senate’s serving as the forum for trying impeachments, even when one possible basis for impeachment would be “betraying the interests of the nation in a ruinous treaty” – an action in which the Senate itself would necessary have been complicit. “This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan,” Hamilton complained; “and yet I am deceived if it does not rest upon an erroneous foundation” because the two-thirds majority required for Senate consent to a treaty assured the requisite “fidelity of the national councils in this particular.”

The point relevant to the breadth of the impeachment power is simply this: Hamilton’s analysis, like that of Madison, Rutledge, and Iredell, recognized that misuse of a constitutional power concerning the president’s conduct of foreign affairs – here, “corruption and treachery in the formation of treaties” (in Hamilton’s words) – constitutionally could constitute an impeachable offense. The consistency of the appearance of this point in The Federalist and in explicit discussions in the ratification debates of three states – Virginia, North Carolina, and South Carolina – suggests the presence of a broad consensus of understanding: that a president’s believed misuse of the foreign affairs power or action compromising the interests of the United States in favor of the interest of a foreign power, constitute impeachable offences of a serious nature.

I am open to correction as to what the ratification-debate evidence shows overall with respect to the general founding-era understanding of what might constitute “high Crimes and Misdemeanors.” I do not pretend to have read the debates in their entirety. But of what I have found, that which seems most relevant to the scope of the impeachment power uniformly tends to confirm the view that the power reaches exactly what Hamilton said it reached, and what English practice and authority had earlier held to fall within impeachment’s grasp: “political” offenses and wrongs, as judged by the legislature; violations of the Constitution – actions in excess of constitutional authority or perceived encroachments upon the rightful powers of other branches; abuses of constitutional powers actually possessed; and violations of good faith, or of the liberties of the people.

Debates in the First Congress

Even post-enactment history can, in certain circumstances, serve as competent evidence of constitutional meaning, where it reliably displays (roughly) contemporaneous linguistic usage and understanding of a constitutional term. In the case of impeachment, there is a small bit of such potentially probative evidence. Once again, it points in the same direction as the other historical evidence of meaning.

The most important such evidence comes from debates in the First Congress under the new Constitution, in 1789. Members of that First Congress, including James Madison, discussed the power of impeachment in the course of debating the power of the President to remove the head of an executive department – specifically, the officer who would head up the proposed Department of Foreign Affairs – without the consent of the Senate. The famous “Decision of 1789” was to recognize presidential constitutional power to remove such persons from office without Senate consent. But what if the President abused the removal power, exercised it irresponsibly, removed good officers without justification, or failed to maintain personnel needed for an effective administration? Representative James Madison, defending the constitutional propriety of a unilateral presidential removal power, answered that the President would be subject to impeachment for “the wanton removal of meritorious officers.” Further, the President would be “responsible” for the behavior of subordinate executive officers, and would be “subject … to impeachment himself, if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.” Other representatives – not all, but the prevailing majority –agreed: a President could be impeached for misuse of the removal power to remove well-performing officers and leave the administration unable competently to carry out its responsibilities.

Conversely, Congress’s power to impeach subordinate executive officers did not defeat the argument for a presidential removal power. The one did not exclude the other, and they answered to different needs: impeachment was not proper simply to re-arrange executive administration but was limited to wrongful conduct by executive officers – “mal-conduct” or “misbehav[ior]”, as Representative Boudinot of New Jersey and Representative Ames of Massachusetts explained; presidents, however, might validly remove an executive officer for reasons far short of impeachable wrongdoing.

Of course, one must be careful about drawing conclusions about constitutional meaning from post-enactment constitutional interpretations made by Congress, for reasons I will explain more fully in a subsequent post. But here, the statements about the scope of the power of impeachment in the First Congress were close in time, unconnected with a particular impeachment proceeding or adjudication (so as better to conduce to objectivity and less likely to be motivated by partisanship), and in a sense “abstract” because offered as points of agreed reference in the course of a debate fundamentally about something else – presidential removal power. Even more helpfully, the evidence is consistent with, and not in contradiction of, everything else we know from the historical record.

Early Scholarly Commentary

Finally, James Wilson’s famous Lectures on Law, produced in 1790-92, provide important learned commentary, by an important framer, legal scholar, and one of the first justices appointed to serve on the Supreme Court, almost immediately following adoption of the Constitution. Wilson described impeachment in terms completely consistent with Hamilton’s descriptions in The Federalist, and with Blackstone’s summary of the English tradition. Impeachments, Wilson said, were “proceedings of a political nature … confined to political characters, to political crimes and misdemeanors, and to political punishments” and constituted a process separate and distinct from “the sphere of ordinary [criminal-law] jurisprudence.” This did not preclude impeachment for offenses also punishable by the criminal law. It merely meant that the impeachment power was broader, distinct, and responsive to the political need to remove a misbehaving officer. Impeachments “are founded on different principles; are governed by different maxims and are directed to different objects: for this reason, the trial and punishment of an offence on an impeachment, is no bar to a trial and punishment of the same offence at common law.”

One is tempted to keep going, and quote from Joseph Story’s Commentaries on the Constitution from 1833 – which essentially parrots Hamilton in The Federalist and Wilson in his Lectures. Story is generally sound on impeachment, noting that the power reaches not only criminal-law violations but is of “a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office” and that is “almost impossible to provide systematically for them by positive law” but must be examined “upon very broad and comprehensive principles of public policy and duty.”

But Story’s Commentaries come later – approaching fifty years after the framing of the Constitution; they are not contemporaneous expositions evidencing textual meaning at the time, but learned commentary (and, here, commentary derivative of the views of others) of a different generation – and sometimes idiosyncratic commentary to boot. Story is always smart, always interesting, always informative, and always worthy of consideration; but he is not always a reliable exponent of the original meaning of the document. The Commentaries are commentaries, and of distinctly lesser weight, because not only post-enactment history but distant-in-time, second-generation, derivative commentary.

In my next post, I will consider the relevance (or not) of early practice: How did the earliest Congresses apply the impeachment power, in particular instances? In applying the power, how did early Congresses understand and interpret the Constitution’s impeachment standard of “high Crimes and Misdemeanors? And should this count (and, if so, how seriously) as evidence of the original public meaning of the Constitution’s impeachment standard?

[1] The arguments I reference here can all be found in The Debates in the Several State Conventions on the Adoption of the Federal Constitution, a five-volume by Jonathan Elliot, and accessible in full at the Library of Congress website.