Fearful of the potential for unlimited, arbitrary or tyrannical exercise of power by an unprincipled president, the Constitutions authors allowed Congress to remove a president before the completion of his term if a sufficient number of lawmakers concluded that the president had committed Treason, Bribery, or other high Crimes and Misdemeanors.
This was intended to address a dilemma at the core of American national security. The founders were concerned that an insufficiently powerful executive would be unable to vigorously defend the nation. But they also feared that an unchecked executive could undermine national security and civil liberties alike if he decided to place his own interests above those of the nation. The Constitutions framers therefore sought to find a safety feature for cases of extreme abuse of power that, nevertheless, did not unduly impede, paralyze or disable the nations security. Impeachment was their solution.
One of the most significant yet underappreciated lessons of the history of impeachment is that it was intended as a tool to strengthen the nations securityspecifically to chart a middle path between an unlimited and unaccountable presidency and one that was insufficiently powerful to protect the nation.
***
Impeachment originated in England as a method to hold royal officials to account for their public actionsalthough at that time it was restricted to officials and not to the king. Intended to curtail monarchical absolutism and replace it with parliamentary oversight, impeachment subjected royal officials to trial for public offenses. This included certain high treasons and offenses and misprisions, a phrase that appeared as early as 1386, although the precise term high crimes and misdemeanors did not appear until 1642. Moreover, according to the British model, officials convicted of impeachment were subject to a range of punishments including fines, imprisonment and the possibility of execution. The practice traveled across the Atlantic in the 17th century and found use in the American colonies as early as 1635. Because the English framework excluded the king from accountability, Americas founders determined that they needed to modify the English practice so as to prevent both the abuses of royal tyranny and the chaos engendered by weak central government.
To the early Americans who had fought a war against monarchy, the accumulation and arbitrary use of power were dangerous. As the historian Jeffrey Engel has written, the central question of their entire era was what form of government could therefore be entrusted with the power it required, without simultaneously employing that power to undermine liberty? More specifically, in whose hands could such power possibly be trusted? The answer they came up with was a mixed government consisting of executive, legislative and judicial branches, where the executive would exercise power but would also be dependent on, and constrained by, the other branches. Impeachment became one of the necessary toolsperhaps the central toolto constrain the president. In this reading, impeachment became central not only to the U.S. Constitution but to the American idea of libertyand was intended as a safeguard against the despotic accumulation and use of power by a president.
This argument was subsequently expanded by Alexander Hamilton in the Federalist Papers. In several essays discussing the powers of, and constraints on, the president, Hamilton argued in favor of a powerful and energetic executive, positing that it was not the same thing as absolute monarchy because there were multiple restraints on a presidents power, including institutionalized checks and balances between the executive, legislative and judicial branches of government; regular elections; and, as a last line of defense, impeachment. In many ways, the ability to empower while simultaneously constrain was the central dilemma the Constitutions drafters faced. Nowhere could this be seen as clearly as in the debates surrounding the presidency and Congresss powers of impeachment.
The Constitution gave sole powers of impeachmentthe right to lay down a formal accusation or chargeto the House of Representatives and stipulated that, while the chief justice would preside at the trial, it was the Senate that would sit as both judge and jury, trying the accused. Presidents and other civil officials including federal judges could be impeached, and impeachable offenses were enumerated and limited to Treason, Bribery, or other high Crimes and Misdemeanors. While the Constitution remains silent on the legal standards for the process by which a president should be tried, or the standard of proof required for removal from office, it explicitly states that conviction and removal requires a two-thirds vote, and the only punishments available are removal and disqualification from holding office ever again. Other punishments were possible, but only after the charged party had been removed from office.
Examining the debates surrounding these clauses is especially revealing, as it explains not only what ended up in the Constitution but also the logic and intent behind those words as well as the ideas that were rejected.
The first question taken up at the Constitutional Convention was whether impeachment was even necessary. Werent regular elections enough of a check on a presidents behavior? Rufus King of Massachusetts pointed out that elections meant that the president would periodically be tried for his behaviour by his electors. Moreover, wouldnt placing the presidents fate in the hands of the legislature place the president in a subservient position to the legislative branch?
Both of these opinions were decisively rejected. Fears that impeachment would render a president impotent or subservient to Congress were mitigated by setting a high standard for what constituted an impeachable offense and by making conviction require a two-thirds vote in the Senate. Such a combination meant that impeachment would be exceedingly rare.
The framers also found elections a necessary but ultimately insufficient safeguard for preventing the country from succumbing to an authoritarian leader. What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Benjamin Franklin asked before answering his own question: Why recourse was had to assassination. That was an outcome they clearly wanted to avoid. So, too, according to Edmund Randolph, were tumults & insurrections. Instead, they settled on making the president accountable and giving the legislative branch the legal mechanism to remove him from office. These debates reveal fears that republican government was vulnerable to a president with authoritarian instincts. They also underscore concerns that, without a mechanism for the safe and lawful removal of the president, the nations stability was likely to suffer.
No point is of more importance that the right of impeachment, George Mason argued, asking his fellow delegates, Shall any man be above Justice? James Madison agreed 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. That was especially true as the president might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.
Here was the rationale for providing an extra check on presidential wrongdoing and an enumeration of what types of actionsincapacity, negligence, treason, corruption or oppressionshould lead to impeachment. But this list was deemed too ambiguous, especially when the ill-defined maladministration was added to the mix. This had to be narrowed, and Gouverneur Morris argued that any charges of impeachment ought to be enumerated and defined.
The framers settled on Treason, Bribery, or other high Crimes and Misdemeanors. The first two were clear enough from a definitional perspective, but the Constitutions framers found them not sufficiently broad to serve as a sufficient safeguard. For them, criminality was neither necessary nor sufficient, even if it made the case clearer and more comfortable. The Constitutional debates reveal that the addition of high Crimes and Misdemeanors was key as it signified the framers belief that an impeachable offense need not be a crime at all. Borrowing this phrase from previous British legal practice, the Constitutions authors reasoned that there were many great and dangerous offenses that would not necessarily meet the precise definitions of either treason or bribery but that nevertheless would constitute an egregious abuse of power, an imperiling of national security or a betrayal of national trust.
Even if precise definitions remain elusive for high Crimes and Misdemeanors, British legal history, the deliberations at the Constitutional Convention and the subsequent ratification debates imply that such offenses were understood by the Constitutions writers as profound political crimes committed against the state with grievous implications for the proper functioning of the countrys democratic processes. Presidents ought to be removable, not for general and vague reasons, but rather for specific abuses of the public trust. While the process would likely prove highly destabilizing and leave lasting scars on the country, it was also deemed necessary.
***
History suggests several conclusions about the intended use of impeachment, the parameters that have been drawn around its employment and the elasticity it was intentionally given.
First, the Constitution was designed as a delicate, deliberate balancing act. It was meant to balance the powers of the various branches of government, federal and state authorities, and, at a more abstract level, the occasionally conflicting demands of liberty and order. Striking the right balance was the challenge that the Constitutions framers faced, and nowhere was it more acute than in the office of the presidency. Rendering the executive too powerful would give it the capabilities to suppress individual liberties and subvert democratic government. But leaving it too weak, or too dependent on Congress, would rob it of the necessary vigor to enforce the laws, keep good order and stave off chaos. Perhaps the central question of the Constitutional Convention was how to strike the right balance between too enfeebled and too powerful a president.
The men who gathered in Philadelphia in the summer of 1787 did so with the intention of restoring that balance. Americans had rejected monarchy in their war for independence but experienced disunity and disorder in the period after independence. Their lived experience had convinced many of the countrys leading political figures that the federal government required strengthening. In practice, this would mean endowing the executive branch with enhanced capabilities and broadened powers.
That, however, was not the same thing as a blank check. Hamilton, generally regarded as one of the most forceful advocates for a vigorous government, argued for empowering the executive branch. But he consistently tempered those calls with analysis of why the American presidency differed from the British monarchy. The main points of differentiation were oversight and punishment.
Second, the American Revolution had been justified as a fight against unlimited, arbitrary and unaccountable abuse of power by a remote king. Without sufficient safeguards, any exercise of power was likely to lead to a similar end. The first man put at the helm will be a good one, Franklin commented at the Constitutional Convention. That was not the issue, because all present in Philadelphia suspected, rightly, that George Washington would become the first president. The question was what would happen in the future as, Franklin observed, No body knows what sort may come afterwards. In the worst case, the Constitutions authors fretted that men of factious tempers, of local prejudices, or of sinister design, may, by intrigue, by corruption, or by other means obtain high office and betray the public trust.
To safeguard against an excessively ambitious individual putting his personal or political interests above those of the nation, they deliberately sought institutional mechanisms to constrain an individual with authoritarian, treasonous or corrupt impulses. Divided government where the various branches competed with, and intruded into each others spheres, was the first line of defense against such a power grab. Regular elections were another. But the Constitutional Convention debates reveal that neither of these was deemed sufficiently robust in the case of an individual bent on subverting democratic processes or undermining the nations security. Impeachment was the constitutionally prescribed response for how best to protect the nation when neither checks and balances nor regular elections proved sufficient.
A look at the constitutional debates also reveals that impeachment was not intended as a punishment but, rather, as a vital protection intended to remove a president whose continuance in office would likely result in further damage to the country. Whereas the British had allowed for the punishment of officials, the American practice did not make any stipulations beyond removal from officeand leaving open the potential for future prosecution. Impeachment was intended as a rare but necessary safeguard to the security and proper functioning of the nations democratic processes. Its intent was defensive, which required expeditious removal of the president from office, lest he repeat actions deemed gravely harmful to the proper functioning of the state. Charles Black, the constitutional law scholar and author of the authoritative 1974 essay on impeachment, observed that we could punish a traitorous or corrupt president after his term expired; we remove him principally because we fear he will do it again, or because a traitor or taker of a bribe is not thinkable as a national leader. In the absence of a constitutionally prescribed remedy, efforts to remove such individuals from power were likely to be highly violentas Americas recent history of revolution against England underscored.
Moreover, just because the Constitution prescribed a legal mechanism from removing a president from office did not mean that impeachment would be stabilizing. As Hamilton foresaw more than two centuries ago, impeachment will agitate the passions of the whole community and connect to pre-existing factions, and the outcome will be determined less by real demonstrations of innocence or guilt and more by the competitive strength of the parties. It is precisely because of the contested nature and depth of the alleged harm done that impeachment has always been a ferociously partisan and highly divisive affair.
Yet, despite knowing that impeachment would likely prove destabilizing, the Constitutions framers nonetheless incorporated impeachment into the U.S. Constitution as a necessary defense of the nations institutions and values against an unprincipled and unrestrained individual. Impeachment was intended not just as a remedy of last resort but also one that should be considered only in rare cases where presidential actions were deemed harmful to American society. James Iredell, later a Supreme Court justice, argued at the North Carolina ratification debates that the occasion for its exercise will arise from acts of great injury to the whole community. This was very much in keeping with the definition of high Crimes, as understood by the founding generation. William Blackstone, the leading British legal scholar of the late 18th century, wrote in 1792 that such wrongs were a breach and violation of the public rights and duties and strike at the very being of society. Such offenses were understood by the Constitutions writers as assaults on civil order and governance itself.
Because impeachment levels such a grave charge, it was intended to be both political and public. This was intentional. Neither the Constitution, nor the proper functioning of the countrys democratic process, nor the nations sovereignty could survive sustained assaults in the absence of vocal and vigorous defenders.
Ultimately, the Constitution left it to the judgment of the House and the Senate to determine when, in the words of Hamilton, the abuse or violation of some public trust amounted to injuries done immediately to the society itself and required removing the president from office, lest his continued occupation of the presidency do further damage.
Excerpt from:
Impeachment as National Security: The Framers' Intentions - Lawfare
- Government Oppression Of Climate Protesters Is Rampant. Are You Next? - CleanTechnica - February 5th, 2024 [February 5th, 2024]
- Invasion Day protests oppose oppression of indigenous Australians, genocide in Gaza - WSWS - February 5th, 2024 [February 5th, 2024]
- Florida's 'hostile' laws? Five laws NAACP listed in travel advisory. - St. Augustine Record - May 22nd, 2023 [May 22nd, 2023]
- Iran Faces A Huge Budget Deficit It Tries To Conceal - - May 22nd, 2023 [May 22nd, 2023]
- Satyendar Jain taken to Safdarjung Hospital after losing 35 kgs - The Statesman - May 22nd, 2023 [May 22nd, 2023]
- Opinion: Reassessing the approach to Israel | DW | 22.05.2023 - DW - May 22nd, 2023 [May 22nd, 2023]
- Durham Report Is Latest Choose-Your-Own-Reality Adventure - TIME - May 22nd, 2023 [May 22nd, 2023]
- In Conversation with Stan Grant - Honi Soit - May 22nd, 2023 [May 22nd, 2023]
- Rep. Bare: Assembly Republicans' local government funding plan is ... - WisPolitics.com - May 22nd, 2023 [May 22nd, 2023]
- Never Again Is Right Now in Palestine - Jacobin magazine - May 22nd, 2023 [May 22nd, 2023]
- UF community condemns bill defunding DEI initiatives - The Independent Florida Alligator - May 22nd, 2023 [May 22nd, 2023]
- Prices of basic commodities and foods have gone insane in Sierra ... - Sierra Leone Telegraph - May 22nd, 2023 [May 22nd, 2023]
- Don't cancel Gladstone. He was a true friend of freedom at home ... - The Telegraph - May 22nd, 2023 [May 22nd, 2023]
- If you want to do things like gender ideology, go to Berkeley: DeSantis bans diversity, equity and inclusion in Florida colleges - The Mercury News - May 22nd, 2023 [May 22nd, 2023]
- TikTok: The new frontier for political info-wars - DAWN.com - May 22nd, 2023 [May 22nd, 2023]
- Israeli Apartheid - The Legacy of the Ongoing Nakba at 75 [EN/AR ... - ReliefWeb - May 22nd, 2023 [May 22nd, 2023]
- PPP's CEC condemns attacks on army installations, calls for ... - Pakistan Today - May 22nd, 2023 [May 22nd, 2023]
- Tim Scott says Im running for president of the United States in announcement speech live - The Guardian US - May 22nd, 2023 [May 22nd, 2023]
- Opinion | America's Poverty Is Built by Design - POLITICO - May 22nd, 2023 [May 22nd, 2023]
- 'Pity these oppressed random attackers': Inside the thoughts of Canada's bail system - National Post - May 22nd, 2023 [May 22nd, 2023]
- How Can We Resist Book Bans? This Banned Author Has Ideas. - Truthout - May 22nd, 2023 [May 22nd, 2023]
- Owners of Nigeria and their multiple worlds - Guardian Nigeria - May 22nd, 2023 [May 22nd, 2023]
- When People Decide They Want Change, They Will Bring in Change - The Wire - May 22nd, 2023 [May 22nd, 2023]
- 5 Interesting Facts about Simon Bolivar - The Collector - May 22nd, 2023 [May 22nd, 2023]
- China Built Over A Million Uyghurs "Re-Education Camps" In 6 Years: Report - NDTV - May 22nd, 2023 [May 22nd, 2023]
- Queer folk, the hour to save ourselves has come - Daily Maverick - May 22nd, 2023 [May 22nd, 2023]
- Preposterous! Book ban adds bureaucracy and removes parents ... - IndyStar - May 22nd, 2023 [May 22nd, 2023]
- End Jew Hatred: Fight for social justice must be above political fray - The Jerusalem Post - May 18th, 2023 [May 18th, 2023]
- Political strife, not protest anymore - The Korea JoongAng Daily - May 18th, 2023 [May 18th, 2023]
- 'A Man Without a Gun Is Not a Citizen' - The Texas Observer - May 18th, 2023 [May 18th, 2023]
- State Department Report Says China Oppressed Tibetan Buddhist ... - Central Tibetan Administration - May 18th, 2023 [May 18th, 2023]
- Facing Reality on South Africa - Council on Foreign Relations - May 18th, 2023 [May 18th, 2023]
- Federal Charges of Political Activists Show the Racist and ... - Left Voice - May 18th, 2023 [May 18th, 2023]
- Age of Disorder || Pakistan on the Brink: Down with Capitalist PDM ... - International Socialist - May 18th, 2023 [May 18th, 2023]
- Tim Stevenson | Living with the Long Emergency: Rising Fascism ... - Brattleboro Reformer - May 18th, 2023 [May 18th, 2023]
- Members of new City Council weigh in on water bills - CBS Chicago - May 18th, 2023 [May 18th, 2023]
- DIIR Statement on 28th Anniversary of Enforced Disappearance of ... - Central Tibetan Administration - May 18th, 2023 [May 18th, 2023]
- KAN-WIN shares timeline of gender-based violence toward Asian ... - Daily Northwestern - May 18th, 2023 [May 18th, 2023]
- Alleged leaker fixated on guns and envisioned 'race war' - The Washington Post - May 18th, 2023 [May 18th, 2023]
- Employment and Labour pays tribute to Dr Dennis George - South African Government - May 18th, 2023 [May 18th, 2023]
- Opinion | Trump Cannot Be Unseen - The New York Times - May 18th, 2023 [May 18th, 2023]
- Toronto to rally against Homophobia, Biphobia, and Transphobia ... - NOW Toronto - May 18th, 2023 [May 18th, 2023]
- Election 2023: Te Pti Mori accuses Prime Minister Chris Hipkins of 'oppression' for telling parties to 'be careful' with demands - Newshub - May 18th, 2023 [May 18th, 2023]
- What's the current state of LGBTQ rights in Europe? - Euronews - May 18th, 2023 [May 18th, 2023]
- Baptist Health Foundation Receives $3 Million Gift from the Jos ... - South Florida Hospital News - May 18th, 2023 [May 18th, 2023]
- The Politics and Moral Economics of Seun Kutis Police Assault - Tekedia - May 18th, 2023 [May 18th, 2023]
- Is a temporary coalition of anger against the old regime a basis for ... - Sierra Leone Telegraph - May 18th, 2023 [May 18th, 2023]
- Mexico: against 'neoliberalism' or capitalism? The final year of ... - In Defence of Marxism - May 18th, 2023 [May 18th, 2023]
- White Christian Nationalism and the 2023 Montana Legislature ... - Daily Montanan - May 18th, 2023 [May 18th, 2023]
- Left-wing lawmakers press for federal reparations for Black Americans: 'We're here to demand it' - Fox News - May 18th, 2023 [May 18th, 2023]
- Underground cyphers are helping young Kashmiris reclaim their ... - Huck Magazine - May 18th, 2023 [May 18th, 2023]
- Tory MP uses controversial term connected to antisemitic conspiracies - The Jerusalem Post - May 18th, 2023 [May 18th, 2023]
- Fijis 1987 coup: Why did Prime Minister Rabuka apologise to the Indo-Fijian community? - The Indian Express - May 18th, 2023 [May 18th, 2023]
- Declaration on the Migrant Crisis: Socialists From the U.S., Mexico ... - Left Voice - May 18th, 2023 [May 18th, 2023]
- WNBA star Brittney Griner standing and listening to national anthem - Gainesville Sun - May 18th, 2023 [May 18th, 2023]
- Imran Khan to unveil next plan of action at a rally on Thursday - ANI News - May 18th, 2023 [May 18th, 2023]
- Delta Youths Threaten Showdown Over Exclusion In Multi-Billion ... - SaharaReporters.com - May 18th, 2023 [May 18th, 2023]
- Remarks by Homeland Security Advisor Dr. Liz Sherwood-Randall ... - The White House - May 2nd, 2023 [May 2nd, 2023]
- Are some human rights more important than others? Religious ... - Jacksonville Journal-Courier - May 2nd, 2023 [May 2nd, 2023]
- Postcolonial Plague: The Legacy of Apartheid South Africa in ... - Brown Political Review - May 2nd, 2023 [May 2nd, 2023]
- UN expert urges Japan to step up pressure on Myanmar junta - OHCHR - May 2nd, 2023 [May 2nd, 2023]
- CSIS confirms to MP that he and family were targeted by China - The Globe and Mail - May 2nd, 2023 [May 2nd, 2023]
- Opposition leader says govt sent a bureaucrat to talk with calan - Duvar English - May 2nd, 2023 [May 2nd, 2023]
- The Badger Herald Editorial Board: The bounds of free speech The ... - The Badger Herald - May 2nd, 2023 [May 2nd, 2023]
- AIbom NLC to Set up Monitoring Team on Petroleum Products - THISDAY Newspapers - May 2nd, 2023 [May 2nd, 2023]
- Amplifying Iranian Voices: The Call for Freedom and Democracy ... - National Council of Resistance of Iran (NCRI) - May 2nd, 2023 [May 2nd, 2023]
- As inequality deepens, who will rewrite the rules? - Al Jazeera English - May 2nd, 2023 [May 2nd, 2023]
- Discover the Brilliance of George Orwell: Books That Will Inspire You - Economic Times - May 2nd, 2023 [May 2nd, 2023]
- Nature has way of settling scores, says UP CM Yogi Adityanath on Atiq Ahmad's turf - Times of India - May 2nd, 2023 [May 2nd, 2023]
- Tens of thousands hold Labor Day rallies nationwide - The Korea Herald - May 2nd, 2023 [May 2nd, 2023]
- Incoming Nigerian Government Must Improve Poverty Wage ... - SaharaReporters.com - May 2nd, 2023 [May 2nd, 2023]
- Can the European Union Tackle Afghanistan's Crises? - The Diplomat - May 2nd, 2023 [May 2nd, 2023]
- Iran sees nationwide protests, night rallies marking Int'l Labor Day | - The Peoples Mojahedin Organization of Iran (PMOI) - May 2nd, 2023 [May 2nd, 2023]
- G20: Responsibilities of the people of PoK - ANI News - May 2nd, 2023 [May 2nd, 2023]
- From IWD to May Day: Connecting working women's struggles - Spring Magazine - May 2nd, 2023 [May 2nd, 2023]
- 1 May 2023 || The Working Class is Back! ISA - International Socialist - May 2nd, 2023 [May 2nd, 2023]
- Are the Marxists on to something? Catholic World Report - Catholic World Report - May 2nd, 2023 [May 2nd, 2023]
- Manoj Kumar Jha and Ghazala Jamil write: Why Pratap Bhanu Mehta is wrong about social justice politics and caste census - The Indian Express - May 2nd, 2023 [May 2nd, 2023]
- Generational crimes are being committed thick and fast. No wonder Australian kids dont vote conservative - The Guardian - May 2nd, 2023 [May 2nd, 2023]
- A Proclamation on Jewish American Heritage Month, 2023 - U.S. ... - US Embassy and Consulate in Poland - May 2nd, 2023 [May 2nd, 2023]