A review of thirty years of scholarship on why judicial impeachment - even on partisan grounds - is permissible.
In my most recent posts, I set forth the evidence from English legal history and from the records of the Constitutional Convention supporting a broad understanding of the Constitution’s impeachment standard, “high Crimes and Misdemeanors,” as a matter of the original public meaning of the words of the text. Today, I take up the confirming evidence for such a broad understanding in the ratification writings and ratification-convention debates.
The place to begin, as usual, is The Federalist – the single best exposition of the Constitution’s provisions and (usually) a reasonably reliable indicator of the document’s original meaning. Alexander Hamilton, writing as Publius, specifically addressed the power of impeachment in The Federalist 65 and 66. He then returned to the power of impeachment in The Federalist 79 and 81 in discussing the existence of checks against abuse specifically of the judicial power. Both sets of papers are highly instructive concerning the scope, meaning, use, and original understanding of the impeachment power.
This is not merely because they are Hamilton’s thoughts. Framer veneration is not the justification for attending to The Federalist. Nor is it because The Federalist is authoritative “legislative history” defining the meaning of the Constitution’s terms. Rather, it is because Hamilton’s extensive, public discussion of the nature and scope of the impeachment power well displays, from an exceptionally able source, the likely meaning and contemporaneous understanding of the Constitution’s language, as demonstrated by its usage in important discourse at the time. Moreover, Hamilton’s perspective is consistent with the views expressed by essentially every other prominent speaker in the ratification debates. As I will show tomorrow, literally all of that evidence points in the direction of understanding the power of impeachment as conferring a broad range of legislative discretion to punish executive and judicial officers for a wide array of misconduct not limited to criminal-law offences.
Hamilton in The Federalist
One is tempted to say: “just go read them yourself.” Hamilton’s Federalist 65 and Federalist 66 constitute the single most complete and insightful discussion of the constitutional power of impeachment we have, as understood by one of the most lucid and useful sources available from the founding era. As such, it is important evidence of the (presumptive) original textual meaning of the Constitution.
Everything Hamilton has to say about impeachment is consistent with a broad understanding of the impeachment power. Interestingly, Hamilton does not specifically plumb the meaning of the term “high Crimes and Misdemeanors,” as if the term were some mystery to be explained. Rather, he seems to treat the broad scope of the power of impeachment as a given, and presumes the Constitution’s language to be a sufficiently clear expression of that scope. Federalist 65 is Hamilton’s exposition of the meaning of “high Crimes and Misdemeanors,” and he does not even use the term!
In a sense, then, Federalist 65 is as important for what it does not say as for what it does. It does not treat the meaning of the Constitution’s impeachment standard as a matter of dispute or controversy. The entire discussion seems to reflect the existence of a broad tacit consensus as to the meaning of the impeachment standard itself. Its scope is not treated as doubtful or unclear, but instead as having a broad range of application committed to the high-political judgments of the House and the Senate, each playing its respective role in the process. There is no record of any substantial disagreement as to the scope of the impeachment power in the ratification debates. What was controversial – what apparently needed defending, and is therefore the principal theme of The Federalist essays on impeachment – was the decision to vest the final power to apply such a sweeping standard in the Senate. That was what needed justification and argument. Hamilton’s discussion of the impeachment standard itself comes almost casually in the course of defending the propriety of vesting the power to apply that standard in the House and Senate.
Federalist 65 opens with a description of the Senate’s “judicial character” as a “court of impeachments.” Hamilton assumes the importance and necessity of an impeachment power: “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective.” It is important to vest the power to try impeachments in a proper political institution, because the “jurisdiction” of impeachment extends to – here comes Hamilton’s en passant reference to the breadth of the impeachment standard –
those offenses which proceed from the misconduct of public men, or in other words, from 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.
In describing the jurisdiction of impeachment as extending to “political” offenses, Hamilton’s discussion tracks – without feeling the need to mention it by name – the backdrop English precedent understanding of “high Crimes and Misdemeanors,” reflected in longstanding practice and Blackstone’s commentaries.
A National Inquest
Because impeachment is “a NATIONAL INQUEST into the conduct of public men,” Hamilton continues, it was a power proper to vest in “the representatives of the nation themselves.” The “model from which the idea of this institution has institution has been borrowed pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it.” Hamilton noted that several state constitutions followed that same model of dividing the impeachment power between the two houses of the legislature. He then explicitly linked institutional arrangement to constitutional function: the power of impeachment is to serve “as a bridle in the hands of the legislative body upon the executive servants of the government.” Hamilton cinches the point with a rhetorical question, to which he assumes the answer is obvious: “Is not this the true light in which it ought to be regarded?” Hamilton reiterated the point for emphasis in The Federalist No. 66, referring to “the powers relating to impeachments” being, “as before intimated, an essential check in the hands of that [legislative] body upon the encroachments of the executive.”
The nature of impeachment a “bridle in the hands of the legislative body” upon the executive – one pictures a rider holding the reins of a willful, headstrong animal, keeping him under control – and as involving offenses against the public, made it proper to vest the power to try impeachments in the Senate. “Where else,” Hamilton asks, “could have been found a tribunal sufficiently dignified, or sufficiently independent?” He dismisses the alternative of vesting the power in the Supreme Court, on several grounds: its members would be insufficiently numerous, insufficiently prestigious, and might later need to be in a position to judge an appeal from a criminal-law prosecution for the same conduct, because “the punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender.” After being “sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.” Hamilton thought it proper not to let the latter process be overseen by persons who had participated in the former.
This last point – the potential conflict of interest, or at least awkwardness, in the Supreme Court judging a criminal prosecution when it had earlier sat in judgment of impeachment – suggests two further, important conclusions. First, Hamilton treats as a given the possibility that acts constituting ordinary criminal-law wrongdoings can be grounds for impeachment, even if impeachable acts need not be of such character but can include “POLITICAL” wrongs against the society itself. (As I discussed in an earlier post, this conclusion seems clearly right.) Second, and relatedly, Hamilton draws a crisp distinction between the processes and punishment of impeachment and those of the ordinary criminal law.
Political, Not Criminal
Hamilton’s discussion thus refutes two equal and opposite types of errors often committed today: the view that impeachment must involve a criminal-law offense; and the view that impeachment is inappropriate for “mere” criminal-law violations, on the theory that such matters are reserved to the criminal-law process.
Impeachment is different from criminal law proceedings and is governed by different standards and different principles. This leads Hamilton to his most expansive description of the scope of the impeachment power: The “nature of the proceeding” is such that it “can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of person security.” A court of impeachment must possess the “awful discretion” to “doom to honor or to infamy the most confidential and the most distinguished characters of the community.”
It is impossible to read Hamilton in The Federalist without a sense of the sheer breadth of the power of impeachment, its irreducibly high-political nature, and the vast discretion it affords to legislative judgment to punish wrongs of a “political” or constitutional character as well as traditional criminal behavior.
Hamilton continues this theme of impeachment as a vital legislative check in his discussions of judicial impeachment as a check against misuse of judicial power, in The Federalist 79 and especially in Federalist 81. The check of impeachment extends to faithlessness in performance of constitutional duty and actions – including habitual or recurrent judicial decision contrary to law (a point that richly challenges today’s judicial-supremacy-soaked legal and political culture). “The precautions for their responsibility [that is, judges’ responsibility] are comprised in the article respecting impeachments,” Hamilton writes in The Federalist 79. “They are liable to be impeached for malconduct” and removed from office for such misbehavior.
And what might constitute such judicial “malconduct” warranting impeachment? Hamilton offers an extended discussion in The Federalist 81, in answering the objection – made by the prominent New York anti-Federalist writer “Brutus” – of what Hamilton calls “the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated.” Hamilton, perhaps overly optimistically, referred to such supposed danger as being “in reality a phantom” because of the limited nature of judicial power, the “comparative weakness” of the judiciary, and “its total incapacity to support its usurpations by force.” He then continues, discussing the check of impeachment:
And the inference is greatly fortified by the consideration of the important constitutional check which the power or instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations of the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations. While this ought to remove all apprehensions on the subject it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.
The sense of this extended passage is hard to miss. Impeachment is a contemplated, permissible, appropriate remedy, for “a series of deliberate usurpations” of power committed by judges. Persistent abuse of judicial office or judicial power – including misuse of the core case-deciding, adjudicative power of courts – falls within Hamilton’s understanding of the scope of the power to impeach for high crimes and misdemeanors. In my prior academic writing, I have embraced Hamilton’s position, as to the propriety of the use of impeachment as a check on abuse of judicial power.
This is obviously a broad understanding of the impeachment power generally. It supports and reinforces the conclusion that the power of impeachment reaches “political” crimes of broad description, including such wrongs as willful violation of the Constitution, misuse of constitutional powers actually possessed, and encroachment upon the powers of Congress or the rights of the people. Such a broad understanding of the impeachment power obviously has important implications for presidential impeachments.
These were not just Hamilton’s views. In my next post, I take up the strongly supportive evidence of the soundness of The Federalist on impeachment coming from evidence of debates discussing the scope of the impeachment power in the state ratification conventions of Virginia, North Carolina, and South Carolina, and from other early historical evidence confirming a broad understanding of the impeachment power.