The argument that popular understanding alters constitutional meaning is really just another form of the argument against written constitutionalism.
The red herring of impeachment is forcing the rhetorical argument about the swollen executive to unhelpful extremes. Those in a rhetorical rush to impeachment, especially those who have been threatening it for years, may well be guilty of defining the ultimate constitutional sanction down. The proper response is to argue on prudential grounds against it. It is not—as many are doing—to define impeachment up.
The Wall Street Journal, for example, sensibly opposed “the impeachment delusion” last Thursday, but reached the right conclusion for the wrong reasons:
[T]he Constitution says a President can be impeached for “Treason, Bribery or other high Crimes and Misdemeanors.” Bill Clinton lied under oath and Richard Nixon obstructed justice. While Mr. Obama’s abuses of executive power are serious, they don’t rise to that level.
This is the judicial interpretation of the impeachment power, which holds that crimes means literally that—breaches of criminal law—and that Presidents can therefore more or less get away with anything short of that. It depoliticizes what is manifestly a political device, what George F. Will once called an instrument of “civic hygiene.” It also leads to the odd result that a President can publicly declare his intent to violate his oath so long as he does not jaywalk on the way to his press conference.
This is not how the Framers saw it. In Federalist 65, Hamilton describes as impeachable
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.
Similarly, the House Judiciary Committee, assessing impeachment in the aftermath of Watergate, noted that to Blackstone, “high misdemeanors” was a constitutional term of art that encompassed “maladministration”—again, an obviously political rather than judicial expression. George Mason had attempted at Philadelphia to make maladministration explicitly impeachable; Madison objected on grounds of vagueness; yet, the Judiciary Committee reports, Mason complained in turn that limiting the device to bribery and treason “would ‘not reach many great and dangerous offences’ including ‘[a]ttempts to subvert the Constitution.” “High crimes and misdemeanors” was the resulting compromise, and it was understood to incorporate such attempts.
There is, to be sure, ambiguity and thus room for argument in the phrase. What is clear is that the Framers did not understand the grounds of impeachment to be violation of criminal law alone. Among other problems, such judicial grounds encourage Senators trying impeachment cases to impose the implausible beyond-a-reasonable-doubt standard they see on Law and Order rather than the one that ought to count, which is the health of the polity. More important, Presidents can abuse their powers and “subvert the Constitution” without being foolish enough technically to violate criminal laws. Interpreting the impeachment power so narrowly neuters a vital device for maintaining the separation of powers and icing a swollen executive. The Framers likely would be surprised it has not been invoked more often.
That is not to say all impeachable offenses ought to be prosecuted any more than that all criminal offenses ought to be. Prosecutors exercise discretion; so should members of Congress. Impeachment is a wrenching process through which society should be put for only the worst of constitutional sins, and only when the populace can be brought along. Political calculations are reasonable inputs too. Taken together, those amount to prudence. But prudence should be exercised without defining impeachment into irrelevance.