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The Original Meaning of “High Crimes and Misdemeanors,” Part I

I am in the midst of a series on the constitutional power of impeachment. A quick review: My first post set forth my core thesis – that the power of impeachment is extraordinarily broad and confers upon the two houses of Congress a substantial range of discretion to judge what types of misconduct by executive and judicial officers are sufficiently wrongful to warrant the official’s removal from office. My second post explained and defended my constitutional interpretive premises – that the proper approach to discerning the meaning of the Constitution’s provisions is to seek the objective, original meaning of the text, in its social and linguistic context. I will refer back to that post at several points in this one, in which I turn to the historical evidence of the original meaning and scope of the impeachment power.

My third installment took a brief historical anniversary detour to consider the hypothetical propriety of impeaching Vice President Aaron Burr. My fourth and fifth installments rapidly canvassed my prior writings concerning impeachment as a test of my own consistency. (I hope I passed.)

As promised, I now return to the heart of the analysis: What is the proper scope of the constitutional power of impeachment? To what types of misconduct by executive (and judicial) officers does the terms extend? What is the original meaning, and sweep, of the term “high Crimes and Misdemeanors”?

The search is for the objective, original meaning of the words of the Constitution: what would a reasonably well informed speaker or reader of the English language, in America, at or about the time of the Constitution’s drafting, have understood the words and phrases of the Constitution to mean, in this social, political, and linguistic context? In a sense, this is an “informed reasonable person” standard, derived from textual and historical evidence – a hypothetical construct.

It is not a search for the subjective intentions of any particular person, group, or body. Evidence of such specific intentions, understanding, or expectations of course can constitute useful, potentially probative evidence of probable textual meaning, in several respects: it usefully displays how the Constitution’s language was actually used by the people who were using it, in social and political context; it can reveal specialized usages and understandings; and it is a guard against linguistic anachronism – the errant tendency of many readers today to read the words of the 1789 Constitution in modern senses, which might vary significantly from the meanings such words or phrases had at the time. All of these features are present with respect to historical evidence of the meaning of “high Crimes and Misdemeanors.” But keep in mind that the goal is to ascertain the objective meaning of the words and terms used, not the specific “intentions” of the framers. The two often work in harmony, but not invariably so.

Terms of Art Flowing from Practice

Here’s the key point in summary: the evidence of original meaning overwhelmingly supports the conclusion that, at the time of the framing of the U.S. Constitution, the composite term “high Crimes and Misdemeanors” was a well-established, familiar legal term of art that the framers consciously borrowed from longstanding English practice and usage dating back four centuries. That meaning was not so much “vague” as simply broad: a sweeping delegation of power and responsibility to the legislative bodies entrusted with the impeachment power. The term “high Crimes and Misdemeanors” had a broad meaning in English practice and in the American understanding, confiding to the two houses of the national legislature (under the U.S. Constitution, the House and the Senate, exercising their respective roles in the impeachment process) a sweeping range of power to punish what those political bodies determined to be misconduct or abuse of power by executive and judicial officers of a wide variety of types.

The meaning of “high Crimes and Misdemeanors” was, so to speak, its own distinct thing. It was not a combination of “crimes” and “misdemeanors” as understood in today’s criminal-law sense. It was instead a unique legal term with its own meaning. The framers of the Constitution understood and used the phrase in that specialized sense, consciously adopting a known English-practice term of art in preference to other proposed formulations of the impeachment standard. And the ratification debates uniformly reflect that same broad understanding.

My brisk tour of the evidence of the original meaning therefore begins with the backdrop English understanding of “high Crimes and Misdemeanors.” Tomorrow, I will proceed through those debates of the Constitutional Convention – fascinating deliberative history that reveals an intention to enact a broad standard for impeachment reaching serious wrongs of a “political” nature (as well as more pedestrian criminality) and then choosing the familiar English term “high Crimes and Misdemeanors” as the language best capturing that understanding.

The English Historical Backdrop Understanding

By the time the Constitutional Convention assembled in Philadelphia in 1787, the term “high Crimes and Misdemeanors” had been employed in the English practice of impeachment for more than four centuries. Historians, researchers, and constitutional scholars have plumbed the depths of English practice, discussing and debating the specifics of charges in impeachments dating back as early as 1386. For purposes of understanding the meaning of the U.S. Constitution, however, those details are perhaps less important than the broad observation that impeachment specifically for “high Crimes and Misdemeanors” – and frequently employing that very phrase – was a familiar political practice under the English constitution with a broad range of meaning marked by 400 years of experience and practice. [1]

Over the years, the English Parliament had developed and deployed the power of impeachment in its historic struggles to check the powers of the King and his ministers. The House of Commons had impeached and brought before the House of Lords for trial officers of the crown, including ministers and judges, that they believed had violated the constitution or laws; subverted the rights of Parliament or the system of government; abused or misused power; failed to perform the duties of office faithfully and competently; engaged in self-dealing behavior or misuse of funds; or were guilty of oppression, corruption, or other misbehavior or “mal-administration.”

Reflect on those categories for a moment. They describe a broad array of misconduct, not at all limited to criminality, as we today understand it. Not all persons impeached for the described offenses were convicted, of course. But the range of usage and practice – what was considered to lie within the scope of the power of impeachment for “high Crimes and Misdemeanors” – was unquestionably broad. That range plainly embraced “political” offenses: offenses against the constitution, laws, system of government, prerogatives of other institutions, or the rights and liberties of the people – as well as common law offences that might be punishable by ordinary criminal law.

Though it employed terms that “sound” in criminal law concepts, impeachment was a distinct branch of law under the English constitution. Raoul Berger, in his instructive 1973 book on the historical meaning of impeachment, noted above, showed that “high Crimes and Misdemeanors” was a term the historical usage of which was confined to the jurisdiction of parliamentary impeachments. . Its roots were distinct from the ordinary criminal law, which adopted the terminology “misdemeanor” later. Berger observed that, at the time the term “high crimes and misdemeanors” first appeared in an impeachment proceeding, there was “no such [criminal-law] crime as a ‘misdemeanor.’” [2]

Sir William Blackstone, in his famous 1765 treatise, Commentaries on the Laws of England – the most widely possessed and read law book in America at the time of the framing of the Constitution and a respected resource of many of the Constitution’s framers – discussed ordinary criminal law and impeachment proceedings separately, in different sections of the fourth book of his epic treatise. While the province of impeachment and the province of the criminal law both involved punishment for “Public Wrongs” – and both employed the words “crimes” and “misdemeanors” – impeachment involved public wrongs of a distinctly different sort. Book IV divides the treatment of different types of public wrongs into numerous subheadings. The terms “crimes” and “misdemeanors” are set forth as general descriptors for public wrongs in Chapter 1. But successive chapters then deal separately with different specific types of offenses.

Significantly, wrongs punishable by impeachment are discussed distinctly in Chapter 9, entitled “Of Misprisions and Contempts, affecting the King and Government.” There, Blackstone employed the term “high misdemeanors” in a specialized sense. The “first and principal” illustration of “high misdemeanors,” Blackstone wrote, is “the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment.”

Keep Blackstone’s identification of “high misdemeanors” with “mal-administration” of high officers in mind. It comes back around in the Constitutional Convention’s discussion of the language that ultimately became the Constitution’s impeachment standard.

Chapter 10, entitled “Of Offences against Public Justice” describes another set of offenses punishable by impeachment: the “negligence of public officers, entrusted with the administration of justice.” Blackstone condemns, in strong terms, a particular “offence against public justice, which is a crime of deep malignity,” and especially so because “there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution.” That offence is “the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office.” All such offences against public justice could be prosecuted “either by impeachment in parliament” or, depending upon the rank of the offender, “by information in the court of king’s bench.” Such misconduct was “sure to be severely punished” with penalties including forfeiture of office.

Again, in Chapter 19, Blackstone distinguished among “Courts of a Criminal Jurisdiction” and referred to the jurisdiction of parliamentary impeachment as concerned with “high misdemeanors” committed by high officials or peers:

For, though in general the union of the legislative and judicial powers ought to be most carefully avoided, yet it may happen that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of such crimes, as the ordinary magistrate either dares not or cannot punish.

The upshot is clear: As a matter of English practice and authoritative commentary by the mid eighteenth century, impeachment embraced offenses involving official misconduct not necessarily punishable by the ordinary criminal law. [3]

International Influences

One more important piece of data completes the picture of the English backdrop understanding of “high crimes and misdemeanors.” At the same time as the framing of the U.S. Constitution, a prominent impeachment proceeding was taking place in Great Britain – the impeachment of Warren Hastings, Governor-General of India for “high crimes and misdemeanors” in the form of maladministration, corruption, and cruel administration toward the people of India. The proceedings against Hastings had been instituted just a few weeks before the beginning of the Constitutional Convention in Philadelphia in 1787. They were in the full view of the framers – a hot “current events” constitutional topic, as it were – and, as we shall see, were specifically referenced in the delegates’ deliberations at Philadelphia. Once again, the offences charged involved political and administrative misconduct, not merely crimes in the common law sense.

All of this formed a part of the backdrop understanding of the term “high crimes and misdemeanors” at the time the framers adopted it as the U.S. Constitution’s standard governing impeachment. Tomorrow, I pick up with the story of the Constitutional Convention’s decision to embrace this traditional English-precedent standard.

[1] For excellent distillations of the English history, see the respected 1974 House Judiciary Committee Report on “Constitutional Grounds for Presidential Impeachment” and, more discursively, Raoul Berger’s 1973 book Impeachment: The Constitutional Problems.

[2] An important caveat: While I find Berger to be an outstanding resource – a first-rate historical detective – Berger’s legal analysis of historical evidence sometimes leaves a lot to be desired. It is frequently highly idiosyncratic and sometimes quite unsound. Berger makes a great research assistant but a mediocre and unreliable constitutional lawyer.

[3] An aside: In his embarrassing recent “book” entitled The Case Against Impeaching Trump – which is mostly a collection of op-eds and transcripts of television interviews – Alan Dershowitz quotes, out of context, Blackstone’s general definitions of crimes and misdemeanors if this supported the proposition that, to be an impeachable, offense, an official’s act must be a “crime” in the ordinary criminal law sense. This is an elementary and almost ridiculous mistake. Blackstone’s treatment of impeachable “high crimes” and “high misdemeanors” is explicitly to the contrary. Dershowitz’s seemingly un-researched stance – that to fit within the category of “high Crimes and Misdemeanors,” conduct must be a literal criminal-law “crime” – is simply historically indefensible and intellectually irresponsible.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on August 08, 2018 at 17:17:40 pm

Prof. Paulsen:

Well done and well said. You appear to be on rather solid historical / constitutional ground.

What ever is Dershowitz thinking - is is he not?

And how was it that Hastings was not convicted? Hmmm!
What weight do you place on the acquittal of Hastings and how it reflects or does not reflect the understanding of impeachable offenses that you are sharing with us.

BTW: Apparently, the Legislature of West Virginia has been reading your essays. It seems they are in the process of impeacvhing the ENTIRE STATE SUPREME COURT.
Bully for them!!!!

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Guttenburgs Press and Brewery
on August 08, 2018 at 17:18:23 pm

testing to see if I am still banned! _Ha!

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gabe
on August 08, 2018 at 17:19:48 pm

Yippee!
Now I can ramble on as usual.

I second the accolades for Prof. Paulsen's fine series of essays and look forward to the next ones!

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gabe
on August 08, 2018 at 19:31:09 pm

In a word: bad behavior. The 1789 Constitution is a poorly written document. The so called Bill of Rights are even worse. All the amendments can be easily refuted by using the original text within its context. Declaration of Independence complains of tyranny; shows what WE must not become. Article of Confederation laid a foundation for the United States of America but there was no consensus in agreement. Northwest Ordinance shows that WE had yet to rid OURSELVES of Britannic polity and why WE need to ordain the original constitution supreme; rightly dividing it to ring true ti its intents to improve the union and establish justice, and its purposes: ensure domestic tranquility, provide for the common defense, promote the general welfare and secure THESE blessing of liberty.

Anything to the contrary is bad behavior. Violating the Constitution is a very high crime; it's a misdemeanor that needs to be addressed in order to make common knowledge who WE are.

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jon meadow
on August 08, 2018 at 21:47:46 pm

Burke began to turn the political tide and gain the upper hand when he shifted from a stand of diffidence to a straightforward attack on the East India Company and Warren Hastings in February 1785 with what is one of Burke's greatest Parliamentary addresses, his "On the Nabob of Arcots Debts" speech. By the spring of 1787 Burke had prepared his case for impeachment, and in May 1787 Hastings was arrested and brought before the House of Lords to hear the charges which Parliament through Burke's work levelled against him.

That the actual impeachment trial did not begin until February 1788, five months after the American Constitutional Convention had ended, does not undermine the influence on the Founders of the years of Burke's investigations, speeches and impeachment charges against Warren Hastings all of which preceded the Convention in the summer of 1787.

Those matters are the historical events that are most contemporaneous with and pertinent to the impeachment deliberations of the Founders, and, thus, they constitute a very important factor in evaluating the Founders' meaning as to what constitutes an impeachable offense. Uppermost among the matters and motivation of Burke's years' long investigation and speeches against the Company and Hastings and the ultimate concepts embodied in Burke's accusations of impeachment against Hastings are natural law concepts of injustice and concepts of public morality, including maladministration of the public's affairs, abuse of the public's trust, subversion of the system of government, oppression of the ruled by their rulers and unjust self-enrichment, none of which was of necessity a crime under common law.

.”

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Pukka Luftmensch
on August 08, 2018 at 22:16:44 pm

And (I neglected to add) Burke's work and words on the law of impeachment were not only known to the Founders but Burke the political theorist and politician was known to the Founders and fondly appreciated as the most important MP in opposition both to Parliament's punitive taxation of the American colonies and to the Crown's prolongation of the war of rebellion.

Burke carried a lot of weight with the Founders.

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Pukka Luftmensch
on August 09, 2018 at 10:05:15 am

It seems that the West Virginia Legislature has been following Paulsen's series of essays as they are now beginning the process of IMPEACHING their ENTIRE Supreme Court!

Now that, my good Professor is INFLUENCE.

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Guttenburgs Press and Brewery
on August 09, 2018 at 11:06:56 am

HaHa!

Grew up in West by God Virginia (three Governors jailed in my lifetime, one with a picture of me taken in his office,) educated in "Da Mayor's" "Chicaga" (enough convicted city councilman to fill a small prison and four Governors imprisoned, one of whom I introduced to speak at my law school) and lived in Washington DC during Watergate and Marion Barry (the only imprisoned mayor in history to get oral sex on visitor's day in the public reception area) and in Maryland (home of "Balmor politics" with one Governor jailed and one former Governor, Vice President Agnew, who copped a fedreal plea) the rest of my life.

For me political conviction or impeachment is the old, not the new normal.

I have seen the swamp and always rather enjoyed living there.

The more things change...

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Image of Pukka Luftmensch
Pukka Luftmensch
on August 10, 2018 at 21:16:58 pm

I am curious as to why the author, using conclusory language, has demeaned Raoul Berger's scholarship.

Berger's work on the Fourteenth Amendment and incorporation, "Government By Judiciary, was ground-breaking and the first serious work of Originalist scholarship. What's wrong with it?

His work on impeachment concludes that while the constitution does not require an indictable crime for impeachment and while "high crimes and misdemeanors" is more than petty misconduct, the grounds for presidential impeachment, nevertheless, are constituted by limited categories: misapplication of funds, abuse of official power, neglect of duty, encroachment on legislative prerogatives and corruption.

What's wrong with that?

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Image of Pukka Luftmensch
Pukka Luftmensch
on December 10, 2018 at 08:33:44 am

[…] Original Meaning of “High Crimes and Misdemeanors,” Part I, Law & Liberty (Aug. 8, 2018), https://www.lawliberty.org/2018/08/08/the-original-meaning-of-high-crimes-and-misdemeanors-part-1/ [https://perma.cc/6PJN-WSFS]. : The term “high Crimes and Misdemeanors” had been employed in […]

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Image of To End a (Republican) Presidency - Harvard Law Review
To End a (Republican) Presidency - Harvard Law Review
on October 23, 2019 at 14:01:24 pm

[…] that there is some bribery taking place. In addition, scholars have said an abuse of power is exactly what the Founding Fathers had in mind for […]

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Image of The many dishonest and bad defenses of Trump on Ukraine – Seeing2020
The many dishonest and bad defenses of Trump on Ukraine – Seeing2020
on October 23, 2019 at 15:51:23 pm

[…] that there is some bribery taking place. In addition, scholars have said an abuse of power is exactly what the Founding Fathers had in mind for […]

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Image of 6 defenses of Trump and Ukraine that have fallen apart — or are just plain bad – Seeing2020
6 defenses of Trump and Ukraine that have fallen apart — or are just plain bad – Seeing2020
on January 28, 2020 at 23:22:53 pm

"Keep Blackstone’s identification of “high misdemeanors” with “mal-administration” of high officers in mind. It comes back around in the Constitutional Convention’s discussion of the language that ultimately became the Constitution’s impeachment standard."

From the article above.

"The Founders and some of Hamilton’s audience were familiar with the concept from English law and several state constitutions had impeachment provisions for “maladministration,” a term Madison objected to and which caused Mason to add “high crimes and misdemeanors” to the clause as its replacement."

https://constitutioncenter.org/blog/what-the-founders-thought-about-impeachment-and-the-president

So is the article above being straightforward?

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Thomas Pollock

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.