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08/12/2018

More from Michael Stokes Paulsen on High Crimes and Misdemeanors
Michael Ramsey

At Liberty Law Blog, Michael Stokes Paulsen has two posts on the original meaning of the impeachment clause: 

The Original Meaning of “High Crimes and Misdemeanors,” Part I (addressing the English law background)

The Original Meaning of “High Crimes and Misdemeanors,” Part II (addressing the founding era).

From the introduction:

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.” [In part II], 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.

Also this important methodological preface: 

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.