« John Vlahoplus on Ratification of the Equal Rights Amendment
Michael Ramsey
| Main | Travis Crum on Originalism and the Fifteenth Amendment
Michael Ramsey »

02/03/2020

Rob Natelson Changes His Mind on Impeachment
Michael Ramsey

In The Epoch Times, Rob Natelson: Dershowitz Was Correct: Impeachment Does Require Criminal-Type Conduct.  From the introduction: 

When professor Alan Dershowitz claimed before the Senate that the Constitution allowed impeachment only for crimes and crime-like activity, I was skeptical.

As he admitted, most constitutional scholars think the bar is lower. I was among them: In both scholarly and popular articles, I’ve argued that the phrase “high misdemeanors” means what the Founders called breach of trust and we call breach of fiduciary duty.

Yet I knew Dershowitz was correct that the framers wanted the grounds for impeachment in America to be narrower than those sometimes employed in England. So I decided to fact-check his statements.

When a constitutional word or phrase seems unclear, consulting 18th century law books often is the best way clarify it. After all, the Constitution is a legal document, the supreme law of the land. Most of its drafters and expounders were prominent lawyers or laymen who (like George Mason, who suggested the “high Crimes and misdemeanors” standard) were legally sophisticated. Surprisingly, however, law professors and other constitutional writers tend to disregard 18th century legal materials, aside from the commentaries of William Blackstone.

I already was familiar with what the Founders said explicitly about impeachment. As part of my fact check, therefore, I examined a wide range of 18th legal writings: court cases, books on criminal law, voluminous legal digests, and statutes.

Conclusion: Dershowitz is essentially correct and I (and most other writers) have been wrong.

The legal materials show that the constitutional phrase “Treason, Bribery, and other high Crimes and Misdemeanors” generally does require serious criminal conduct. ...