« Lorianne Updike Toler: Law Office Originalism
Michael Ramsey
| Main | Cass Sunstein: Textualism and the Duck-Rabbit Illusion
Michael Ramsey »

10/25/2020

James Cleith Phillips & John Yoo: The Original Meaning of Presidential Impeachment
Michael Ramsey

James Cleith Phillips (Chapman University -- Dale E. Fowler School of Law) and John Yoo (University of California at Berkeley School of Law) have posted You're Fired: The Original Meaning of Presidential Impeachment (Southern California Law Review, Vol. 94, No. 4, 2021) (73 pages) on SSRN.  Here is the abstract:

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of impeaching a President are again salient. Unlike other constitutional provisions, because the Supreme Court has deemed impeachment the ultimate political question, neither much historical practice nor case law informs our understanding of the Impeachment Clause. Thus, the original meaning takes on great weight. Further, previous scholarships has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. What is more, this article becomes the first in American legal scholarship to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law in that not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established term of art in Britain. The article then applies these findings to the impeachment of President Trump, providing an in-depth analysis of the proceeding in light of the Constitution’s original meaning, critiquing arguments made on both sides.