A Comment on Professor Natelson’s Interpretation of “high...Misdemeanors”David Weisberg

I’d like to comment on one part of Prof. Robert Natelson’s very interesting recent post, headed, “When Can an Originalist Scholar Begin with the Constitution’s Text?”  Prof. Natelson focuses on scenarios in which it is unhelpful for an originalist to begin an interpretation by focusing on the text of the Constitution, and then only later turn to external sources to confirm the text-based interpretation.  One scenario in which that approach is not optimal is where “[a] word or phrase with an ordinary meaning appears in the Constitution, but as a legal term of art”. 

An example that Prof. Natelson cites is the phrase “high...Misdemeanors” in the impeachment provision of Art. II, Sec. 4.  Prof. Natelson has determined that, as a legal term of art around the end of the eighteenth century, “high Misdemeanors were serious crimes not meriting the death penalty, such as bribery (which the Constitution mentions in this context) and assault.”  He therefore concludes that the technical, legal meaning is the one that should be applied to the phrase as it appears in Art. II, Sec. 4.

I consider myself a textualist when engaged in constitutional interpretation; no interpretation of the Constitution is satisfactory if (a) it either creates, explicitly or implicitly, an internal inconsistency with another clearer, less controversial constitutional provision, or (b) as a practical matter, it generates an outcome that is significantly less satisfactory than that which would be generated by a competing interpretation.  In my view, the problem with Prof. Natelson’s interpretation of “high Misdemeanors” is that no reasonable person—and certainly no group as astute, far-sighted, and clear-minded as the framers—would as a practical matter accept the rigidly constricted impeachment provision that emerges from that interpretation.

If Prof. Natelson is correct, then the framers intended that the president could properly be removed on impeachment only if he or she had committed a crime.  But suppose, soon after a president took office, he accepted the teachings of the Quakers (whose adherence to non-violence was well known to the framers) and therefore refused, as commander-in-chief, to defend the United States against an armed enemy attack.  (One can easily posit an unlimited number of almost equally dangerous circumstances, none of which would involve criminality.)  Are we to believe that the framers would have been unable to imagine that scenario, or that, when they did, they would have wanted that president to continue for years in office, exempt from impeachment because innocent of crime?

The Oxford English Dictionary defines “misdemeanour” as: “Evil behaviour, misconduct. Now rare.”  This definition, although now rare, has been valid since at least 1494, and the O.E.D. cites an instance of its usage in 1775.  The O.E.D. defines “high” in the relevant sense as: “Of great consequence; important, weighty, grave, serious.”  This definition has been valid since circa 1200.

I accept Prof. Natelson’s research regarding the meaning of “high Misdemeanor” as a legal term of art.  But the conclusion I draw is that sometimes a phrase in the Constitution had a technical meaning as a legal term of art in the late eighteenth century, and that technical meaning was not the one invoked by the framers.  Instead, we ought to conclude that the ordinary non-technical meaning—here, the understanding that “high Misdemeanors” could refer to seriously evil behavior or grave misconduct—was relied on by the framers, because that is the only interpretation that makes practical sense.