A Reply to David Weisberg on "high ... Misdemeanors"Rob Natelson

In arguing against my conclusion that “high . . . Misdemeanors” means in the Constitution what it meant in contemporaneous law, David Weisberg posits the example of a president suddenly converting to Quaker pacifism and refusing the defend the country. The House impeachment managers cited an analogous example: the president unexpectedly campaigning for totalitarianism.

Yet it must be admitted that those eventualities are very far-fetched, as illustrated by the fact that they have not happened in the 232 years we have lived under the Constitution. And for good reason: the Constitution was designed to screen out "loose cannons" from the presidency. That was one reason for the complicated presidential election system and for the Constitution’s age, residency, citizenship, and “natural born” requirements—not to mention the short presidential term.

Against the remote possibility of a president suddenly going berserk, there were countervailing factors far more immediate to the Founders—factors arguing for their using the expression “high . . .Misdemeanor” the way the law used it. I won’t repeat here all the evidence mentioned in my article on the subject. But here are a few considerations that would have influenced the Founders in an immediate way:

* The legal meaning of “high misdemeanors” appears to have been the most common lay meaning also. It was widely repeated in non-legal as well as legal sources. For example, contemporaneous encyclopedias—including the Encyclopaedia Britannica—uniformly defined “high misdemeanor” as a very serious crime (“next to high Treason”). The same general usage turns up in early congressional statutes.

* In Britain, officers served for indefinite terms. By contrast, the president and vice president were to serve only four years. The Founders seem to have viewed this short term as a partial substitute for British-style impeachment, so it made sense for them to narrow the grounds from what they had been in Britain. I think there is little dissent on this point among impeachment scholars; the only argument is about how much the Founders wished to narrow the grounds.

* A specific or formulaic, rather than loose, construction of the grounds for impeachment serves to preserve the independence of the presidency from Congress. Preserving executive independence certainly was a consideration far more immediate to the Founders than the remote possibility that the president with no prior leanings in that direction might suddenly become a strict pacificist.

*Then there is the construction of the Impeachment Clause itself: Treason, Bribery, other high Crimes and Misdemeanors—offering one example of a high crime, one of a high misdemeanor, and then general wording covering both categories.

Mr. Weisberg argues that “no interpretation of the Constitution is satisfactory if . . . as a practical matter, it generates an outcome that is significantly less satisfactory than that which would be generated by a competing interpretation.” I would caution, however, against interpreting the original Constitution based on what we moderns consider “practical” or “satisfactory.” It is the views of the Constitution’s ratifiers (and, indirectly its framers) that are decisive on such points—not ours.