JURIST Guest Columnist Wilson Huhn of Duquesne University School of Law discusses historical perspectives on impeachment.
The power of impeachment is a central feature of our democracy. The founders of our country and the framers of our Constitution gave the matter careful consideration. They would not have created the office of the Presidency nor would they have given the President sweeping powers without this necessary check and balance on the exercise of those powers.
The American people elect the President, but elections are no protection against a President who seeks to undermine the electoral process. Only impeachment can prevent a President from securing election or re-election through corrupt means.
Every American, including the President, is subject to the law, and moreover the President is bound to faithfully execute the law. But when the President refuses to execute the law–and when the Justice Department contends that a sitting President is not subject to indictment–there is no remedy for a corrupt or lawless President but impeachment.
The President is Commander-in-Chief, nominates ambassadors, and is the sole voice of this country in foreign affairs. But these powers are not unbounded. Only Congress may declare war. Only Congress can confirm the appointment of military officers and ambassadors. Only Congress can ratify treaties or enact legislation regulating foreign commerce. The President has the sole power to speak on behalf of the United States, but if the President betrays this country to foreign powers then the President can and should be impeached.
The core principle of American government is that all just powers of government are derived from the consent of the governed. This principle took centuries to take root, and grow, and blossom in England and then in America. Centuries ago, the King was sovereign; still, Parliament arose to challenge those absolute powers, and in 1376 the “Good Parliament” chose to impeach Richard Lyons (Lord Latimer), the utterly corrupt Keeper of the Mint. Ten years later the “Wonderful Parliament” impeached Michael de la Pole (the Earl of Suffolk), the Chancellor, for embezzlement and negligence. Parliament coined the phrase “high crimes and misdemeanors” to describe the Chancellor’s offenses, and thereafter used the term to impeach and remove “high” public officials who abused their powers. In 1765 Blackstone defined “high misdemeanors” as “the maladministration of such high officers, as are in the public trust or employment.” In 1786, Parliament impeached Warren Hastings, the Governor General of India, for corruption. Edmund Burke, who championed women’s rights and the rights of the people of America and the rights of the people of India, led the prosecution of Hastings in Parliament and authored “The Articles of Impeachment for High Crimes and Misdemeanors Against Warren Hastings” accusing Hastings of corrupt dealings and fomenting violence in India–not crimes, but grave abuses of power.
After the establishment of English colonies in America, it did not take long for the American colonists to similarly assert the right to impeach public officials who abused their powers. In 1685 the Pennsylvania Provincial Assembly voted to impeach the Pennsylvania Chief Justice Nicholas More for “high crimes and misdemeanors.” He was accused of corruption, bullying juries and failing to hold court. Royal and proprietary officials were also impeached by colonial assemblies in Rhode Island, Maryland, Virginia, and South Carolina. The most famous impeachment was that of Chief Justice Peter Oliver in Massachusetts in 1774, the year before the beginning of the Revolutionary War. Oliver was impeached not for committing a crime, but for accepting a salary from the crown instead of the colonial legislature. A leading Loyalist, his loyalty to the American people was suspect.
In 1776, after the Declaration of Independence was issued, the American people adopted state constitutions, and nearly every one of them provided for impeachment. In Pennsylvania, for example, the House of Representatives was authorized to impeach public officers who were then tried by the President and Council of Pennsylvania. In 1787 when the Constitutional Convention met in Philadelphia the President of Pennsylvania–the person who had the authority to preside over trials of impeachment in that state–was Benjamin Franklin, who became a leading advocate for granting Congress the power to impeach the President of the United States.
After winning the Revolution the American government was formed by the States–the Articles of Confederation, which created a “perpetual league of friendship” among the States. But our country was weak and divided, and we desired “a more perfect union,” and the Framers designed a new government that would be created not by the States but by “We the People,” and the principle of popular sovereignty–the notion that sovereignty resides in the people, not in the government–took another step forward.
The Framers acknowledged that this new government needed a “chief magistrate”–a single voice to enforce the law and represent our country with foreign nations. But they were firm that this leader would not be a King. Unlike a King the President would be elected. And unlike a King the President could be impeached. At every point where the Framers discussed the office of the Presidency–whether the Presidency should be created at all; whether the office should be held by a single individual or by a committee; what powers the office should exercise–any doubts or opposition were overcome by the promise that President, unlike a King, could be impeached. Upon this the Framers were resolute. Here are but a few of their observations on this point:
James Wilson: “Far from being above the laws, he [the President] is amenable to them by impeachment.”
James Madison, in response to the argument that a President might abuse his power by pardoning co-conspirators: “If the President by connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him.”
James Wilson, on the same point: “If he be himself a party to the guilt he can be impeached and prosecuted.”
Edmund Randolph: “There is another provision against the danger … of the President receiving emoluments from foreign powers. If discovered, he may be impeached.”
William Davie: “If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. I consider this as a security for the good behavior of our Executive.”
George Mason: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?”
Benjamin Franklin: “What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in which he was not only deprived of his life but of the opportunity of vindicating his character. It would be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”
James Madison: “I think it indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief Magistrate. The limitation of the period of his service is not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”
Elbridge Gerry: “I urge the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them. I hope the maxim would never be adopted here that the chief magistrate could do no wrong.”
Gouverneur Morris, who had initially opposed the power of impeachment: “My opinion has been changed by the arguments used in the discussion. I am now sensible of the necessity of impeachments, if the Executive is to continue for any time in office. Our Executive is not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by displacing him. … This Magistrate is not the King but the prime-Minister. The people are the King.”
Indeed. The people are the King.
Wilson Huhn is a Professor of Law at Duquesne University School of Law. Huhn teaches constitutional law courses at Duquesne, and previously served as associate director of the Constitutional Law Center and the C. Blake McDowell, Jr., professor of law at Akron Law. Huhn received his B.A. at Yale University and J.D., cum laude, at Cornell University, where he was a member of the Cornell Law Review.
Suggested citation: Wilson Huhn, The Framers’ Views on Impeachment, JURIST – Academic Commentary, February 17, 2020, https://www.jurist.org/news/2020/02/the-framers-views-on-impeachment/
This article was prepared for publication by Gabrielle Kolencik, a JURIST Staff Editor. Please direct any questions or comments to her at email@example.com
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