How Did Framers Of The Constitution Come Up With 'High Crimes And Misdemeanors'?

Dec 5, 2019
Originally published on December 5, 2019 6:36 pm
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AILSA CHANG, HOST:

Article II, Section IV - it's very short, and it is at the heart of what's happening in Washington right now. So here we go. In the U.S. Constitution, Article II, Section IV says the president, vice president and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery or other high crimes and misdemeanors - simple and not so simple. And yes, it is getting mired in the morass of party politics. So we want to take the time to better understand it as best we can. And for that, we call on NPR's Ron Elving.

Hey, Ron.

RON ELVING, BYLINE: Hey. Good to be with you, Ailsa.

CHANG: So why did the authors of the Constitution separate out two serious, very specific crimes - treason and bribery - and then just stop there? Why did they leave it so vague, with high crimes and misdemeanors?

ELVING: People have been arguing about that and wondering about that ever since the Constitution was signed...

CHANG: (Laughter).

ELVING: ...Two hundred and thirty-two years ago on a hot day in Philadelphia. It was one of the last things they were arguing about. And James Madison, sometimes called the father of the Constitution, thought it was important to have a restraint on the president other than just the next election. And they thought treason was bad. They were very worried about foreign powers and their interference in our affairs.

CHANG: Sure.

ELVING: And they also wanted to have some kind of statement about bribery, which they saw as using the powers of the presidency to leverage or gain some sort of personal benefit.

CHANG: OK.

ELVING: Now, after that, making a longer list would either have to be really long and contentious - one thing after another - or it would have to be really short and inadequate, which would leave out a lot of things the framers thought might happen and might make it impossible for a given president sometime in the future to continue.

CHANG: OK, so then is that when they came up with the phrase other high crimes and misdemeanors? I mean, what did that even mean then, or what does it even mean now?

ELVING: I - there's the rub.

(LAUGHTER)

ELVING: OK. You know that's Shakespeare.

CHANG: Right.

ELVING: And we do tend to borrow from the past at moments like this, and that was just what the framers were doing. They were borrowing a phrase from English Parliamentary law. It's actually even older than Shakespeare. There are records of its use in the 14th century to describe the grounds on which Parliament could remove certain counselors or advisers to the king. Now, not the king himself, of course.

CHANG: Right.

ELVING: At that time, the king was considered above the law.

CHANG: Above the law.

ELVING: But our framers applied the phrase to this new thing they were creating - the American president - to say he explicitly was not above the law.

CHANG: But was there a lot of debate at the constitutional convention about this phrase - high crimes and misdemeanors?

ELVING: Not so much about that phrase, but about other terms that they first considered. One was maladministration. How that...

CHANG: Ew. That sounds even worse.

(LAUGHTER)

ELVING: Yes. How's that for broad? James Madison, again, said that's so flexible; it'll just mean that the president is serving at the pleasure of the Senate. So it would be like a no-confidence vote in the British Parliament. High crimes and misdemeanors was a compromise to settle that particular dispute. It was a phrase they had heard, that they understood in their own time. And Madison was very much an architect of compromise to settle disputes.

CHANG: Well, that was all very fine and dandy for Madison, the compromiser, but this just means that there was a big fight over what high crimes and misdemeanors means anytime you want to use it, right?

ELVING: Yes. But that is, in a sense, its purpose. So in 1998, you had a Republican House decide that perjury and obstruction of justice were enough to impeach Democratic President Bill Clinton. The Senate disagreed and did not muster a majority for either of those two articles of impeachment.

CHANG: So do you think James Madison would be OK with what's happening on the Hill?

ELVING: Yes, in the sense that it was in the spirit of the entire Constitution, which is to invite a reasoned struggle between competing interests and then compel some sort of resolution. That applies to the separation of powers, to the three branches of government and the way Congress itself is divided between the House and Senate. They all have their forms of authority, and they all have limits on that authority. And we're going to see that here again with the House exercising its right to impeach and the Senate exercising its right to hold a trial and decide whether or not to remove the president.

CHANG: Can't wait to watch it all unfold. That's NPR's Ron Elving.

Thanks so much, Ron.

ELVING: Thank you, Ailsa.

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