I hope everyone excuses the length of this post...
I linked this article published by the Federalist Society in another location. I think the following portion of it, including footnotes, makes very clear the thinking of 18th Century American political theorists about the meaning of "High Crimes and Misdemeanors" -
...
II. Eighteenth Century American Sources
As is now widely acknowledged, fiduciary government (to the extent practicable) was one of the Founders’ core political principles, one of the objectives that informed the drafting and adoption of the Constitution.[33] Fiduciary government was not their only core political value, but it certainly ranked within the top five.[34]
Leading participants in the drafting and ratification of the Constitution regularly connected impeachment with fiduciary violations. At the federal convention, Madison argued that an impeachment procedure for the President was necessary because:
"it [was] indispensable that some provision should be made for defending the Community agst [sic] the incapacity, negligence or perfidy of the chief Magistrate. . . . 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.”[35]
Gouveneur Morris added that he “was now sensible of the necessity of impeachments. . . . [The President] may be bribed by a greater interest to betray his trust.”[36] When defending the Constitution in South Carolina, Charles Cotesworth Pinckney pointed out that impeachment would be available for federal officers who “behave amiss, or betray their public trust,”[37] and his ally Edward Rutledge made a similar statement in the same context.[38]
Moreover, there are very many instances of members of the founding generation linking impeachment to breaches of specific fiduciary duties. Thus, at the Virginia ratifying convention, Edmund Randolph saw it as a remedy for dishonesty, disloyalty, and self-dealing.[39] George Nicholas and James Madison referred to it as a remedy for maladministration and violating the national interest,[40] and Patrick Henry as a response to “violation of duty.”[41]
On the other hand, Founders made it clear that “high . . . Misdemeanors” were neither politically defined nor limited to criminal offenses. Edmund Randolph[42] affirmed that “No man ever thought of impeaching a man for an opinion,”[43] and the influential Federalist essayist Tench Coxe assumed that an officer could be impeached for conduct not interdicted by the criminal law.[44]
...
Footnotes
...
[33] E.g., Gary Lawson & Guy Seidman, “A Great Power of Attorney”: Understanding the Fiduciary Constitution (2017); Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009). Professors Lawson, Seidman, and Teachout all grant me some credit for this realization, first stated in Robert G. Natelson, The Constitution and the Public Trust, 52 Buffalo L. Rev. 1077 (2004).
[34] Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 Ga. L. Rev. 1 (2017) (explaining that the Founders balanced five core values as they formed the new government under the Constitution: republicanism, decentralization, liberty, effective government, and fiduciary government).
[35] 2 Records of the Federal Convention at 65-66 [hereinafter Farrand] (italics added).
[36] Id. at 68 (italics added). For analogous formulations, see 1 Farrand, supra note 35, at 292 (quoting a Virginia Plan provision that “The Governour Senators and all officers of the United States to be liable to impeachment for mal-- and corrupt conduct; and upon conviction to be removed from office, & disqualified for holding any place of trust or profit”); id. at 78 (reporting approval of motion by Hugh Williamson that the executive be “removable on impeachment and conviction of mal-practice or neglect of duty”); id. at 337 & 344 (reporting the convention’s resolutions submitted to the Committee of Detail providing for “impeachment and removal from office for neglect of duty, malversation, or corruption”).
[37] 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 281 (Jonathan Elliot ed., 2d ed. 1901) [hereinafter Elliot’s Debates] (italics added).
[38] Id. at 276 (reporting that Edward Rutledge said, “If the President or the senators abused their trust, they were liable to impeachment and punishment; and the fewer that were concerned in the abuse of the trust, the more certain would be the punishment.”).
[39] 3 Elliot’s Debates, supra note 37, at 369 (quoting Edmund Randolph connecting impeachment to dishonesty); id. at 486 (quoting him connecting impeachment to receipt of emoluments from foreign powers—i.e., disloyalty and self-dealing).
[40] Id. at 17 (quoting George Nicholas connecting impeachment to “mal-administration”); id. at 506 (quoting him connecting impeachment to violating the interest of the nation); id. at 516 (quoting James Madison to the same effect).
[41] Id. at 398 (quoting Patrick Henry connecting impeachment to “violation of duty”). See also id. at 500 (quoting James Madison connecting impeachment to the President calling Senators from only a few states—i.e., partiality); id. at 512 (quoting Patrick Henry connecting impeachment to actions “derogatory to the honor or interest of their country”); id. at 506 (quoting George Nicholas comparing impeachment under the Constitution to impeachment in England to the extent that officials can be impeached for entering treaties “judged to derogate from the honor and interest of the nation”); Paul Leicester Ford, Pamphlets on The Constitution of The United States 51 n.* (1888) (quoting Federalist Noah Webster recommending impeachment as the appropriate remedy should federal officials exceed their authority); Berger, supra note 5, at 89 (collecting other examples).
[42] Randolph, then governor of Virginia, previously had served as state attorney general and had enjoyed a very large private practice. He served at the federal convention, in which he was the principal spokesman for the Virginia Plan. Eventually, he was to be the first Attorney General of the United States and the second Secretary of State. After resigning as Secretary of State, he returned to private practice. See generally John J. Reardon, Edmund Randolph: A Biography (1974).
[43] 3 Elliot’s Debates, supra note 37, at 401.
[44] Tench Coxe, “An American Citizen,” reprinted in 13 The Documentary History of the Ratification of the Constitution 431, 434 (Merrill Jensen, John P. Kaminski & Gaspare J. Saladino eds., 1976-2017) (stating “if the nature of his offence, besides its danger to his country, should be criminal in itself—should involve a charge of fraud, murder or treason—he may be tried for such crime”).
Last edited:
