I have been working on the subject of impeachment for many years, and my initial efforts culminated in “Impeaching the President,” 147 U. Pa. L. Rev. 279 (1998). I am grateful to the editors of the University of Pennsylvania Law Review for permission to revisit (while also revising) sections of that essay here, especially for chapters 3 and 4.
My amazing, loving sister, Joan Meyer, helped find the Wood house, without which this book would not exist. Special thanks to Ephraim Wood, builder of that particular house, American revolutionary, and an inspiration for my efforts here. None of us can entirely imagine what it must have been like for those embattled farmers and revolutionaries, back there in the 1770s, but a grateful note to Mr. Wood, with a tear: living in your house is a big help. Special thanks, too, to my new friends and neighbors in Concord, for their astonishing hospitality and grace.
My parents, Marian Goodrich Sunstein and Cass Richard Sunstein, are no longer with us, but my mother insisted that I know a little about the American founding, and my father’s quiet patriotism, which never drew attention to itself, helped define my childhood. My beloved wife, Samantha Power, was raised in Ireland, but she is honored and proud to be an American citizen, and she made this book much better. If she had lived in Concord during the time of the Revolution, the British would have been routed a whole lot quicker.
NOTES
1 MAJESTY AND MYSTERY
1. The tale has many versions. I’m telling my favorite.
2. Alexander Hamilton, “Federalist No. 1,” in The Federalist, ed. Cass R. Sunstein (Cambridge, MA: Harvard University Press, 2009), 1.
3. 119 Congressional Record 11913 (April 15, 1970).
4. Aaron Blake, “Impeach Trump? Most Democrats Already Say ‘Yes,’” Washington Post, February 24, 2017.
5. Ralph Waldo Emerson, “Concord Hymn, Sung at the Completion of the Battle Monument, July 4, 1837,” in The Collected Works of Ralph Waldo Emerson, vol. 9: Poems: A Variorum Edition, ed. Albert J. von Frank and Thomas Wortham (Cambridge, MA: Belknap Press of Harvard University Press, 2015), 307.
6. Ezra Ripley, With Other Citizens of Concord, A History of the Fight At Concord, on the 19th of April, 1775 (Concord, MA: Allen & Atwill, 1827).
7. Quoted in Betsy Levinson, “Home Portrait: Country Charm Meets Modern Amenities,” Wicked Local Concord, October 5, 2015.
8. Roger Sherman Hoar, “The Invention of Constitutional Conventions,” The Constitutional Review, vol. 2, no. 2 (April 1918).
2 FROM KING TO PRESIDENT
1. Patrick Henry, “Give Me Liberty or Give Me Death” (speech, Richmond, VA, March 23, 1775), Avalon Project, http://avalon.law.yale.edu/18th_century/patrick.asp.
2. Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (London: George Bell and Sons, 1906), 8.
3. Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage Books, 1993).
4. Ibid., 29.
5. Ibid., 29–30; italics added.
6. Ibid., 6.
7. Ibid., 6, 5.
8. David Hume, “Whether the British Government Inclines More to Absolute Monarchy, or to a Republic” (Essay VII of Essays, Moral, Political, and Literary, 1764), in Complete Works of David Hume (Hastings, UK: Delphi Classics, 2016), 11271.
9. Thomas Paine, quoted in Wood, Radicalism, 168.
10. John Adams to Richard Cranch, August 2, 1776, quoted in Wood, Radicalism, 169.
11. David Ramsay, quoted in Wood, Radicalism, 169.
12. Thomas Paine, “Letter to the Abbe Raynal,” in Life and Writings of Thomas Paine, ed. Daniel Edwin Wheeler (New York: Vincent Parke and Company, 1908), 242.
13. Wood, Radicalism, 7.
14. Walt Whitman, “Leaves of Grass,” in The Complete Poems, ed. Francis Murphy (New York: Penguin, 1996), 303.
15. Bob Dylan, “It’s Alright, Ma (I’m Only Bleeding),” in Bringing It All Back Home, Columbia Records, CS 9128, 1965. Vinyl.
16. Congress had “presidents” under the Articles of Confederation, but the position was largely ceremonial. A superb discussion of the period discussed in this and the following paragraphs is Michael Klarman, The Founder’s Coup (New York: Oxford University Press, 2016).
17. James Madison to Edmund Randolph, February 25, 1787, Founders Online, National Archives, http://founders.archives.gov/documents/Madison/01-09-02-0154; James Madison to Edmund Pendleton, February 24, 1787, Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-09-02-0151.
18. “Proceedings of Commissioners to Remedy Defects of the Federal Government,” Annapolis, September 11, 1786. Available at avalon.law.yale.edu/18th_century/annapoli.asp#1.
19. James Madison, “Friday June 1st 1787,” in Records of the Federal Convention of 1787, ed. Max Farrand, 4 vols. (New Haven: Yale University Press, 1911), 1:64.
20. Ibid.
21. James Madison, “Tuesday July 24,” in Farrand, Records, 2:99.
22. James Madison, “Saturday June 2,” in Farrand, Records, 1:85. For the authoritative discussion of Dickinson, see Jane E. Calvert, Quaker Constitutionalism and the Political Thought of John Dickinson (Cambridge: Cambridge University Press, 2008).
23. Alexander Hamilton, “Federalist No. 69,” in The Federalist, ed. Cass R. Sunstein (Cambridge, MA: Harvard University Press, 2009), 451–458.
24. Alexander Hamilton, “Federalist No. 70,” in The Federalist, ed. Sunstein, 461.
25. Ibid., 465.
26. Ibid., 464.
3 “SHALL ANY MAN BE ABOVE JUSTICE?”
1. Peter C. Hoffer and N. E. H. Hull, Impeachment in America, 1635–1805 (New Haven: Yale University Press, 1984).
2. Richard J. Ellis, Founding the American Presidency (Lanham, MD: Rowman & Littlefield, 1999), 234.
3. Raoul Berger, Impeachment: The Constitutional Problems (Cambridge, MA: Harvard University Press, 1973), 1.
4. Edmund Burke, “Thoughts on the Cause of the Present Discontents” (originally published as a pamphlet in 1770), in The Portable Edmund Burke, ed. Isaac Kramnick (New York: Penguin Books, 1999), 133–134.
5. Clayton Roberts, “The Law of Impeachment in Stuart England: A Reply to Raoul Berger,” 84 Yale Law Journal (June 1975), 1419, 1431. Berger contends that the term first appeared in 1386, see Berger, note 3 above, at 59, but Roberts shows Berger was mistaken on that point.
6. Interestingly, Roberts observes, “the House of Commons did seek to create a category of political offenses which were not violations of the known law. . . . But the House of Lords resolutely opposed this theory of impeachment.” Roberts, note 5 above, at 1436.
7. Berger, Impeachment, 64. On some of the complexities here, see Clayton Roberts, “Law of Impeachment.”
8. Berger, Impeachment, 66.
9. Ibid., 67–68. Berger’s sampling from Howell’s State Trials (London, 1809–1826) was selective; I offer a subset of cases in which he finds the charge of “high crimes and misdemeanors.”
10. Hoffer and Hull, Impeachment in America, 49–56.
11. Ibid., 56.
12. Ibid., 163.
13. Ibid., 68.
14. Ibid., 69.
15. Ibid., 76.
16. Ibid., 69–70.
17. Ibid., 95.
18. Thomas Jefferson, “Proposed Constitution for Virginia,” in The Life and Writings of Thomas Jefferson, ed. S. E. Forman (Indianapolis: Bowen-Merrill Company, 1099).
19. James Madison, “Observations on Jefferson’s Draft of a Constitution for Virginia,” 15 October 1788, Life and Writings of Thomas Jefferson.
20. Hoffer and Hull, Impeachment in America, 78.
21. Ibid.
22. James Madison, “Virginia Plan, May 29,” in The Records of the Federal Convention of 1787, ed. Max Farrand, 4 vols. (New Haven: Yale University Press, 1911), 1:22.
23. “The New Jersey P
lan, 15 June 1787,” Founders Online, National Archives, http://founders.archives.gov/documents/Washington/04-05-02-0207.
24. James Madison, “June 18,” in Farrand, Records, 1:282–293.
25. Madison, “Virginia Plan, May 29,” 1:22.
26. James Madison, “June 2,” in Farrand, Records, 1:85.
27. Quoted in Mark David Hall, Roger Sherman and the Creation of the American Republic (New York: Oxford University Press, 2013), 2.
28. James Madison, “June 2,” in Farrand, Records, 1:85.
29. Ibid.
30. James Madison, “June 2,” in Farrand, Records, 1:88.
31. Hoffer and Hull, Impeachment in America, 98.
32. “Journal, June 2, 1787,” in Farrand, Records, 1:78.
33. Ibid., 1:77.
34. “Journal, June 13, 1787,” in Farrand, Records, 1:226.
35. James Madison, “June 18,” in Farrand, Records, 1:292.
36. James Madison, “July 20,” in Farrand, Records, 2:65.
37. Ibid., 2:64.
38. Ibid., 2:66.
39. Ibid., 2:65.
40. Ibid., 2:67.
41. Ibid., 2:65.
42. Ibid.
43. Ibid., 2:66.
44. Ibid.
45. Ibid.
46. Ibid., 2:65.
47. Ibid.
48. Ibid., 2:69.
49. James Madison, “August 6,” in Farrand, Records, 2:186.
50. “Journal, August 20,” in Farrand, Records, 2:337.
51. “Journal, September 4,” in Farrand, Records, 2:495.
52. James Madison, “September 8,” in Farrand, Records, 2:550.
53. Hoffer and Hull, Impeachment in America, 68.
54. Ibid.
55. James Madison, “September 8,” in Farrand, Records, 2:551.
56. James Madison, “Observations on Jefferson’s Draft of a Constitution for Virginia,” in The Papers of James Madison, ed. William T. Hutchinson and William M. E. Rachal, 17 vols. (Chicago: University of Chicago Press, 1962–1991), 10:77.
57. James Madison, “September 8,” in Farrand, Records, 2:551.
58. Ibid.
59. Ibid.
60. Alexander Hamilton, “Federalist No. 66,” in The Federalist Papers, ed. Ian Shapiro (New Haven: Yale University Press, 2014), 335.
61. James Madison, “June 2,” in Farrand, Records, 1:85–86.
62. James Madison, “September 8,” in Farrand, Records, 2:550.
63. Indeed, it has been argued that in Mason’s mind, “maladministration,” as he understood it, would count as a high crime or misdemeanor. Hoffer and Hull, Impeachment in America, 101.
4 WHAT WE THE PEOPLE HEARD
1. Madison offered an explanation to Jared Sparks (a historian and later president of Harvard College), who reported Madison’s view: “Opinions were so various and at first so crude that it was necessary they should be long debated before any uniform system of opinion could be formed. Meantime, the minds of the members were changing and much was to be gained by a yielding and accommodating spirit. Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to retain their ground, whereas by secret discussion, no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth and was open to argument.” Jared Sparks, “Journal,” in The Records of the Federal Convention of 1787, ed. Max Farrand, 4 vols. (New Haven: Yale University Press, 1911), 3:479.
2. Gordon S. Wood, The Creation of the American Republic, 1776–1787, rev. ed. (Chapel Hill: University of North Carolina Press, 1998), 523.
3. Alexander Hamilton, “Federalist No. 65,” in The Federalist Papers, ed. Ian Shapiro (New Haven: Yale University Press, 2014), 330–331.
4. Cassius II, “To Richard Henry Lee, Virginia Independent Chronicle, April 9, 1788,” in The Documentary History of the Ratification of the Constitution, Digital Edition, ed. John P. Kaminski et al. (Charlottesville: University of Virginia Press, 2009).
5. “Virginia Ratification Debates, June 18, 1788,” in The Documentary History of the Ratification.
6. “In Convention, Richmond, June 18, 1788,” in The Debates in the Several State Conventions on the Adoption of the Constitution, ed. Jonathan Elliot, 5 vols. (Washington, D.C.: Taylor and Maury, 1863), 4:498.
7. “The Virginia Convention, June 10, 1788,” in The Documentary History of the Ratification.
8. “The Virginia Convention, June 17, 1788,” in The Documentary History of the Ratification.
9. Among lawyers, there is a vigorous debate about whether the emoluments clause applies to the president. Randolph’s remarks are a point in favor of the view that it does.
10. “July 28, 1788,” in Debates in the Several State Conventions, 4:126.
11. Ibid., 126–127. The context of these comments was somewhat confusing; Iredell was asking questions about how the Senate would respond to such actions.
12. Ibid., 113.
13. Ibid., 126; Peter C. Hoffer and N. E. H. Hull, Impeachment in America, 1635–1805 (New Haven: Yale University Press, 1984), 118.
14. Curtius III, “New York Daily Advertiser, November 3, 1787,” in The Documentary History of the Ratification.
15. Cassius VI, “Massachusetts Gazette, December 21, 1787,” in The Documentary History of the Ratification.
16. Americanus I, “Virginia Independent Chronicle, December 5, 1787,” in The Documentary History of the Ratification.
17. U.S. Congress, Annals of Congress, 1st Congress, 1789.
18. James Wilson, “Lectures on Law, Part 2, No. 1, Of the Constitutions of the United States and of Pennsylvania—of the Legislative Department,” in The Works of James Wilson, ed. Robert G. McCloskey, 2 vols. (Cambridge, MA: Harvard University Press, 1967), 1:426.
19. Ibid.
20. Joseph Story, Commentaries on the Constitution of the United States, ed. Melville M. Bigelow, 2 vols., 5th ed. (Boston: Little, Brown and Company, 1891), 1:580–585.
21. William Rawle, A View of the Constitution of the United States of America (New York: Da Capo Press, 1970), 215.
5 INTERPRETING THE CONSTITUTION: AN INTERLUDE
1. Thurgood Marshall, Commentary, “Reflections on the Bicentennial of the United States Constitution,” 101 Harvard Law Review 1, 5 (1987).
2. Antonin Scalia, interview on All Things Considered, “Scalia Vigorously Defends a ‘Dead’ Constitution,” NPR, April 28, 2008, http://www.npr.org/templates/story/story.php?storyId=90011526.
3. I am bracketing some complexities here. See David A. Strauss, The Living Constitution (New York: Oxford University Press, 2010).
4. Thomas Jefferson to Samuel Kercheval, June 12, 1816, in The Life and Writings of Thomas Jefferson, ed. S. E. Forman (Indianapolis: Bowen-Merrill Company, 1900), 172.
5. There are many varieties of originalism. For discussion, see, for example, Lawrence B. Solum and Robert W. Bennett, Constitutional Originalism: A Debate (Ithaca, NY: Cornell University Press, 2011); Lawrence B. Solum, Originalist Methodology, 84 University of Chicago Law Review 269 (2017). With respect to the nature of originalism and its best defenses, Solum’s work is especially illuminating.
6. Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
7. See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Vintage, 2005).
8. See, for example, Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997).
9. Specialists will note that in Nixon v. United States, 506 U.S. 224 (1993), the Court ruled that a procedural issue raised in an impeachment proceeding was “nonjusticiable,” meaning that courts could not get involved. That’s my point. As the Court put it, “the Judiciary, and the Supreme Court in particu
lar, were not chosen to have any role in impeachments.”
10. In light of these arguments, the impeachment provision is not the only part of the Constitution for which originalism makes sense, even to those who do not ordinarily embrace originalism. Consider, for example, the emoluments clause. Circumstances have not relevantly changed; judicial precedents are sparse; it is doubtful that abandonment of the original meaning would lead to improvements.
6 IMPEACHMENT, AMERICAN-STYLE
1. C-SPAN, “Presidential Historians Survey, 2017: Total Scores/Overall Rankings,” https://www.c-span.org/presidentsurvey2017/?page=overall.
2. For the tale, see Peter C. Hoffer and N. E. H. Hull, Impeachment in America, 1635–1805 (New Haven: Yale University Press, 1984), 147.
3. Lyon G. Tyler, The Letters and Times of the Tylers, vol. 2 (Richmond, VA: Whittle and Shepperson, 1885), 177.
4. Asher C. Hinds and Clarence Cannon, Hinds’ precedents of the House of Representatives of the United States: including references to provisions of the Constitution, the laws, and decisions of the United States Senate, vol. 3, Sec. 2398 (Washington D.C.: G.P.O, 1907), 821.
5. Ibid., 822.
6. Alexander Hamilton, “Federalist No. 65” in The Federalist Papers (Mineola, NY: Dover Publications, 2014), 319.
7. Richard Nixon, “Annual Message to Congress on the State of the Union” (speech, Washington, D.C., 1970), The American Presidency Project, http://www.presidency.ucsb.edu/ws/?pid=2921.
8. Another article, not discussed here, focuses on the bombing of Cambodia; it failed by a vote of 12 to 26. Its text is noteworthy: “In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, on and subsequent to March 17, 1969, authorized, ordered, and ratified the concealment from the Congress of false and misleading statements concerning the existence, scope and nature of American bombing operations in Cambodia in derogation of the power of the Congress to declare war, to make appropriations and to raise and support armies.” A discussion of this article would require an investigation of many details, but insofar as the allegation involves false statements to Congress in the context of the use of force, we are at least in the general ballpark of legitimate grounds for impeachment.
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