The Constitutional Underpinnings of Impeachment

When drafting the U.S. Constitution, the framers debated whether to allow for impeachment of the President. After determining it was essential to prevent abuse of power, the framers went on to consider the process for impeachment, as well at what types of conduct would warrant removal from office.

Authorizing Impeachment

The framers first considered whether to authorize impeachment, a practice which dated back to the 14^th Century in Britain. At the time the U.S. Constitution was being drafted, many states had already incorporated impeachment into their own constitutions.

While some believed that elections would be sufficient to punish a President for any potential misconduct, the majority agreed that impeachment was a necessary check on executive power and potential abuse. James Madison viewed the Impeachment Clause as “indispensable . . . for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.”As described by Massachusetts’sElbridge Gerry, “A good magistrate will not fear [impeachments] . A bad one ought to be kept in fear of them.”

Trying Impeachments

Once they decided to include impeachment in the Constitution, the framers struggled to determine who should be able to try impeachments, either Congress or the Supreme Court. The Virginia Plan called for assigning the power to try impeachments to the judicial branch. However, the framers believed that it was important to have a“numerous court for the trial of impeachments.”

The framers ultimately decided to divide impeachment authority between the two houses of Congress. Article I, Section 2, Clause 5gives the House of Representatives the sole power to bring impeachment charges. To officially impeach the President, a majority of the House must approve the charges.

Article I, Section 3, Clause 6gives the Senate the power to try an official facing impeachment charges. According to Hamilton, the Senate was the “most fit depositary of this important trust,” likely because its members were more educated and sophisticated than their colleagues in the House.

The framers determined that a two-thirds majority should be necessary to convict. As Hamilton wrote inthe Federalist No. 65, “[t]he awful discretion which a court of impeachments must necessarily have to doom to honor or infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons.”

Crimes Eligible for Impeachment

Article II, Section 4establishes the grounds for impeachment: “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.”

At the time, many state constitutions allowed impeachment for “maladministration.” However, several framers, including James Madison of Virginia, argued that allowing impeachment for simply being ineffective set the bar too low. They were also concerned that the standard was too subjective.

The framers all agreed that treason and bribery constituted impeachable offenses. George Mason, who was tasked with producing the first draft of the Constitution, established the catch-all of “other high Crimes and Misdemeanors.” The term, which was borrowed from British law, referenced crimes by public officials against the government.

Hamilton defined impeachable offenses as “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Partisan Nature of Impeachment

The framers acknowledged that the innately political nature of impeachment would make it divisive. Impeachment proceedings “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused,” Hamilton wrote. “In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

At the same time, the founding fathers believed that it was ultimately necessary to have a mechanism in place that was outside of the traditional judicial process and designed specifically to address public officials who had violated their duty to uphold the Constitution.

Interested in learning more about political figures and judges who have been impeached in the past? Here is a list of related articles

• The Who’s Who of Impeachment
• Congressional Guide to Impeachment: How to Impeach
• Judge Samuel B Kent Avoided Impeachment by Resigning
• Impeachment of Judge Halsted L Ritter
• Federal Judge Harold Louderback Beat Impeachment Charges
• Impeachment of Judge George W English Dismissed After Resignation
• Impeachment of Judge Robert W Archbald
• District Court Judge Charles Swayne Beats Impeachment
• Federal Judge John Pickering Remebered For His Impeachment
• Judge G Thomas Porteous Is Last Judge to Be Impeached
• Judge Walter L. Nixon Impeached After Perjury Conviction
• Judge Alcee Hastings Impeached for Bribery
• Judge Harry Claiborne Impeached for Tax Evasion
• Lincoln Ally US District Judge Mark W Delahay Impeached for Intoxication
• District Court Judge West Humphreys Impeached After Joining Confederacy