What is a ‘Misdemeanor’ Under the Constitution and Why is it Important?

by VINCENT GIOIA September 15, 2010
For some time the issue of presidential eligibility has focused on whether the constitutional requirements are met by the current president. Obviously compliance with eligibility requirements is of major importance and has enormous consequences were the president unqualified.
 
However whether or not this issue is ever resolved, it is also interesting to speculate about other bases a federal office holder may be removed from office.
 
Article I, Section 4 of the Constitution reads:
 
"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."
 
The phrase "high crimes and misdemeanors," imports a concept in English Common Law that was well-known to our Founding Fathers but is greatly either misunderstood or totally ignored today. "High crimes and misdemeanors" essentially means bad behavior.
 
C-Span.org has succinctly and clearly summarized the historical significance of including the term "high crimes and misdemeanors" in the Constitution:
 
’High crimes and misdemeanors’ entered the text of the Constitution due to George Mason and James Madison. Mason had argued that the reasons given for impeachment - treason and bribery - were not enough. He worried that other "great and dangerous offenses" might not be covered... so Mason then proposed ‘high crimes and misdemeanors,’ a phrase well-known in English common law. In 18th century language, a ‘misdemeanor’ meant ‘miss-demeanor,’ or bad behavior.
 
In other words, "high crimes and misdemeanors" does not refer to a criminal act as many believe because our founding fathers fully intended to allow for the removal of the President for actions which were... egregious... gross incompetence... gross negligence... outright distasteful... or, in the case of Barack Hussein Obama, actions which clearly show "malevolence toward this country and constitution, which is unabated."
 
The subject of impeachment was the subject of a great deal of discussion as the Constitution was debated as it was adopted from the English concept of this idea. In England impeachment was a device to remove from office someone who abused his office or misbehaved but who was protected by the Crown. (1) It was used in the early constitution proposals and the discussions concerned such questions as what body was to try impeachments and what grounds were to be stated as warranting impeachment. (2) The attention of the founders was for the most part fixed on the President and his removal, and the results of this narrow focus are reflected in some of the things left unresolved by the language of the Constitution.
 
During the debate in the First Congress on the ''removal'' controversy, some contended by that impeachment was the exclusive way to remove any officer of the Government from his post, (3). Madison said impeachment was to be used to reach a bad officer sheltered by the President and to remove him ''even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers'' (4). However the language of Sec. 4 does not leave any doubt that any officer in the executive branch is subject to the power.
 
Examining records of the discussion of what should qualify as grounds for removal of the president is very interesting. At first it was determined that the Executive should be removable by impeachment and conviction ''of mal-practice or neglect of duty'' and subsequently this was changed to ''Treason, or bribery'' (5). Mason objected to this limitation, saying that the term did not encompass all the conduct which should be grounds for removal; he therefore proposed to add ''or maladministration'' following ''bribery.'' Upon Madison's objection that ''[s]o vague a term will be equivalent to tenure during pleasure of the Senate,'' Mason suggested ''other high crimes and misdemeanors,'' which was adopted without further recorded debate. The phrase in the context of impeachments has an ancient English history, first turning up in the impeachment of the Earl of Suffolk in 1388 (6).
 
Treason is defined in the Constitution (7); however, "high crimes and misdemeanors, which, in England had comprehended conduct not constituting indictable offenses (8), is not. In debate prior to adoption of the phrase (9) and comments thereafter in the ratifying conventions (10) were to the effect that the [president] should be removable by impeachment for commissions or omissions in office which were not criminally cognizable. And in the First Congress' ''removal'' debate, Madison maintained that the wanton removal from office of meritorious officers would be an act of maladministration which would render the President subject to impeachment.
 
During the effort to impeach Justice Chase, the theory of extreme latitude was expressed by Senator Giles of Virginia during his impeachment trial... ''The power of impeachment was given without limitation to the House of Representatives; and the power of trying impeachments was given equally without limitation to the Senate. . . . A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him . . . [but] nothing more than a declaration of Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better.'' Though Chase was acquitted it had more to do with the political divisions in the Senate than to the merits of the arguments, it did establish that no indictable crime was necessary to impeach for "high crimes and misdemeanors."
 
This interpretation was used in the president Johnson impeachment.--President Johnson was impeached by the House on the ground that he had violated the ''Tenure of Office'' Act (11) by dismissing a Cabinet chief. The theory of the proponents of impeachment was succinctly put by Representative Butler, one of the managers of the impeachment in the Senate trial.
 
''An impeachable high crime or misdemeanor is one in its nature or consequences subversive of some fundamental or essential principle of government or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by the abuse of discretionary powers from improper motives or for an improper purpose.'' (12)
 
In conjunction with later impeachments of federal judges, several successful impeachments in this Century support the idea that the constitutional requirement of ''good behavior'' and ''high crimes and misdemeanors'' may conjoin to allow the removal of judges who have engaged in seriously questionable conduct, although no specific criminal statute may have been violated. For example, both Judge Archibald and Judge Ritter were convicted on articles of impeachment that charged questionable conduct that did not amount to indictable offenses (13).
 
When a president or other federal officer acts contrary to the constitution, it is appropriate to consider all requirements of the constitution with which that person must comply. Thus, for example, not only is an office holder removable for treason, or other criminal acts, such person must also avoid "high crimes and misdemeanors" as has been historically defined and applied in the impeachment of others.
 
Query; does lying to the American people, acting unconstitutionally, usurping powers accorded by the constitution to other branches of government or denouncing the Judeo-Christian heritage of our country amount to a "high crime and misdemeanor?"
 
Why deny the Judeo Christian heritage of the United States? Surely anyone familiar with American history knows that our personal liberties flow directly from our Judeo Christian heritage... and that there is no surer way to destroy our republic than to deny that heritage.
 
There is no doubt that America was founded on Judeo Christian heritage.
 
President Thomas Jefferson: "God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?"
 
President Andrew Jackson called the Bible; "the Rock upon which our republic rests."
 
President John Adams said; "We have no government armed with power capable of contending with human passions unbridled by morality and religion."
 
Patrick Henry said, "It is when a people forget God, that tyrants forge their chains."
 
George Washington, in his Farewell Address said; "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports."
 
Alexis de Tocqueville, in Democracy in America, wrote extensively on the relationship between the Christian religion and liberty in America: "America is great because she is good. If America ceases to be good, America will cease to be great."
 
It is clear to patriots that every jab at the Judeo Christian heritage of this great nation is a blow to the very foundation of our nation and strikes at our freedom and liberty.
 
Article I, Section 4 of the Constitution makes clear:
 
"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."
 
The American people, and Congress can decide if actions by anyone encompassed by the Constitution rises beyond the level of "bad behavior"; if so, our Founding Fathers left us a remedy to remove someone for such behavior in office.
 
Bad behavior in office to the detriment of our country is the disease; Article I, Section 4 of the Constitution, is the cure.
 
FamilySecurityMatters.org Contributing Editor Vincent Gioia is a retired patent attorney living in Palm Desert, California. His blogs at www.vincentgioia.com and he may be contacted at gioia@gte.net.
 
Footnotes
 
(1) W. Holdsworth, History of English Law (London: 7th ed. 1956), 379-385; Clarke, The Origin of Impeachment, in Oxford Essays in Medieval History, Presented to Herbert Salter (Oxford: 1934), 164.
 
(2) Simpson, Federal Impeachments, 64 U. Pa. L. Rev. 651, 653-667 (1916).
 
(3)Annals of Cong. 457, 473, 536 (1789), Id. 375, 480, 496-497, 562, Id., 372.
 
(4) W. Willoughby, op. cit., n.294, 1448. [This point was established by a vote of the Senate holding a plea to this effect good in the impeachment trial of Senator William Blount in 1797. 3 A. Hinds' Precedents of the House of Representatives of the United States (Washington: 1907), 2294-2318; F. Wharton, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia: 1849), 200-321].
 
(5) M. Farrand, op. cit., n.4, 88, 90, 230, 172, 186, 499.550.
 
(6) T. Howell, State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Present Times (London: 1809), 90, 91; A. Simpson, Treatise on Federal Impeachments (Philadelphia: 1916), 86.
 
(7) Article III, 3. [The use of a technical term known in the common law would require resort to the common law for its meaning, United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (per Chief Justice Marshall); United States v. Jones, 26 Fed. CAS. 653, 655 (No. 15,494) (C.C.Pa. 1813) (per Justice Washington), leaving aside the issue of the cognoscibility of common law crimes in federal courts. See Act of April 30, 1790, Sec. 21, 1 Stat. 117.]
 
(8) Berger, Impeachment for ''High Crimes and Misdemeanors,'' 44 S. Calif. L. Rev. 395, 400-415 (1971).
 
(9) See id., 64-69, and 550-551.
 
(10) E.g., 3 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 341, 498, 500, 528 (Madison); 4 id., 276, 281 (C. C. Pinckney: Rutledge): 3 id., 516 (Corbin): 4 id., 263 (Pendleton). Cf. The Federalist, No. 65 (J. Cooke ed., 1961), 439-445 (Hamilton).
 
(11) Trial of Andrew Johnson, President of the United States on Impeachment (Washington: 1868), 88, 147. (12) Id., 409.
 
(12) Act of March 2, 1867, 14 Stat. 430.
 
(13) Broek, Partisan Politics and Federal Judgeship Impeachments since 1903, 23 Minn. L. Rev. 185 (1939). [Grimes, Hundred-Ton-Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges, 38 UCLA L. Rev. 1209, and 1229-1233 (1991).]
 

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