“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Most of us will recognize these words. This is the Preamble to the US Constitution. Not only does it set out the reasons for writing the document, but also, and far more importantly, it sets out the reasons for creating this nation. The United States was not created for the benefit of a few powerful men. The Founders were speaking for “we the People”, all of us. And they were creating a nation for the benefit of all.
The 229 years or so since its ratification have been spent trying to work out what that means. Who are The People? One might think that the answer is obvious, but history suggests otherwise. The Founders did not think that enslaved people, or women, or native people were part of The People, or at least not as fully as white men were.
Blood has been spilled over this question, and a terrible war was fought over it. But slowly a somewhat less than unanimous consensus has coalesced around an answer: “We, the People,” means exactly what it says. It means everyone, every citizen, every resident, every person living in the United States. To be sure the laws pursuant to the accomplishment of the Constitution’s purpose apply differently to different people. For example, 13-year-olds cannot vote in national elections. But the purposes of the Constitution apply equally to all. This is not a nation of the few; it is a nation of all.
When someone assumes the Presidency, that person is required to swear this oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” In other words, the President is required to carry out the purpose of Constitution, to “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Failure to do so constitutes a violation of the oath, a dereliction of duty.
One of the checks on the power of Federal officials is the power granted to Congress to remove officials from office. Article II, Section 4 of the Constitution states, “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.” To date several people have been impeached, but only eight have been removed from office, all of them judges. Impeachment and conviction is a complicated process, as it should be. Impeachment requires a majority vote in the House and removal from office requires a 2/3 majority in the Senate.
It is reasonably clear what counts as bribery and treason, the former being defined in law and the latter being defined in the Constitution itself. High crimes and misdemeanors are another story. These terms are not defined either in law or the Constitution. What did the Founders have in mind?
Wikipedia opens it article on the subject this way:
The charge of high crimes and misdemeanors covers allegations of misconduct
peculiar to officials, such as perjury of oath, abuse of authority, bribery,
intimidation, misuse of assets, failure to supervise, dereliction of duty, unbecoming
conduct, and refusal to obey a lawful order. Offenses by officials also include
ordinary crimes, but perhaps with different standards of proof and punishment
than for nonofficials, on the grounds that more is expected of officials by their
oaths of office.
It then notes this history of the term:
It was George Mason who offered up the term “high crimes and misdemeanors” as
one of the criteria to remove public officials who abuse their office. Their original
intentions can be gleaned by the phrases and words that were proposed before,
such as “high misdemeanor”, “maladministration”, or “other crime”. Edmund
Randolf said impeachment should be reserved for those who “misbehave”.
Cotesworth Pinkney said it should be reserved “…for those who behave amiss, or
betray their public trust.” As can be seen from all these references to “high crimes
and misdemeanors”, there is no concrete definition for the term, except to allow
people to remove an official from office for subjective reasons entirely.
It would appear that the Founders had in mind not only what we would call felonies, like perjury and income tax evasion, but also simple bad behavior. A look at the actual history of impeachment suggests that this is so. Impeachment charges have included such things as drunkenness on the bench, oppressive conduct, favoritism, improper business dealings, and sexual impropriety.
And so it is that the Founders, realizing human frailty being what it is, built a corrective measure into the structure of our government. In Part 2, I shall consider the contemporary relevance of all this.