In December 2019, the House of Representative’s Committee on the Judiciary held hearings on the possible impeachment of President Donald J. Trump. The committee members had to decide whether he had committed any crimes that the Constitution outlaws and that would cause him to be removed from office. These crimes are “Treason, Bribery, or other high Crimes and Misdemeanors.” Four law professors gave their opinions.
One of the professors, Noah Feldman, explained that, in 1787, the Framers of the Constitution understood “high crimes and misdemeanors” to mean that a high-level official, such as the president, had abused the trust the public placed in him. He might do that by bribing someone, by allowing a foreign government to influence him, or by doing other acts that would benefit him personally but hurt the country. Feldman didn’t stop in 1787, though. He dug back to an English law passed in 1384 that defined bribery as any “robe, fee, pension, gift [or] reward…except reward of meat or drink, which shall be of no great value.” That is, the Framers believed that officials couldn’t accept anything other than their salary.
Another professor, however, Jonathan Turley, disagreed with Feldman’s history lesson. Turley said, “Divining the intent of the Framers often borders on necromancy, with about the same level of reliability.” In other words, without consulting a time-traveling witch, we can’t possibly know what the Framers meant by “Treason, Bribery, or other high Crimes and Misdemeanors.” Furthermore, he went on, their definition was different from England’s, and it has continued to change over time in America.
The dispute between these two professors (who also disagreed about whether Trump should be impeached) focused on whether we should try to figure out what the writers of the Constitution and its later amendments meant when we’re deciding if an act is constitutional. This issue is called “originalism,” and people who believe that it’s important to know what was meant when the Constitution was written and amended are called “originalists.”
Other people argue that originalism is irrelevant to how we view and use the Constitution today. They believe in what is called the “living constitution.” In 1819, Supreme Court Chief Justice John Marshall made the case for this point of view by writing that the Constitution “must be adapted to the various crises of human affairs.”
We write about some of these crises in our book, Fault Lines in the Constitution. For instance, in “Part VII: Emergency! Emergency!”, which deals with whether the president can suspend our constitutional rights, we point out that Framers defined danger as being under attack in a war. Today, though, we know that emergencies can arise not only from cannons, but also from technological, medical, biological, and environmental threats. We give the example of a nurse who was forcibly quarantined after treating Ebola patients, even though she showed no signs of illness.
There’s another way to look at the debate between originalists and living constitutionalists. So far, we’ve looked at disagreements over what the Constitution means. The other way is to look at whether various parts of it remain a good idea. Most of Fault Lines in the Constitution addresses sections that are not debated because their meaning is clear, such as the fact that every state, ranging in size from Wyoming (fewer than six hundred thousand people) to California (nearly forty million), gets two senators, and that the Electoral College, not the voters, chooses the president.
Some people believe that questioning these aspects of the Constitution is disrespectful or disloyal. What was good enough for the Framers should be good enough for us. Others respond that even the Framers, including George Mason of Virginia, realized that they “could not be expected to make a faultless Government.” So, it should change over time.
Both of these viewpoints are relevant to discussions about impeachment. In regard to definitions, there is the question of whether “high crimes” means the same today as it did or might have in 1787. In regard to the wisdom of the Constitution, there is also the question of whether impeachment should remain the only way to remove a president from office. As we mention in Chapter 10, some countries, such as Germany and Japan, allow its legislature to remove the executive through a vote of no confidence.
What do you think? Should—and can—we understand the Framers’ intentions? Or, should we figure out what works today?