The Founding Fathers Were Obsessed With Impeachment

(Bloomberg Opinion) -- It was weirdly cold in the room — that was the only thing everyone could agree on. Somehow, despite the bright lights and television cameras in the hearing room where I and three other law professors were testifying on the potential impeachment of President Donald Trump, the temperature remained somewhere between freezing and seriously freezing. It was so cold that the ranking Republican member of the House Judiciary Committee, Doug Collins, took valuable time out of his opening statement to complain about it.

The spectacle of four law professors trying to speak on behalf of the Constitution affected each viewer differently. I’ve never received so many warm, supportive messages before; it’s also been years since I’ve been the target of so much raw hate and contempt, much of it along exactly the lines you’d imagine. It’s also a fascinating experience to be subjected to truly bizarre and spontaneously invented conspiracy theories. But that’s a topic for another day.

What I found to be the toughest challenge that day was how to answer, under oath, this question, asked by Chairman Jerrold Nadler:

Professor Feldman, if Washington were here today, if he were joined by Madison and Hamilton and other framers, what do you believe they would say if presented with the evidence before us about President Trump’s conduct?

I don’t want to hold you in suspense. Here’s what I actually did answer:

I believe the framers would identify President Trump’s conduct as exactly the kind of abuse of office, high crime and misdemeanor that they were worried about and they would want the House of Representatives to take appropriate action and to impeach.

I meant it, and I believe it.

But how do I know what the framers would have thought? And why should anyone care?

Let’s take the second question first. Collins, for one, rejected the idea that the framers were relevant, saying: “I don’t think we have any idea what they would think, in all due respect, with this because of the different times, the different things that we’ve talked about.”

The whole premise of originalism — the judicial philosophy that we should follow what the framers would think about a contemporary situation — rests on the idea that we can figure out what they’d think. Without it, the enterprise can’t even get out of the gate.

There’s a certain amount of irony here: Collins has praised judges who are constitutional originalists. And non-originalist constitutional professors like me have often cautioned that the ultimate meaning of the Constitution can’t be decided purely based on what the framers might think if they were here today.

The reality, however, is that you don’t have to be an originalist to know what that the framers would believe about impeachment — and that it matters.

True, the framers are dead. But the process for figuring out what they would have thought is the same as it would be if they were alive and away from email for a few weeks. The framers had a very detailed conversation about the reasons for impeachment on July 20, 1787. Madison kept good notes. And in that conversation, you can see the framers’ worrying — obsessing, really — about the dangers of a president who abused the powers of his office.

They were worried about a president who sought personal gain in the form of bribes. (James Madison: The president “might pervert his administration into a scheme of peculation or oppression.”)

They were worried about the president who abused power to get himself reelected by corrupt means. (William Richardson Davie of North Carolina said that if the president could not be impeached, “he will spare no efforts or means whatever to get himself re-elected.”)

And they were worried about a president who betrayed the national interest. (Madison again: “He might betray his trust to foreign powers.”

These statements don’t tell you whether the framers would or wouldn’t have believed the evidence against Trump. They do tell you that if they believed it, they would consider his conduct impeachable as high crimes and misdemeanors.

The reason this matters isn’t that we must somehow be bound by the dead hand of the past, and always interpret the Constitution to mean what the framers intended. To the contrary. The reason the framers’ ideas matter here is that our living Constitution is the product of an ongoing, centuries-long process in which we try to give contemporary meaning to the laws, values, and ideals that the framers specified. That’s why it’s always a good idea to start a conversation about the meaning of the Constitution with what the framers had in mind — and how things have evolved since.

We know with certainty that the framers were deeply focused on the dangers of a too-powerful president. In contrast, we don’t know anything like as much about what the framers would have thought about issues where technology and morality have both evolved, such as abortion rights or gun rights.

We are, or we should be, still worried about a president who abuses his office to corrupt the electoral process, fulfilling framers’ worry that he would “spare no efforts or means whatever to get himself re-elected.” That’s why the framers’ views still matter.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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