“What did the Framers think about impeachment?” This question is everywhere these days, and the answer that follows often references James Madison’s rejection, on September 8, 1787, of the term maladministration in favor of “high crimes and misdemeanors.” The implication is, supposedly, that a president cannot be impeached for mere poor governance. It’s a good story, and one that can be found in accounts as far back as Watergate.
The source of this story is Madison’s notes, his record of the Constitutional Convention, which is today stored in a vault at the Library of Congress. But there’s just one problem: The specific sheet that is the only evidence of the famous impeachment conversation isn’t a solid source. I spent years studying Madison’s manuscript, and this sheet is the oddest one in it. It does not date from 1787, but from the early 1790s. Maybe the conversation happened in 1787 on the floor of the convention, as Madison tells it. Maybe it didn’t. But either way, the uncertainty is itself instructive, a reminder of our distance from the framing generation; historical evidence cannot absolve Americans now of their obligation to interpret the Constitution for today.
Of course, there are plenty of reasons one might not care about the details of the debate in 1787 in the first place. Although the Framers’ general concerns about corruption of power resonate, the working structure of the American constitutional system is far removed from that of 1787. An attempt to insist on the singular importance of the precise words used in 1787 seems fraught with conceptual problems, if not altogether imprudent. The practice and traditions of impeachment procedure over two centuries seem a far more constructive place to look for guidance.
But, for those tempted to return to the summer of 1787 as a touchstone, here is a caution about placing undue weight on Madison’s account of who said what on September 8, 1787.
September 8 is one of two points in Madison’s notes with significant discussion about impeachment. The first discussion occurred on July 20, as the convention debated the June report of the Committee of the Whole House. At this point, the convention had not yet agreed on how to elect a president, and indeed, was two drafts away from the final instrument. Madison heard and recorded a lengthy discussion about whether to have an impeachment power, and in the end, the power was retained. This discussion reads the way Madison’s May–July notes generally read: with debate over political principles, structural pragmatics, and historical and contemporary examples.