ArtI.S2.C5.1.2 The Power of Impeachment: Historical Background

Article I, Section 2, Clause 5:

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

The concept of impeachment embodied in the federal Constitution derives from English,1 colonial, and early state practice.2 During the struggle in England by Parliament to impose legal restraints on the Crown's powers, extending back at least to the 1600s, the House of Commons impeached and tried before the House of Lords ministers of the Crown and influential individuals—but not the Crown itself3—often deemed beyond the reach of the criminal courts.4 Parliament appeared to use impeachment as a tool to punish political offenses that damaged the state, although impeachment was not limited to government ministers.5 Impeachment applied to illegal acts, which included, among other things, significant abuses of a government office, misapplication of funds, neglect of duty, corruption, abridgement of parliamentary rights, and abuses of the public trust.6 Punishment for impeachment was not limited to removal from office, but could include a range of penalties upon conviction by the House of Lords, including imprisonment, fines, or even death.7

Inheriting this tradition, the American colonies adopted their own distinctive impeachment practices. The colonies largely limited impeachment to officeholders on the basis of misconduct committed in office, and the available punishment for impeachment was limited to removal from office.8 Likewise, many state constitutions adopted after the Declaration of Independence in 1776, but before the federal Constitution was ratified, incorporated impeachment provisions.9

This history thus informed the Framers' consideration and adoption of impeachment procedures at the Constitutional Convention.10 The English Parliamentary structure of a bicameral legislature dividing the power of impeachment between the lower house, which impeached individuals, and an upper house, which tried them, was replicated in the federal system with the power to impeach given to the House of Representatives and the power to try impeachments assigned to the Senate.11 Nonetheless, the Framers, guided by the impeachment experiences in the colonies, ultimately adopted an Americanized impeachment practice with a republican character, distinct from English practice. The Constitution established an impeachment mechanism exclusively geared towards holding public officials, including the President, accountable.12 This contrasted with the English practice of impeachment, which could extend to any individual save the Crown and was not limited to removal from office, but could result in a variety of punishments.13 Likewise, the Framers adopted a requirement of a two-thirds majority vote for conviction on impeachment charges, shielding the process from naked partisan control.14 This too differed with the English practice, which allowed conviction on a simple majority vote.15 Ultimately, the Framers' choices in crafting the Constitution's impeachment provisions provide Congress with a crucial check on the other branches of the federal government and inform the Constitution's separation of powers.16

Footnotes

  1.  Jump to essay-1For more on the historical background of the Constitution's impeachment provisions, see ArtIII.S1.2.1.2Good Behavior Clause: Historical Background; ArtI.S3.C6.1.2The Power to Try Impeachments: Historical Background; ArtII.S4.2.2Impeachable Offenses: Historical Background.
  2.  Jump to essay-2The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961); H. Comm. on the Judiciary, 93d Cong., Constitutional Grounds for Presidential Impeachment 4 (Comm. Print 1974) [hereinafter Constitutional Grounds].
  3.  Jump to essay-3Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635–1805 96–106 (1984).
  4.  Jump to essay-4Constitutional Grounds, supra note 2, at 4–7; Raoul Berger, Impeachment: The Constitutional Problems 59–66 (1973); Josh Chafetz, Congress's Constitution 49–50 (2017). But see Clayton Roberts, The Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 Yale L.J. 1419 (1975) (arguing that impeachment during the Stuart period only applied to violations of existing law).
  5.  Jump to essay-5Berger, supra note 4, at 59–66; Constitutional Grounds, supra note 2, at 4–5; 15 The American and English Encyclopedia of Law 1061, 1064 (David S. Garland & Lucius P. McGehee eds., 1900).
  6.  Jump to essay-6Hoffer & Hull, supra note 3, at 3–14; Constitutional Grounds, supra note 2, at 4–7; Compare Berger, supra note 4, at 67–68 (claiming that impeachment during the Stuart period was not limited to indictable conduct) with Clayton Roberts, The Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 Yale L.J. 1419 (1975) (arguing that impeachment during the Stuart period only applied to violations of existing law).
  7.  Jump to essay-7Berger, supra note 4, at 67.
  8.  Jump to essay-8Hoffer & Hull, supra note 3, at 67.
  9.  Jump to essay-9See Hoffer & Hull, supra note 3, at 57–95; Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 1–11 (2000); Chafetz, supra note 4, at 96–97. See, e.g., Penn Const. of 1776, sec. 22 (placing the power of impeachment with the commonwealth's unicameral legislature).
  10.  Jump to essay-10See discussion infra ArtI.S3.C6.1.2The Power to Try Impeachments: Historical Background and ArtII.S4.2.2Impeachable Offenses: Historical Background; Gerhardt, supra note 9, at 1–11.
  11.  Jump to essay-11See The Federalist Nos. 65, 81 (Alexander Hamilton) (Clinton Rossiter ed., 1961); Berger, supra note 4, at 59–66; U.S. Const. art. I, § 2, cl. 5 (conferring the House with the sole power of impeachment); id. art. I, § 3, cl. 6 (providing that the Senate has the exclusive power to try impeachments).
  12.  Jump to essay-12Hoffer & Hull, supra note 3, at 96–106. For a more thorough discussion of how the Framers envisioned the power of impeachment, see ArtI.S3.C6.1.2The Power to Try Impeachments: Historical Background and ArtII.S4.2.2Impeachable Offenses: Historical Background.
  13.  Jump to essay-13Hoffer & Hull, supra note 3, at 97.
  14.  Jump to essay-14Id.
  15.  Jump to essay-15Id.
  16.  Jump to essay-16See The Federalist No. 65 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (describing the power of impeachment as a bridle in the hands of the legislative body upon the executive servants of the government); id. No. 66 (noting that impeachment is an essential check in the hands of [Congress] upon the encroachments of the executive); id. No. 81 (explaining the importance of the impeachment power in checking the judicial branch).