You're Fired: The Original Meaning of Presidential Impeachment

73 Pages Posted: 20 Oct 2020 Last revised: 3 Dec 2020

See all articles by James Cleith Phillips

James Cleith Phillips

Chapman University, The Dale E. Fowler School of Law

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace

Date Written: September 15, 2020

Abstract

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of impeaching a President are again salient. Unlike other constitutional provisions, because the Supreme Court has deemed impeachment the ultimate political question, neither much historical practice nor case law informs our understanding of the Impeachment Clause. Thus, the original meaning takes on great weight. Further, previous scholarships has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. What is more, this article becomes the first in American legal scholarship to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law in that not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established term of art in Britain. The article then applies these findings to the impeachment of President Trump, providing an in-depth analysis of the proceeding in light of the Constitution’s original meaning, critiquing arguments made on both sides.

Keywords: impeach, Trump, originalism, corpus linguistics

Suggested Citation

Phillips, James Cleith and Yoo, John Choon, You're Fired: The Original Meaning of Presidential Impeachment (September 15, 2020). Southern California Law Review, Vol. 94, No. 4, 2021, Available at SSRN: https://ssrn.com/abstract=3693312

James Cleith Phillips (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

HOME PAGE: http://https://www.chapman.edu/our-faculty/james-phillips

John Choon Yoo

University of California at Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States
510-600-3217 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1789 Massachusetts Ave., N.W.
Washington, DC 20036
United States

Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

HOME PAGE: http://https://www.hoover.org/profiles/john-yoo

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