When the Framers gathered in Philadelphia in 1787, they did not invent the impeachment power from scratch. As Alexander Hamilton explained in Federalist No. 65, they looked to English history, which provided “the model from which the idea of this institution has been borrowed.”[1] The Framers were also influenced by “several of the State constitutions.”[2] And it was firmly established in both England and the early states that former officials were subject to impeachment for abuses in office. This was not a remotely controversial view. It was widely accepted. By vesting Congress with the power of “impeachment,” the Framers incorporated that history and meaning.
Looking to the unwritten British constitution confirms that former officials were subject to impeachment. In fact, “Parliament impeached only two men during the 18th century, both former officers.”[3] In 1725, former Lord Chancellor Macclesfield was impeached and convicted for acts of bribery committed during his tenure in office.[4] And while the Framers deliberated in Philadelphia in 1787, they knew that Warren Hastings faced charges in Parliament arising from abuses he had committed as the former Governor General of Bengal.[5] Those charges were championed by no less a figure than Edmund Burke, a great and founding figure of conservative political theory.
Early American states followed English practice in this respect. The impeachment of former officials was thus “known and accepted” under early state constitutions.[6] Five states—including Virginia and Pennsylvania—specifically authorized such impeachments.[7] In some states, only former officials (not current officials) could be impeached, which confirms the centrality of the
- ↑ The Federalist No. 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
- ↑ Id.
- ↑ Keith Whittington, Yes, the Senate Can Try Trump, Wall Street Journal (Jan. 22, 2021).
- ↑ See Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 26 (2001) (hereinafter, Former Officials).
- ↑ See id. at 26-27.
- ↑ Id. at 27.
- ↑ Id. at 29-31.
