The Founders' Forgotten Definition of High Crimes and Misdemeanors

Every time the word impeachment enters the national conversation, you hear it: high crimes and misdemeanors. It is quoted, tweeted, and shouted on cable news as though it were a magic incantation. But for all the noise, almost no one pauses to ask what the Founders actually meant by it. That is the problem. We have turned a precise, constitutional term into a political football. And in doing so, we have lost the very thing the Founders were trying to protect: a stable, limited government anchored in the rule of law, not the passions of the moment. Let us do what Rush Limbaugh would have done: cut through the nonsense and go back to the source. Let us ask what high crimes and misdemeanors really means, and why your liberty depends on getting the answer right.

The Original Meaning: It Is Not What You Think

The Constitution says the President, Vice President, and all civil officers shall be removed on impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Treason and bribery are straightforward. But that third category, the one that gets stretched like taffy by every political operative, has a specific, limited meaning rooted in English common law. In British parliamentary practice, stretching back to the fourteenth century, high misdemeanors referred to political offenses against the state, abuses of the trust and power granted by the sovereign. They were not ordinary crimes. They were not policy disagreements. They were actions that undermined the government itself.

Alexander Hamilton made this crystal clear in Federalist Number 65. Impeachment, he wrote, is a political proceeding. It deals with the abuse or violation of some public trust. It is not a criminal trial. It is not a vote of no confidence. It is a safeguard against a chief magistrate who has betrayed his oath, not one who has merely disappointed his opponents. Justice Joseph Story, in his Commentaries on the Constitution, elaborated: impeachable offenses are political offenses growing out of the abuse or violation of some public duty. They involve the foulness of the injury done to the commonwealth. The injury is to the state itself, not merely to an individual or to the sensibilities of a political party.

What kinds of conduct qualify? Betrayal of national security. Corruption of the electoral process. Using official power to extort, subvert the rule of law, or enrich yourself at the public's expense. These are the offenses that strike at the heart of the republic. What does not qualify? Policy disagreements. Political unpopularity. A president being rude or crude. An executive branch official you simply do not like. These are the normal irritants of democratic politics, and the Founders gave us elections to sort them out.

A Lesson in Constitutional Design

The Founders were not naive about human nature. They knew that a majority could be just as tyrannical as a king. That is why they created a constitutional republic, not a pure democracy. They gave us separated powers, checks and balances, and a fixed, four-year term for the President precisely so that a sitting executive could not be removed by a passing political storm. James Madison warned in Federalist Number 10 about the violence of faction, the danger that a majority would oppress a minority. Impeachment was designed as a safety valve for serious abuse of power, not as a weapon for partisan removal. The bar was set high on purpose.

When you lower that bar to whatever 218 members of the House think is bad enough, you destroy the separation of powers. The legislative branch can remove an executive it disagrees with, which is exactly what the Founders did not want. They wanted a stable, independent executive who could do his job without looking over his shoulder every time he made a decision that displeased Congress. As Friedrich Hayek might have observed, this is the knowledge problem in action. No single faction, not even a majority in the House, has the dispersed knowledge or wisdom to judge every presidential action as impeachable. That is why we have checks and balances, not a parliamentary system where a no-confidence vote removes the prime minister.

And yet that is precisely what the modern political class has been drifting toward. Both parties have been guilty of it. When impeachment becomes a routine tool to settle political scores, the Constitution is weakened. And the person who ultimately pays the price is the ordinary citizen, who loses the right to have his vote count for a full term. The judgment required to apply the impeachment standard is not a matter of political expediency. It is a matter of constitutional fidelity. And that judgment must be exercised with restraint, not passion.

What Justice Scalia Would Say

Justice Antonin Scalia, the great originalist and textualist, would have had no patience for the modern habit of stretching high crimes and misdemeanors to fit any political grievance. He would have demanded we go back to the original public meaning of the phrase, the meaning it had when the Constitution was ratified. That original meaning, rooted in centuries of English impeachment practice, was clear: high crimes and misdemeanors referred to political crimes against the state, the kind that undermine the government itself.

Scalia wrote in his dissent in Morrison v. Olson that the Constitution created a vigorous, independent executive. Impeachment was not meant to be an easy tool. It was meant to be rare, serious, and reserved for conduct that actually attacks the structure of republican government. This does not mean a president cannot be impeached for a non-criminal act. Hamilton himself said that impeachable offenses are of a nature which may with peculiar propriety be denominated political. They need not be indictable at all. But they must involve an injury to the commonwealth, not merely a violation of a statute, and certainly not a policy dispute dressed up in legal language.

Thomas Sowell would add: judge a policy by its long-term consequences, not its short-term political appeal. The short-term appeal of a low bar is that you get to remove a president you dislike. The long-term consequence is that every future president becomes a hostage to the House majority. That is a recipe for instability, not freedom. The judgment required to apply the impeachment clause is an exercise in prudence and principle, not a test of partisan loyalty.

The Human Stakes: Why This Matters for You

Here is the bottom line. Your vote is supposed to matter. You elect a president for a fixed term. You do not get to recall him because the other party's representatives are angry. The Founders gave you that protection so that the government would be stable and the executive could actually do his job. If high crimes and misdemeanors becomes whatever the majority says it is, then we have effectively adopted a parliamentary system, but without the accountability that comes with a clear, up-or-down confidence vote. We have the worst of both worlds: an impeachable president can be removed by a partisan majority, but the voters never get a direct say in the matter. That is not self-government. That is rule by the House of Representatives.

The Founders intended impeachment to be a constitutional safety valve, not a partisan weapon. They gave us a standard that is both high and precise: the abuse of public trust in a way that injures the commonwealth. When we forget that standard, we do not just weaken a president. We weaken the entire structure of self-government. The practice of impeachment demands judgment, and that judgment must be grounded in the text and history of the Constitution, not in the fever of the moment.

So the next time you hear someone throw around the phrase high crimes and misdemeanors, ask the simple question: is this conduct that actually subverts the constitutional order? Or is it simply conduct that the speaker dislikes? The answer will tell you everything about whether we are still a republic of laws, or whether we have become a mob with a constitution. Liberty depends on getting this right.