An idea that’s been getting a lot of play recently on the left is that Democrats are overthinking this whole high “crimes and misdemeanors” thing too much and it should be far easier to impeach President Trump than people are making it out to be. Some support for this curious argument shows up this week in The Atlantic in a piece by historian Mary Sarah Bilder. At issue is the set of notes left behind by James Madison, the Founder believed to be intimately involved in the final selection of that phrase (treason, bribery or other high crimes and misdemeanors) in the Constitution.
Bilder notes that a couple of other phrases, including just “treason or bribery” and, perhaps more importantly, “maladministration” were considered but the latter was ultimately rejected. This is important because if we allow ourselves to believe that the founders intended “mere poor governance” to be an impeachable offense, not only would Trump’s critics claim the absolute authority to give him the boot, but we’d probably be on roughly our 211th president by now.
And yet Bilder, who has spent years studying Madison’s notes, claims that the page from the manuscript where he recorded the conversation is “the oddest one” in the entire document. She also describes it as not being “a solid source.” Why? Here’s part of her explanation.
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.
So Bilder at least appears to suggest that Madison was either lying or perhaps going senile when he recorded all of his notes. Or, she seems to grudgingly admit, perhaps he recorded the conversation faithfully.
She goes on to note that there were actually two conversations about impeachment taking place during that period. One is the one on September 8 that Madison records, but the other was on July 20. In the earlier debate, the Founders debated whether to have impeachment at all, finally deciding to leave it in. But during the meetings in the September 8 timeframe, a committee reviewed a draft which read “for treason or bribery or other high crimes and misdemeanors against the State.” There were several alternatives suggested and voted upon, finally ending with what we have today.
But the author doesn’t stop there. She points to the fact that Madison had fallen ill during the month of September and perhaps his note-taking wasn’t quite up to par. Further, she examines the parchment Madison used for some of these notes and finds a watermark on one of the pages that doesn’t match the others. After that, the argument becomes dizzying, seeming to suggest a conspiracy theory that might end with Madison shooting JFK from the grassy knoll.
But in the end, we should ask Ms. Bilder why any of this matters. No matter how they ended up there, the convention finally settled on the language in the finished document. And neither “maladministration” nor “dereliction of duty” (another option that was voted on) made the final cut. Are we not supposed to hew to the actual language of the document, or should some tea stains on Madison’s notes give us a license to just wing it and interpret the Founders’ intentions however we like?
We are perhaps given a clue as to her real beliefs back near the top of the article when she wrote the following:
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.
Yes. In other words, why sit around worrying about what some musty old document from 1787 says? It would be far better to rely on various interpretations of it that have cropped up over the subsequent 230ish years. Thanks, Ms. Bilder, but I think we’ll stick with the original text. It tends to stay the same over time, with the exception of appropriately passed and approved amendments.