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AP 252

IMPEACHMENT FOR "HIGH CRIMES
AND MISDEMEANORS"

RAOUL BERGER*

When Congressman Gerald R. Ford proposed in April, 1970, the impeachment
of Justice William O. Douglas and asserted that an "impeachable
offense" is what the House, with the concurrence of the
Senate, "considers [it] to be,"1 he laid claim to an illimitable power
that rings strangely in American ears. For illimitable power is alien to
a Constitution that was designed to fence all power about.2

Article II, § 4 of the Constitution provides that

[t]he President, Vice President and all civil officers of the United
States shall be removed from Office on Impeachment for, and Conviction
________________________________________
*Copyright © 1971 by Raoul Berger. The substance of this article will constitute
a portion of a forthcoming book, IMPEACHMENT.
1. "What. then, is an impeachable offense? The only honest answer is that an impeachable
offense is whatever a majority of the House of Representatives considers lt to
be at a given moment in history; conviction results from whatever offense or offenses
two-thirds of the other body considers to be sufficiently serious to require removal of the
accused from office . . . . there arc few fixed principles among the handful of precedents."
116 CONG. REC., H 3113-14 (daily ed. April 15, 1970).
2. James Iredell, "mastermind" of the North Carolina Ratification convention, 2
G. BANCROFT, HISTORY OF THE FORMATION OF THE CONSTITUTION OF THE UNITED STATES OF
AMERICA 348 (1882), and later a Justice of the Supreme Court, stated in an address published
in 1786 respecting the formation of the North Carolina constitution,
It was, of course, to be considered how to impose restrictions on the legislature
. . . (to] guard against the abuse of unlimited power, which was not to be trusted,
without the most imminent danger, to any man or body of men on earth. We
had not only been sickened and disgusted for years with the high and almost
impious language from Great Britain, of the omnipotent power of the British
Parliament, but had severely smarted under its effects. We . . . should have been
guilty of . . . the grossest folly, if in the same moment when we spurned at the
insolent depotism of Great Britain, we had established a despotic power among
ourselves.
2 G. McREE, LIFE AND CORRESPONDENCE OF JAMES IREDELL 145-46 (1857-1858). The
Colonists were unceasingly concerned with the aggressiveness of power, "its endlesaly propulsive
tendency to expand itself beyond legitimate boundaries." Its "necessary victim,"
they thought, "was liberty, or law, or right." B. BAILYN, THE IDEOLOGICAL ORIGINS OF
THE AMERICAN REVOLUTION 56-57 (1967) (hereinafter cited as BAILYN). Fear of the Congress
led to repeated assurances in the conventions that it was adequately "fenced" about.
R. BERGER, CONGRESS V. THE SUPREME COURT 8-15 (1969) (hereinafter cited as CONGRESS V.
COURT).
In the oft-quoted words of Jefferson: "173 despots would surely be as oppressive as
one . . . An election despotism was not the government we fought for." 3 JEFFERSON,
WRITINGS 222-24 (P. Ford ed. 1892). Madison quoted these remarks in THE FEDERALIST NO.
48, at 324 (Modern Lib. ed. 1937) (hereinafter cited as THE FEDERALIST). For similar expressions
by other Founders, see CONGRESS V. COURT, supra 8-15, 34-35.

395
Reproduced with permission from 44 Southern California
Law Review
395 (1971), by the Library of Congress,,
Congressional Research Service, on May 16, 1973 .

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