Constitutional Law Expert Cass Sunstein Shares the Historical Origins of Impeachment


Amidst intense political debate over the case for removal of a president, Cass Sunstein, Robert Walmsley University Professor at Harvard, led an insightful lecture into historical roots of our impeachment process. Sunstein is the author of 48 books, including, most recently, Impeachment: A Citizen’s Guide. An expert in constitutional law, regulatory policy and economic analysis of law, he is noted as the most cited legal scholar in the U.S.

“We are now witnessing–for one of the few times in the history of this country–a sitting president of the United States being the subject of the formal impeachment inquiry by the United States’ House of Representatives,” said New York State Bar Association (NYSBA) President Hank Greenberg during his introductory remarks. “This imposes a special duty on the legal profession [to educate practicing and future lawyers, the public and lawmakers], and also provides an opportunity for an important public service.”

The TED Talk-style lecture, sponsored by NYSBA, Fordham Law School, and the New York State Writers Institute, gave the more than 200 attendees an opportunity to revisit past political conflicts as a means to better understand the current debate on impeachment. Sunstein explained to the packed room, what he called, the “untold story” of the British origins of impeachment in the 18th century.

“The first shots heard not around the world, but around the colonies were impeachment proceedings, in which the colonists started impeaching British officers for abusing their authority,” he said. “The idea was if the leaders acted in the way that egregiously abused their authority, then they have forfeited their right to lead.”

Sunstein later continued, saying, “If you read the Declaration of Independence … it’s articles of impeachment; that’s what it is. There’s no coincidence there because Jefferson wrote the Declaration against the background of the lost history of the republicanization and Americanization of impeachment.”

Through photos and storytelling, he created a vivid scene of colonists fighting the British redcoats, transporting the audience to a transformative time in order to shed light on the issues currently being debated. During a summer 1787 debate in Philadelphia at the Constitutional Convention over how to impeach a president, delegates Elbridge Gerry and George Mason moved to add maladministration with “treason and bribery” in the official proposal. However, the term “maladministration” was deemed too vague and was consequently replaced with “other high crimes and misdemeanors” instead as proper grounds for impeachment (see under Section 4 of Article II in the Constitution). Constitution framer James Madison later said that abuse of the pardon power was an impeachable offense, and political essayist James Iredell said “a president must certainly be impeachable for giving false information to the Senate.” There is also cause for impeachment when the U.S. president, vice president and all civil officers do something that’s an abuse or violation of public trust. However, it’s important to note that there’s nothing in the law, under the Constitution or in any statute that requires a formal vote for an impeachment inquiry. An impeachment “isn’t emphatically a criminal proceeding,” according to Sunstein, and there’s no cross examination going on in the House of Representatives.

After providing real life and fictional examples of impeachable and non-impeachable scenarios, Sunstein echoed the famous first three words of the Constitution’s Preamble “We the People” to reinforce the notion that “we” have a say in cases such as this.

“The impeachment clause is a symbol and a reminder of who is in charge and of where sovereignty resides,” he said prior to concluding his lecture. “More than any provision of our founding document, the impeachment clause against the particular background of the lost history announces that Americans are not subjects, but citizens.”


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