Since scholarly debate is encouraged on AEI’s website, I’d like to suggest an alternative view for interpreting “high crimes and misdemeanors” that was not mentioned in the excellent and scholarly piece by Joseph Bessette and Gary Schmitt last week. Most of the Constitution’s drafters were lawyers, and they would have been familiar with the canon of statutory construction known as “ejusdem generis.”

The canon means
that when a number of items are mentioned together in a list, some of which
have a clear meaning while others do not, the ambiguous items should be read as
having the same general qualities as those with a clear meaning.

Thus, when the Constitution uses the terms “bribery, treason or other high crimes and misdemeanors,” the lawyers among the Constitution’s drafters — particularly Madison and Hamilton — would have understood that, according to the canon, the ambiguous phrase “high crimes and misdemeanors” should be interpreted as bad acts having the same gravity as bribery and treason.  

This would be a much more restrictive interpretation, of course, and consistent with the reason that “maladministration” and other broad terms were rejected by the drafters. They were searching for grounds that would make impeachments rare, and not a regular means for punishing political differences.

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