A small army of legal scholars is loose upon the land, exploring the origins of the phrase "high crimes and misdemeanors," which sounds so odd to our ears because it links large offenses, such as murder or treason, with trivial miscues, such as jaywalking.
The words sounded different in September 1778, when George Mason inserted them into a late draft of the Constitution. The phrase had its origins in English common law, where a misdemeanor did not mean a minor crime but a crime against the community, as opposed to a crime against people or property.It implied that the lord of a manor was accountable to the collective over which he reigned. James Madison indicated late in his life that this was the meaning he and the other Founders intended, because impeachment was a mechanism for "defending the community against the incapacity, negligence or perfidy of the chief magistrate."
If the term "misdemeanors" is like an accordion that can be expanded or compressed to play different political music, the most expansive definition makes President Clinton vulnerable.
The Starr report, however, does not mention his main offense, the deception he committed in January when he told a national television audience that he had had no sexual relationship with Monica Lewinsky. But this lie is not so much an indictable offense as it is grounds for a precipitous fall from grace in posterity's judgment.
Those members of the House Judiciary Committee inclined to impeach Clinton can cite several members of the Revolutionary generation as witnesses for the prosecution. Sam Adams, Patrick Henry, Mason and Mercy Otis Warren would surely testify, since they all regarded a strong president as incompatible with "the principles of '76."
Mason wanted a single seven-year term to ensure that all presidents would "return to that mass from which they were first taken." He feared that re-elected presidents would become lifetime incumbents like European kings.
From this perspective the impeachment clause was crucial, for it guaranteed that presidents, unlike kings, were inherently disposable and subject to removal - not just every four years at election time but whenever they lost the trust of the public.
On the other hand, Judiciary Committee members against impeachment could call a veritable murderers row of witnesses from the founding generation, all of whom were not disposed to make the presidency vulnerable to congressional removal except on the rarest occasions: John Adams, Alexander Hamilton, James Madison, John Marshall and George Washington. None of these men feared a monarchical presidency.
Even Thomas Jefferson, who distrusted a strong central government, worried that easy impeachments might be used to overrule the will of the electorate. In addition, both he and Hamilton had personal experience with charges of sexual impropriety and so might have sympathized with Clinton in his current predicament.
There are, then, two interpretive traditions with legitimate claims to historical correctness. The predominant tendency has been toward the more restrictive interpretation of "high crimes and misdemeanors." Only once did the House vote impeachment. That was in 1868, when it brought articles against President Andrew Johnson.
The verdict of history, or at least of most historians, is that this was an unfortunate aberration. In the current case, my own judgment is that a poll of the Founders would produce a clear majority for the conclusion that Clinton has committed censurable sins but not impeachable offenses.