One of the great things about working with a preeminent constitutional scholar like Prof. Rob Natelson is the clarity he brings to issues beyond the Article V process.
Impeachment law is similar to Article V law in one important way: both rely on historical precedent. If you don't understand the history of the Convention of States process, you'll never understand an Article V Amendments Convention.
In the same way, as Prof. Natelson explained in a recent article, you'll never understand what the Constitution says about impeachment unless you understand English law going back centuries.
The lawyers who testified before Congress last week obviously haven't read their history. Check out an excerpt from Prof. Natelson's fantastic analysis:
Impeachment law isn’t for amateurs. It rests on English parliamentary history extending at least as far back as the 1300s. Furthermore, impeachment standards evolved over time. To understand the Constitution’s rules, we must know what the standards were when the Constitution was adopted. We can do so by consulting 18th-century parliamentary records and legal materials.
Here’s some of what they tell us:
- The term “high Crimes” means, approximately, “felonies.”
- The phrase “high … Misdemeanors” refers to what the founding generation called “breach of trust” and what modern lawyers call breach of fiduciary duty. Fiduciary duties are the legal obligations imposed upon those who manage the affairs of other people—bankers, corporate executives, accountants, guardians, and so forth. In broad outline, fiduciary law when the Constitution was adopted was similar to what it is today.
- In the 14th and 15th centuries, an official could be impeached because Parliament disagreed with his policy decisions. However, as several American Founders recognized, by the 18th century, this was no longer true. The official must have violated (in the words of several sources) “the known and established law.” This limited impeachment to serious crimes and fiduciary breaches.
- The trial in the upper house of the legislature was a judicial proceeding, not primarily a political one. As the 1782 edition of the popular Jacob’s Law Dictionary noted, “the same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.” The hearsay and impressionist evidence gathered by the House Intelligence Committee isn’t admissible.
The core of the case against Trump is that he used his political position to seek reelection assistance from a foreign government. Although there’s dark talk of crimes committed, the principal charge is fiduciary rather than criminal. In other words, a “high … Misdemeanor.”
Constitutional law isn't for the faint of heart, and that includes Article V. While the basic rules are clear, understanding the Convention of States process requires time, patience, and research.
Those who claim we don't know how a Convention of States will operate, for example, haven't taken the time to read beyond the text of Article V.
As Prof. Rob Natelson has discovered, there have been at least 37 "conventions of states" in our nation's history. We know how an Article V Convention of States will operate because we know what the Founders had in mind when they allowed the states to gather together to propose constitutional amendments.
The Convention of States Project has the facts -- along with the nation's leading constitutional experts -- on our side. If you have questions, we have answers. Check out some of the resources below:
- Answers to Frequently Asked Questions
- Can We Trust the Constitution? Answering the "Runaway Convention" Myth
- We Know the Rules, Congress Does Not Control a Convention of States
- What if Congress Refuses to Call an Article V Convention?
Ready to join the Convention of States team in your state? Sign the Convention of States Petition below!
