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What History Says about "High Crimes and Misdemeanors"

Jeff Myhre

Posted on March 8, 2019 11:20

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If you want to know what the Constitution says about impeachment (or anything else) being a lawyer is less useful than knowing the history of the English language. What a word means in the 21st century sometimes isn't the same as what it meant in the 18th.

The lawyers have run the discussion about impeaching the president (or not) for too damned long. By definition, they understand the law. What they all too often fail to understand is language, and this is particularly true of the class of constitutional lawyer known as “strict constructionist.” By their own definition, they look only at the literal meanings of the words in the US Constitution. But the idea that language is immutable is ridiculous. If language never changes, where did Spanish, French, Italian, Romanian and Romansh come from?

Historians, especially those who study the history of languages, have a special insight when it comes to understanding a document written more than 200 years ago. Quite simply, some words do not mean today what they meant when the American experiment was just beginning.

Consider the word “nice.” We use it all the time. “He's a nice guy.” “It's nice outside.” “Be nice to your sister.” However, the word is derived from the Latin “nescire,” meaning “to not know.” The Latin “nescius” meant “ignorant” and in Middle English had become “nice” which meant “stupid.” Yet, it evolved in this way: "timid" (pre-1300); to "fussy, fastidious" (late 14c.); to "dainty, delicate" (c. 1400); to "precise, careful" (1500s, preserved in such terms as a nice distinction and nice and early); to "agreeable, delightful" (1769); to "kind, thoughtful" (1830).

The impeachment clause says an officer of the US can be impeached for “treason, bribery, and other high crimes and misdemeanors.” The Constitution defines treason for us.

For the meaning of the other terms, though, we must rely on every day usage – every day 1787.

Fortunately for us, the first dictionary of the English language, courtesy of Samuel Johnson, was published in 1755. The sixth edition came out in 1785. Thomas Jefferson owned a fourth edition from 1775. In short, Dr. Johnson's work can be taken as the gold standard for determining the meanings of English words for the period in question.

Bribery is straightforward, “the crime of taking rewards for bad practices.”

Other high crimes is a catch-all term that refers to crimes as serious as treason and bribery. I believe it is related to the idea of medieval “high justice,” but regardless, a simple reading of the language means actions as criminally serious as treason and bribery.

Which brings us to the word “misdemeanor.” In the legalistic 21st century, that term means a crime of rather minor significance, falling between a felony (really serious) and infraction (slap on the wrist).

That is not what the Founders meant by a misdemeanor. Dr. Johnson informs us that the word meant “ill behaviour.” That's it – not behaving the right way.

So, let's set aside the legalisms for a time. Let us consider impeachment for bad behavior, for paying off ex-girlfriends, for countless lies. We might lose a few presidents that way, but it might cause the others to behave better to the benefit of the Republic.

Jeff Myhre

Posted on March 8, 2019 11:20

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Source: ESPN

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