One very clear indication of what was intended with regard to impeachment is provided in Federalist 64, one of the few numbers written by John Jay, who was to become the first Chief Justice of the United States. Jay is discussing the treaty power, and is responding, in particular, to critics of the Constitution who argued that the President and the Senate were given too much discretion in committing the new nation to treaties with other nations. Jay notes that the Presidential power of making treaties -- perhaps the most important foreign policy power which the President has discretion to exercise -- is important because it relates to "war, peace, and commerce," and that it should not be delegated "but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good." Jay goes on to explain that the means of picking the President -- indirectly through the electoral college -- is calculated so that the President will be a person noted for integrity, virtue, and probity, and that the original indirect means of selecting Senators -- through the state legislatures -- was to assure the same for the Senators.⁽⁸⁾

Jay makes plain that when a President fails to live up to the requirement of trust, honor, and virtue that is necessary to meet his treaty-making and other executive responsibilities -- if, in short, he is not an honorable or virtuous person who will perform his duties in the interest of the people -- impeachment is available to remove him. When Jay addresses the requisite integrity for Presidents and Senators, he states:

With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken [through the indirect election of Senators and Presidents] care that they shall be men of talents, and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behaviour is amply afforded by the article on the subject of impeachments.⁽⁹⁾

Virtue, probity, and honor were so important in the executive, as Jay's remarks indicate, that it is no surprise that the framers assumed that the first President of the United States would have to be George Washington. He was the greatest national hero, he was given the lion's share of the responsibility for securing independence, and then as now was regarded as the father of his country. His reputation for integrity, virtue, and honor was unparalleled. George Washington, the national epitome of virtue and honor, ⁽¹⁰⁾ was, in short, precisely the kind of executive Federalist 64 contemplates.

Federalist 64 thus tells us about the requisite character of federal officials, and is persuasive authority for believing that when it becomes clear that the President has committed acts which raise grave doubts about his honesty, his virtue, or his honor, impeachment is available as a remedy. This is further supported by the text of the Constitution itself, where it provides in article I, section 3, that the punishments which are to be imposed following impeachment by the house and conviction by the Senate are "removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States."⁽¹¹⁾ The kind of a person who would be impeached was believed to be one without honor and who thus could not be trusted. The fear was that such a person, if allowed an office offering the opportunity to profit, would use his office for personal ends and not for the good of the people. Impeachment, then, is all about deciding whether a particular official can be trusted to act with disinterested virtue, or whether an official will put his own needs or desires above his Constitutional duties.

It is for this reason -- that impeachment is a remedy against those who would betray their oaths to uphold the Constitution and would instead seek personal advantage -- that the framers chose to describe, although not to limit impeachable offenses, by including and using as an analogy "Treason and Bribery." "Treason" is defined in the Constitution itself as "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort."⁽¹²⁾ The essence of Treason, then, is that it involves a betrayal of one's obligation to one's own people, by making war against them, or by adhering to their enemies. Similarly, "Bribery" involves a betrayal of virtue and a refusal to exercise disinterested judgment in the interests of the people in order to serve the interests of someone else -- someone who wrongly and corruptly buys what should only belong to the people. In both cases the wrongdoer, the traitor or the person bribed, turns from his duty and puts his own interests ahead of those who trusted in him.

This suggestion that impeachment, in essence, is about a fundamental betrayal of trust, finds further support in the limited records that we have of the Constitutional Convention. On August 20, 1787, the Committee of Detail presented a proposal that would have made federal officers "liable to impeachment and removal from office for neglect of duty, malversation,⁽¹³⁾ or corruption."⁽¹⁴⁾ Somewhat later, however, on September 8, 1787 the Convention had before it a revised text that would have limited impeachment only to those cases involving "Treason & bribery." George Mason, of Virginia, thought this too limiting, and argued:

Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. [Warren] Hastings [the administrator of the East India Company and Governor-General of Bengal whom Edmund Burke led an effort to impeach for corruption] is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined -- As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments.⁽¹⁵⁾

Mason then moved to add after the word "bribery" the words "or maladministration." James Madison, one of the authors of The Federalist, and the man most commonly described at the "Father" of the Constitution, objected on the grounds that "maladministration" was too elusive. "So vague a term," he said, "will be equivalent to a tenure during pleasure of the Senate." To meet Madison's objection, and to make clearer that more than Senatorial whim was required for removal, Mason "withdrew 'maladministration' and substitute[d] 'other high crimes & misdemeanors,'" which was then accepted and became the Constitutional text we now seek to interpret.⁽¹⁶⁾

The colloquy between Mason and Madison is the only evidence we have from the debates at the 1787 Constitutional convention at Philadelphia, but it appears to suggest that more than mere maladministration, something approaching "great and dangerous offences," or an "[a]ttempt to subvert the Constitution" is required. Those who emphasize the awful consequences of impeachment, and the propriety of its use only for offenses that strike at the heart of American government can find support in Mason's words. But it must be understood what Mason and the other framers believed the needs of the state were, and what American government was all about. The essence of the new republic was that ours was to be a "government of laws and not of men," and that our laws and our legal doctrines were not to be tossed aside at whim for personal or partisan political purposes.⁽¹⁷⁾ For a President to be impeached, then, he must have committed some grave offence which is contrary to his oath to uphold the Constitution and laws of his country; he must have put his interests above the Constitution and the laws.

The distinction between mere "maladministration" and the betrayals of the Constitution with which impeachment was supposed to be concerned is also the subject of some rumination by another one of the Federalist's authors, Alexander Hamilton. In Federalist 79, Hamilton warns against using "inability," a term similar in meaning to "maladministration,"⁽¹⁸⁾ as a trigger for impeachment because "[a]n attempt to fix the boundary between the regions of ability and inability would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good."⁽¹⁹⁾ Impeachment, then, is a remedy for, and is not to be used as a tool of, personal or party ambition or enmity; impeachment is to be used to further "justice" and "the public good." Again, the essence of what's impeachable appears to be an unjust turning against public duties, an attempt to work an "injustice" and to betray one's duties to the public -- in short, to act contrary to one's oath to uphold the Constitution and laws of the Country.⁽²⁰⁾

The words "high crimes or misdemeanors" similarly suggest the anti-public oath-abjuring characteristics of what ought to constitute an impeachable offense. A "high" crime or misdemeanor is distinguishable from run of the mill crimes or misdemeanors in that it requires proof of an "injury to the commonwealth -- that is, to the state and to its constitution."⁽²¹⁾ An impeachable act, then, must be one that involves injury to the state, one that, as Mason suggested, subverts the Constitution. In the United States, of course, acts which consciously seek to undermine the nature of our rule by settled laws and processes are just such an injury to the state, such a subversion of our Constitution.

There are many ways such an undermining or subversion can take place. Accordingly, the framers believed that "high Crimes and Misdemeanors," if the impeachment provisions were to serve their purposes of keeping the executive and judiciary faithful to their Constitutional trust, could be broadly construed. Thus, Alexander Hamilton, in Federalist 65, where he discusses the judicial function of the Senate in trials of impeachments, broadly defines impeachment as a remedy generally available to correct wrongdoing. "The subjects of [the Senate's impeachment] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."⁽²²⁾ Hamilton, as did some of the other framers noted above, supplied some limitation on the impeachment power when he wrote that impeachable offenses "relate chiefly to injuries done immediately to the society itself."⁽²³⁾ Hamilton even observed -- presciently, given recent events in our case -- that when an impeachment proceeding was underway it

will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.⁽²⁴⁾

Hamilton believed that the Senate, supposedly further removed from the people through election by state legislatures and not by the people themselves, would be better able to put raw partisan political concerns aside, and make objective determinations on the guilt or innocence of one impeached. Since the Senate is no longer thus insulated from popular election, it is doubly important that both the House and the Senate try to approach the impeachment of the President in as objective a matter as possible. Given the breadth of the possible definition of "high Crimes and Misdemeanors," and, as Hamilton noted, the inevitable involvement of partisan politics, it is no wonder that there is division in this body and in the nation generally about what constitutes an impeachable offense. If we are able to set aside partisan politics, however, we can fix with some certainty the nature of the acts against the state and the Constitution which the framers would have regarded as coming within the phrase "high Crimes and Misdemeanors."

At the time the Framers were inserting the phrase "high Crimes and Misdemeanors" into the Constitution they had a wealth of English experience with those words to draw on,⁽²⁵⁾ and it appears clear that the framers intended and understood that the phrase "high crimes and misdemeanors" was to be interpreted according to the meaning it was given by English Common Law.⁽²⁶⁾ As Justice Joseph Story was later to write, "The only safe guide in such cases must be the common law, which is the guardian at once of private rights and public liberties."⁽²⁷⁾

Raoul Berger, in his book on impeachments, has given us a handy summary of some of the impeachment proceedings brought in England before the framing of our Constitution, proceedings described as involving all or part of the phrase "high Crimes and Misdemeanors." These included the proceedings brought against the Earl of Suffolk (1386), who "applied appropriated funds to purposes other than those specified;" the Duke of Suffolk (1450), who "procured offices for persons who were unfit and unworthy of them; [and who] delayed justice by stopping writs of appeal (private criminal prosecutions) for the deaths of complainants' husbands;" Attorney General Yelverton (1621), who "committed persons for refusal to enter into bonds before he had authority so to require; [and who also was guilty of] commencing but not prosecuting suits;" Lord Treasurer Middlesex (1624) who "allowed the office of Ordinance to go unrepaired though money was appropriated for that purpose [and who] allowed contracts for greatly needed powder to lapse for want of payment;" the Duke of Buckingham (1626) who "though young and inexperienced, procured offices for himself, thereby blocking the deserving; [who] neglected as great admiral to safeguard the seas; [and who] procured titles of honor to his mother, brothers, kindred;" Justice Berkley who "reviled and threatened the grand jury for presenting the removal of the communion table in All Saints Church; [and who] on the trial of an indictment, .... 'did much discourage complainants' counsel' and 'did overrule the cause for matter of law;'" Sir Richard Burney, Lord Mayor of London (1642), who "thwarted Parliament's order to store arms and ammunition in storehouses;" Viscount Mordaunt (1660), who "prevented Tayleur from standing for election as a burgess to serve in Parliament; [and who] caused his illegal arrest and detention;" Peter Pett, Commissioner of the Navy (1668) who was guilty of "negligent preparation for the Dutch invasion; [and who was responsible for] loss of a ship through neglect to bring it to mooring;" Chief Justice North "[who] assisted the Attorney General in drawing a proclamation to suppress petitions to the King to call a Parliament;" Chief Justice Scroggs (1680), who "discharged a grand jury before they made their presentment, thereby obstructing the presentment of many Papists; [and who] arbitrarily granted general warrants in blank;" Sir Edward Seymour (1680) who "applied appropriated funds to public purposes other than those specified;" and the Duke of Leeds (1695) who "as president of the Privy Council accepted 5,500 guineas from the East India Company to procure a charter of confirmation."⁽²⁸⁾

One way of characterizing all of this English experience is to say, as Joseph Story did, that "lord chancellors and judges and other magistrates have not only been impeached for bribery, and acting grossly contrary to the duties of their office, but for misleading their sovereign by unconstitutional opinions and for attempts to subvert the fundamental laws, and introduce arbitrary power."⁽²⁹⁾ The English cases lend further support to the notion derived from The Federalist and the text of the Constitution that impeachable offenses, "high Crimes and Misdemeanors" if you will, are acts that are inconsistent with the obligations and duties of office, are acts that involve putting personal or partisan concerns ahead of the interests of the people, and are acts which demonstrate the unfitness of the man to the office.

The Constitution, The Federalist, and the English common law experience give a very good general idea of what was meant by the Constitution's impeachment clauses. The meaning of "high Crimes and Misdemeanors" is thus capable of being understood as it was to the framers. It is important also to understand, however, that it is impossible to fix with certainty the complete enumeration of impeachable offenses, and it is impossible to escape the fact that the Constitution vests complete and unreviewable discretion with regard to impeachment and removal in Congress. Hamilton recognized this too:

This [the trial of impeachments] can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors [The House of Representatives] or in the construction of it by the judges [the Senate], as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have to doom to honor or to infamy the most confidential and the most distinguished characters of the community forbids the commitment of the trust to a small number of persons [and so it is placed in the hands of the entire Senate].⁽³⁰⁾

All of this and more, of course, has led earlier students of impeachment to believe that the phrase "high Crimes and Misdemeanors" does not necessarily encompass only criminal acts, but is a general term to refer to any kind of misuse of office that the Congress finds intolerable.⁽³¹⁾ Indeed, Gerald Ford's famous suggestion that "high Crimes and Misdemeanors" means anything the House of Representatives wants it to mean,⁽³²⁾ reflects the essential notion that the Constitution confers broad discretion on this House to make up its own mind about what kinds of conduct should lead to an impeachment proceeding.⁽³³⁾ It is more than a little presumptuous, then, for me or any other law professor -- or even 400 history professors -- to tell you how you should define "high Crimes and Misdemeanors" -- the oath you took to uphold the Constitution requires you to make that determination for yourselves, because the maintenance of the quality of the Executive which the Constitutional structure demands is part of your job.

It should be remembered, after all, that the Constitution, while it gives you discretion to determine whether a particular act or series of acts amounts to grounds for impeachment, requires you to move forward to impeach if you determine there are such acts. The language of Article II, Section 4 is imperative: "The President, Vice President, and all civil Officers of the United States, shall be removed from Office on impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors."⁽³⁴⁾ Once you determine that impeachable acts have been committed, you have no choice -- if the Constitution is to function as the framers' understood -- you must impeach, leaving the decision on removal to the Senate. In the exercise of your discretion, though, as we have seen, there are some guidelines from the text of the Constitution, from the contemporary exposition in The Federalist, in the debates over the impeachment provision, and in the examples from English practice: impeachable offenses are those that demonstrate a fundamental betrayal of a public trust; they are those that suggest the federal official under investigation has deliberately failed in his duty to uphold the Constitution and laws he was sworn to enforce; and they are those which suggest that the official does not possess the virtue or character necessary to maintain the faith of the people in his honesty and wisdom. This is a determination to be made by the peoples' representatives in the House of Congress closest to the people themselves -- you.

But perhaps it would not be untoward of me, in light of what I have tried to suggest about the Framers' understanding, briefly to consider the charges so far levied against President Clinton, and to express an opinion about whether they rise to the level the framers' thought necessary. As this is written, there are two formulations of these charges that have come before you. The first is from Judge Starr's report to you, and the other is by the Committee's chief investigator, David Schippers.

Judge Starr submitted what he believed to be "substantial and credible information" regarding eleven impeachable offenses. These were Judge Starr's allegations that 1) President Clinton repeatedly lied under oath regarding his sexual relationship with Monica Lewinsky, during the pre-trial discovery process in the civil case brought against him by Paula Jones, 2) President Clinton lied under oath to the grand jury about his sexual relationship with Monica Lewinsky, 3) President Clinton lied under oath during his civil deposition in the Jones case, when he stated that he could not recall being alone with Ms. Lewinsky and when he minimized the number of gifts they had exchanged, 4) President Clinton lied under oath during his civil deposition in the Jones case concerning conversations he had with Ms. Lewinsky about her involvement in the Jones case, 5) President Clinton endeavored to obstruct justice by attempting to conceal evidence of his relationship with Ms. Lewinsky from the judicial process, 6) President Clinton had an understanding with Ms. Lewinsky that they would lie under oath in the Jones case about their relationship, and President Clinton endeavored to obstruct justice by suggesting that Ms. Lewinsky file an affadavit which would prevent her deposition in the Jones case and which would enable him to avoid having his testimony contradicted by her and would enable him to avoid questions about her, 7) President Clinton endeavored to obstruct justice by helping Ms. Lewinsky obtain a job in New York at a time when she would have been a witness against him were she to tell the truth during the Jones case, 8) President Clinton lied under oath in describing his conversations with Vernon Jordan about Ms. Lewinsky, 9) President Clinton endeavored to obstruct justice by attempting to influence the testimony of Betty Currie, 10) President Clinton endeavored to obstruct justice by refusing to testify for seven months in a grand jury investigation while simultaneously lying to potential grand jury witnesses knowing that they would relay the falsehoods to the grand jury, and 11) President Clinton did not follow his constitutional duty to faithfully execute the laws when he misled the American people and Congress regarding the truth of his relationship with Ms. Lewinsky, when he allowed and encouraged his wife, his Cabinet, and his associates to perpetrate untruths regarding his relationship with Ms. Lewinsky, when he repeatedly and unlawfully invoked Executive Privilege to conceal evidence from the grand jury, when he refused to answer relevant questions before the grand jury, and when he misled the American people on August 17, 1998 by stating that his answers in the January civil deposition had been "legally accurate."⁽³⁵⁾

Your Chief Investigative Counsel, Mr. Schippers, based on the referral from Judge Starr, recast Judge Starr's evidence into fifteen purportedly impeachable offenses, including that 1)The President may have been part of a conspiracy with Monica Lewinsky and others to obstruct justice by providing false and misleading testimony under oath in a civil deposition and before a grand jury, withholding evidence, and tampering with prospective witnesses, 2) The President may have aided, abetted, counseled, and procured Monica Lewinsky to file and caused to be filed a false affidavit in the case of Jones v. Clinton, et. al., 3) The President may have aided, abetted, counseled, and procured Monica Lewinsky to obstruct justice by filing a false affidavit 4) The President may have engaged in misprision of felonies by taking affirmative steps to conceal Monica Lewinsky's felonies in connection with her submission of a false affidavit, 5) The President may have testified falsely under oath in his deposition in Jones v. Clinton regarding his relationship with Ms. Lewinsky, 6) The President may have given false testimony under oath before the federal grand jury on August 17, 1998, regarding his relationship with Ms. Lewinsky, 7) The President may have given false testimony under oath in his deposition in Jones v. Clinton regarding his statement that he could not recall being alone with Ms. Lewinsky and minimizing the number of gifts they had exchanged, 8) The President may have testified falsely in his deposition concerning conversations with Ms. Lewinsky about her involvement in the Jones case, 9) The President may have endeavored to obstruct justice by engaging in a pattern of activity calculated to conceal evidence from the judicial proceedings in Jones v. Clinton regarding his relationship with Monica Lewinsky, 10) The President may have endeavored to obstruct justice in Jones v. Clinton by agreeing with Ms. Lewinsky on a cover story, by causing a false affidavit to be filed by her, and by giving false and misleading testimony in his deposition, 11) The President may have endeavored to obstruct justice by helping Ms. Lewinsky obtain a job in New York at a time when she would have given evidence adverse to Mr. Clinton if she had told the truth in the Jones case, 12) The President may have testified falsely under oath in his deposition in Jones v. Clinton concerning his conversations with Vernon Jordan, 13) The President may have endeavored to obstruct justice and engage in witness tampering in attempting to coach and influence the testimony of Betty Currie before the grand jury, 14) The President may have engaged in witness tampering by coaching prospective grand jury witnesses and by telling them false accounts intending that the witnesses would repeat these before the grand jury, and 15) The President may have given false testimony under oath before the federal grand jury on August 17, 1998.⁽³⁶⁾

In either version, if true, these allegations show a pattern of conduct, extending over many months, on the part of the President, of deception, of lying under oath, of concealing evidence, of tampering with witnesses, and, in general, of obstructing justice by seeking to prevent the proper functioning of the courts, the grand jury, and the investigation of the Office of Independent Counsel. These offenses, if true, would undoubtedly amount to criminal interference with the legal process, but more to the point, they would demonstrate that the President had failed to live up to the requirements of honesty, virtue, and honor which the framers of the Constitution and the authors of the Federalist believed were essential for the Presidency. These offenses, if true, would bear a clear resemblance to many of the English precedents of impeachment for interfering with orderly processes of law, for tampering with the grand jury, and for seeking to use one's office for personal rather than public ends. These offenses, if true, would show that President Clinton engaged in a pattern of conduct which involved injury to the state and a betrayal of his Constitutional duties, because President Clinton would have thereby abused his office for personal gain and betrayed the ideal that ours is a government of laws and not of men.

If these allegations are true, than the President, instead of carrying out his oath of office to uphold the Constitution and faithfully to execute the laws, sought instead to subvert the judicial process specified in Article III, and, in order to protect himself from an adverse judgment in the Jones proceeding, sought to frustrate the laws designed to protect Ms. Jones and others like her. There are those who will argue before you that what the President did was simply to lie about his private sexual conduct. It should be remembered, however, that the essential allegation in Jones v. Clinton was that the President misused his governmental office (then as Governor of Arkansas) to attempt to procure sexual favors from Ms. Jones, and the allegations of impeachable offenses of the President now before you all flow from efforts of the President to suppress the truth in the course of Jones v. Clinton. It should also be remembered that Judge Starr expanded his investigation to include the facts regarding Ms. Lewinsky because Judge Starr believed that he could discern a pattern of interference with judicial proceedings on the part of the President which Judge Starr had before encountered in the Whitewater investigation.⁽³⁷⁾ Judge Starr's inquiry, after all, has never been about sex, it has been about abuse of power, obstruction of justice and other impeachable offenses.

There may still be further allegations of impeachable offenses from Judge Starr to come before you,⁽³⁸⁾ but looking only to the allegations made by Judge Starr and by your Chief Investigator detailed above, there is more than enough to require you to move forward now. These allegations concern conduct by the President in which he allegedly ignored his Constitutional obligations to take care that the laws be faithfully executed, and instead used his august position to frustrate enforcement of the law. If these allegations are true, then the President has acted in a manner against the interests of the state and he has sought to subvert the essence of our Constitutional government -- that ours is a government of laws and not of men. If these allegations are true, then the President has engaged in conduct that can only be described as corrupt, and corrupt in a manner that the impeachment process was expressly designed to correct.

For many people, apparently, the allegations against the President can still be characterized as "lying about sex," and it is difficult for many people to believe that such conduct is anything but a private matter, far removed from Constitutional procedures or requirements. The President is accused of much more than "lying about sex," of course, as Judge Starr and Mr. Schippers have made plain. It is appropriate to note in passing, however, that our legal tradition has never made any distinction about the content of matters that might involve perjury, obstruction of justice, or tampering with witnesses. No person and least of all no President, who is sworn faithfully to execute all the laws, can pick and choose over which matters he will be truthful and which he will not, particularly when he is under oath.

An oath, and the virtue of one swearing to it, perhaps lightly regarded by many today, were not so lightly regarded at the time of the Constitution's framing. Our best evidence of this is George Washington's statements in his famous "Farewell Address." The "Farewell Address" is the first President's "one outstanding piece of writing," and is regarded as comparable in importance to Thomas Jefferson's Declaration of Independence, Alexander Hamilton's financial plan, or James Madison's journal of the proceedings of the Constitutional Convention."⁽³⁹⁾ Like the Declaration, Hamilton's ideas about the importance of Commerce and Manufacturing, or the Constitutional Convention, Washington's Farewell Address offers a valuable and authentic glimpse into what the framers considered vital for the new Republic they were founding. In that Farewell Address, in one of its most important passages, the man whom the framers designated as their First President, asked "[W]here is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice?" Somewhat later in the address Washington added:

It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabrick?"⁽⁴⁰⁾

Washington, the Platonic Form of an American President, believed that the oath taken in court was a fundamental security for all that was held dear in American Society. He believed that those who took their oaths in vain were eroding the foundation of American government, and that they had lost the virtue which he believed essential to sustain freedom and popular sovereignty. Even if all President Clinton had done were to lie under oath in a judicial proceeding, the first President would have believed that President Clinton was engaged in an effort to "shake the foundation of the fabrick" of our Constitutional scheme. It is clear, based on this, that George Washington would have recommended President Clinton's impeachment, and this would likely have been the view of Madison, Hamilton, Jefferson, and Mason as well.

The allegations against President Clinton amount to much more than lying under oath, however. I think that the framers' view of the Constitution means that if these allegations are true, then the oath that you took to support the Constitution⁽⁴¹⁾ requires you to impeach the President.

1. U.S. Constitution, Art. II, Section 4.

2. On this matter see generally the now-classic account in Gordon S. Wood, Creation of the American Republic 1776-1787 (1969).

3. Cf. U.S. Constitution, Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

4. James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (Penguin Books edition, Isaac Kramnick, ed., 1987). I have also used, in the preparation of this testimony, a piece soon to be published in volume 8 ( winter 1998-99) of the journal Law and Courts, written by Scott D. Gerber, "Would the Framers Impeach President Clinton?" Mr. Gerber was kind enough to share with me a pre-publication draft, and I am indebted to him for some of the analysis made here, particularly that regarding the Federalist and the debates in Philadelphia. I also wish to thank ArLynn Leiber Presser, Elisabeth Catherine Presser, and Douglas W. Kmiec for helpful comments on drafts of this tesimony.