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Michael J. Gerhardt, The Heritage Guide to the Constitution: Fully Revised Second Edition Art. 1. (David F. Forte & Matthew Spalding eds., 2d ed. 2014).
Describing the Founding origins of the Trial of Impeachment Clause.
Discussing whether impeachment is the sole source of authority to remove an executive officer.
Discussing split among Framers on Senate trial of impeachment and noting that some felt it did not leave the Executive sufficiently independent of the Legislature.
Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (2009).
Discussing the original meaning of the Impeachment Clauses.
Arguing that impeachment and conviction are not the sole available means of removing officers.
Showing conflicting opinions at the Constitutional Convention as to whether the President ought to be able to remove an executive officer without the advice and consent of the Senate.
John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 Tex. L. Rev. 703, 750–756 (2002).
Arguing that “[i]mproving the [q]uality of [i]mpeachment [d]ecisionmaking” was the Framers’ intent in establishing a supermajoritarian requirement for Senate conviction – a supermajority rule, it “provided a method of infusing political judgment into impeachment while tempering political partisanship and preserving independence.”
Michael F. Williams, Rehnquist’s Renunciation? The Chief Justice’s Constitutional Duty to “Preside” Over Impeachment Trials, 104 W. Va. L. Rev. 457, 463 (2002).
Analyzing the phrase “and the Chief Justice shall preside” and arguing that the Framers’ intent in establishing institutional separation of powers underlies a meaning of “preside” that is active and important, not merely ceremonial.
Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis (2d ed. 2000).
Discussing text and history of the Impeachment Clauses.
Discussing Framers’ purpose in vesting Senate with trial of impeachment, and arguing that the Framers may have intended the more cool-headed house of the legislature try impeachments in the interest of reducing partisanship, raising the possibility that both the 12th Amendment (making the presidency a more popularly elected office) and the 17th Amendment (providing for the direct election of Senators) make that purpose less relevant today.
Discussing Madison’s opposition to Senate trial of impeachment.
Arguing that Senate trial of impeachment is a dynamic “Madisonian device to resolve factional disputes.”
Brett W. King, The Use of Supermajority Provisions in the Constitution: The Framers, the Federalist Papers and the Reinforcement of A Fundamental Principle, 8 Seton Hall Const. L.J. 363, 373 (1998).
Noting that Hamilton approved of Senate trial of impeachment, Madison opposed it, and that there was no debate as to supermajority conviction rule.
Arguing that conviction after impeachment is nonjusticiable.
Todd D. Peterson, The Role of the Executive Branch in the Discipline and Removal of Federal Judges, 1993 U. Ill. L. Rev. 809, 874 (1993).
Discussing Founding context and contrasting formalist and functionalist views on exclusivity or nonexclusivity of impeachment as a mechanism for removing federal judges.
Arguing that judicial misconduct falling short of an impeachable offense may only be self-regulated by the judiciary itself.
Michael J. Gerhardt, The Constitutional Limits to Impeachment and Its Alternatives, 68 Tex. L. Rev. 1 (1989).
Arguing that impeachment is a quintessentially political process, that Congress has broad authority to prescribe procedures, and that impeachment issues are nonjusticiable.
Arguing that “sole power” impliedly precludes judicial review of a conviction after impeachment.
Arguing that the Senate’s “sole power” to try impeachments precludes judicial review.
Providing historical background informing purpose of entrusting impeachment to Congress.
Raoul Berger, Impeachment: The Constitutional Problems 111–12 (1974).
Arguing that “try” “was limited to fact-finding, and thus that conviction after impeachment was subject to judicial review.
Irving Brant, Impeachment: Trials and Errors (1972).
Arguing that the House’s “sole power” to impeach and the Senate’s “sole power” to convict are stated in contradistinction to one another, and so do not implicitly foreclose judicial review.
Arguing that conviction of impeachment is not the sole recourse for removing executive and judicial officers and that Congress can enact legislation necessary to effectuating the removal of officers who do not maintain “good behavior” but whose conduct falls short of “high crimes and misdemeanors.”
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