The Libertarian Constitution: Expand Grounds for Impeachment

Congress should impeach far more officials than it does.

January 19, 2021 • Commentary
By Ilya Shapiro, Timothy Sandefur, and Christina Mulligan
This article appeared on Philadelphia Inquirer on January 16, 2021.

This was probably an easier project for us than for our conservative and progressive counterparts because the current United States Constitution is fundamentally a libertarian or, more precisely, classical liberal document. So much so that, at the outset, we joked that all we needed to do was to add “and we mean it” at the end of every clause.

After all, the Constitution set out a government of limited and enumerated powers, powers divided both “horizontally” among the three branches of the federal government and “vertically” in a federalist system that recognizes, while limiting, the sovereignty of states, in order to protect “the blessings of liberty.”

Of course, there have been some developments in the 230 years since the original Constitution and Bill of Rights took effect and the 150 years since the post‐​Civil War amendments were ratified, that have demonstrated certain deficiencies from a libertarian perspective. Today’s imperial presidency militates for a reweighing of checks and balances.

In particular, we think impeachment is underused. Congress should impeach far more officials than it does. What’s more, some have denied that officials can be impeached for dangerous incompetence or gross negligence — so we’ve again clarified something that is already law by saying explicitly that they can be impeached for “behavior that renders them unfit for office.” Since it takes two‐​thirds of the Senate to convict and remove, we think it unlikely that this will render the president “subordinate” to Congress — and in any event, in an age of “imperial” presidents, stronger checks are probably warranted.

Original: 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.

Rewrite: 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, other high crimes and misdemeanors, or other behavior that renders them unfit for office.

About the Authors
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.

Christina Mulligan