—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity
[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]
As the attention of many observers of law and politics is fixed on the impeachment process now underway in the United States of America, it’s an interesting time to think about the choices that constitution drafters make regarding the grounds for removing the head of state. Part of the case in the US Senate has so far turned on whether or not the conduct of President Donald J. Trump meets the standards for impeachment and removal as described in Article II, § 4. As readers no doubt know, the kinds of conduct that are described there are “Treason, Bribery, or other high Crimes and Misdemeanors.”
While treason and bribery are reasonably clear, legal scholars have spilled considerable quantities of ink in discussing precisely what might or might not be covered by “high Crimes and Misdemeanors” (see a nice summary at the Lawfare blog). I have nothing particularly original to contribute to the debate over whether or not a crime as otherwise defined must have been committed for this part of the clause governing impeachment to apply. However, I would like to draw our attention as scholars of comparative constitutional law to the level of influence that this particular formulation has had in the drafting of other constitutions, and to think for a moment about how widespread the term may or may not be. The history of the US drafting is itself interesting, as the drafters considered various other ways in which potential grounds for impeachment might be described (see esp. Berger).
The influence on the US Constitution as a general model for other states is quite well known (see especially Billias 1990, 2011). The US Constitution has also been a model for specific textual choices in a surprising number of other states. I have identified 49 national constitutions that copy at least one phrase from the US Constitution. The countries that copied more than one phrase are not unexpected, with former US colonies or dependencies particularly well represented (e.g. Philippines, Micronesia, Palau, Marshall Islands). The most popular phrase to copy is the guarantee of due process in the 14th Amendment. However, the impeachment process is not entirely neglected. Four constitutions copy part of the description of the impeachment process in Article I, § 3 (Argentina (Article 60), Republic of Korea (Article 65, cl. 4), Liberia (Article 43), and the Philippines (Article XI, § 3, cl. 7)).Read the rest of this entry…