George Mason Lost the Word Maladministration and Impeachment Was Born Narrow

Picture the scene, if you can stand the heat: a Saturday in Philadelphia, September 8, 1787, the delegates exhausted after nearly four months behind closed windows, the end of the Convention in sight. A Virginian rises to fix what he sees as a hole in the impeachment clause. He proposes one word. Another Virginian, younger and shorter and far more patient, stands up and kills it in a single sentence. The word was "maladministration." The sentence that killed it is one of the most important in the records of the Convention, and if you have ever watched an impeachment on television you have lived with its consequences.

This is the story of that exchange, how the Founders arrived at "high Crimes and Misdemeanors," what the phrase meant in English law, what Hamilton said about it in Federalist 65, and why the old debate over whether impeachable conduct must be a crime still matters. The lesson is not partisan. It cuts against whichever party happens to hold the House and dislike the president. That is exactly why it is worth getting right.

The clause as it stands

Article II, Section 4 reads:

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.

The House has "the sole Power of Impeachment" under Article I, Section 2. The Senate has "the sole Power to try all Impeachments" under Article I, Section 3, and "no Person shall be convicted without the Concurrence of two thirds of the Members present." When the president is tried, the Chief Justice presides. Judgment extends no further than removal from office and disqualification from future office, though the person remains liable to ordinary criminal prosecution.

Three grounds, then: treason, bribery, and a third category defined by a phrase borrowed from English law. To understand why the third category is worded the way it is, you have to go back to that Saturday.

How the draft got to September

Impeachment was in the plans from the start. The Virginia Plan, presented on May 29, 1787, contemplated impeachment of national officers. Delegates debated through the summer whether the executive should be impeachable at all; a few thought impeachment would make the president a creature of the legislature. Most agreed with the view that no man should be above justice. The Convention voted that the executive should be removable on impeachment and conviction.

The grounds shifted several times. The Committee of Detail's draft of August 6 provided for impeachment of the president by the House for "treason, bribery, or corruption," with trial before the Supreme Court. Then, on September 4, the Committee of Eleven, a committee on postponed matters that also invented the Electoral College (see The Committee of Eleven Invented the Electoral College in the Final Weeks), reported a new version: trial in the Senate, on impeachment for "treason, or bribery." Corruption had fallen out. Two crimes remained, both specific, both serious.

That is where things stood when the delegates took up the clause on September 8.

The exchange on September 8, 1787

George Mason of Virginia thought two grounds were far too few. Madison's notes record him asking:

Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences.

Mason pointed to Warren Hastings, the former Governor-General of India, whose impeachment by the British House of Commons was underway in London that very year. Hastings, Mason observed, was not guilty of treason. Attempts to subvert the Constitution might not be treason as the Constitution narrowly defined it. And because the Constitution forbade bills of attainder, which in English history had sometimes been used against powerful offenders, it was all the more necessary to widen impeachment. Mason moved to add "or maladministration" after "bribery." Elbridge Gerry of Massachusetts seconded.

James Madison objected. His own notes record his words:

So vague a term will be equivalent to a tenure during pleasure of the Senate.

Consider what that sentence means. Maladministration is bad administration: poor judgment, incompetence, wrong policy. Everyone who disagrees with a president's policies thinks he is administering badly. If maladministration were grounds for removal, a Senate majority plus enough votes to reach two-thirds could remove a president for the crime of governing in a way they disliked. The president would no longer serve a fixed term, accountable to the voters. He would serve at the pleasure of the Senate, like a British minister serving at the pleasure of Parliament. That would destroy the independence of the executive, and with it the separation of powers the Convention had spent the summer building.

Gouverneur Morris added that an election every four years would prevent maladministration. That is the key insight. The remedy for bad policy is the ballot. Impeachment is for something worse.

Mason withdrew "maladministration." In its place he proposed "other high crimes and misdemeanors against the State." The motion passed, eight states to three. The words "against the State" were soon changed to "against the United States" to avoid confusion with the individual states, and the qualifier then dropped out in the final text. What survived was the phrase we have: "Treason, Bribery, or other high Crimes and Misdemeanors."

The word "other" deserves attention. It tells you that whatever high crimes and misdemeanors are, they belong in the same family as treason and bribery. That is a hint about weight. Treason is betraying the nation to its enemies. Bribery is selling the power of office. The other offenses must be of comparable gravity.

Where the phrase came from

"High crimes and misdemeanors" was not invented in Philadelphia. It came from four centuries of English parliamentary practice. The phrase appears in the impeachment of Michael de la Pole, Earl of Suffolk, in 1386, and recurred in impeachments of royal ministers through the seventeenth and eighteenth centuries.

In English usage, the "high" modified both nouns. High crimes and misdemeanors were offenses against the state itself, committed by those who held public trust, as opposed to ordinary crimes against private persons. A "misdemeanor" in this older sense did not mean a petty offense, as it does in our criminal codes. It meant misconduct, a mis-demeanor, a failure to behave as the office required. English impeachments charged ministers with offenses such as betraying the nation's interests, misapplying public funds and abusing their offices to subvert the law. Not all of these were crimes under ordinary statutes.

That history matters in two directions. It shows the phrase was a term of art with a meaning, not a blank. And it shows that the meaning was broader than the criminal code but narrower than "anything Parliament disliked." The Hastings impeachment, which Mason invoked, charged corruption and abuse of power on a grand scale. Edmund Burke led the prosecution in Westminster Hall. Hastings was eventually acquitted in 1795, after a trial that lasted years. The founders watched it closely, and some of them took from it a warning about how long and political an impeachment could become.

Hamilton in Federalist 65

Alexander Hamilton defended the impeachment design in Federalist 65, published in March 1788. He described the subjects of impeachment as:

those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.

They are, he wrote, of a nature which may with peculiar propriety be called political, as they relate chiefly to injuries done immediately to the society itself.

Hamilton was frank about the danger. Impeachments, he warned, would agitate the passions of the whole community and divide it into parties more or less friendly or inimical to the accused. The greatest danger was that the decision would be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt. That is why he defended trial by the Senate, a body he hoped would be independent and dignified enough to judge fairly, and why the two-thirds rule for conviction mattered so much.

Read Hamilton and Madison together and the design comes clear. Impeachment is for grave abuse of public trust, the kind of conduct that injures the society itself. It is not for policy disagreement. And the supermajority rule ensures that no faction acting alone can remove an official elected by the whole nation.

Must it be a crime?

Here is the debate that has run since 1787, and it is worth stating both sides carefully.

The narrow view. Impeachable conduct must be an actual crime, or at least conduct of the gravity of a crime. This view relies on the word "crimes," on the company the phrase keeps (treason and bribery), on Madison's fear of a tenure at the Senate's pleasure, and on the requirement that the trial resemble a judicial proceeding. In the 1868 impeachment of President Andrew Johnson, his counsel, former Justice Benjamin Curtis, argued that only offenses against the law were impeachable. Johnson was acquitted by a vote of 35 to 19, one vote short of the two-thirds needed to remove him.

The broad view. Impeachable conduct includes serious abuses of power that are not crimes under any statute. This view relies on the English history, on Hamilton's language about "abuse or violation of some public trust," and on common sense: a president who refused to defend the country in war, or who used his pardon power to protect his own conspiracy, might commit no statutory crime and still deserve removal. Joseph Story, in his Commentaries of 1833, wrote that impeachable offenses could not be confined to crimes defined by statute. Early practice also supports the broad view in part: federal judge John Pickering was removed in 1804 for drunkenness and erratic conduct on the bench, which was no crime.

The answer, point by point. Let me state where the strongest reading lands.

1. The broad view is right that a statutory crime is not strictly required. The English phrase covered official misconduct, and the Constitution was written before Congress had passed any federal criminal statutes at all. If impeachment required a federal crime, the impeachment clause would have been empty on the day it took effect.
2. The narrow view is right about everything else. The rejection of "maladministration" is the most direct evidence we have of what the Convention meant, and it shows that bad policy, poor judgment and political disagreement are not enough. The conduct must be of the same weight as treason and bribery: a grave abuse of the powers of office, done in a way that injures the nation itself.
3. The test, then, is gravity and abuse of office, not the criminal code. Ask whether the conduct sells, betrays or subverts the office. If the honest answer is that the House majority simply thinks the official is doing a bad job, the answer is an election, exactly as Gouverneur Morris said.

That standard is uncomfortable for partisans of every stripe, which is a sign it is the right one. In 1970, then-Representative Gerald Ford said in a House floor speech that an impeachable offense was whatever a majority of the House considered it to be at a given moment in history. As a description of raw power, he was right; no court reviews what the House impeaches for. As a description of the constitutional standard, he described exactly the tenure-at-pleasure that Madison warned against.

What the record shows

The House has impeached three presidents a total of four times: Andrew Johnson in 1868, Bill Clinton in December 1998, and Donald Trump in December 2019 and again in January 2021. Each was acquitted by the Senate. Richard Nixon resigned on August 9, 1974, after the House Judiciary Committee approved articles of impeachment but before the full House voted. No president has ever been removed.

Most impeachments have been of federal judges, and most of those removed were charged with conduct such as bribery, perjury or tax evasion. One case stands out as the other face of Madison's warning: Justice Samuel Chase was impeached in 1804 largely for his partisan conduct and rulings from the bench, and was acquitted by the Senate in 1805. That acquittal set a lasting principle that judges are not impeached for their decisions. See Samuel Chase's 1805 Impeachment and Why Judges Are Not Removed for Their Rulings.

The two-thirds rule has done exactly what the founders intended. It has made removal nearly impossible on a party-line vote. Critics call that a failure. It is the design working. The founders did not want the removal of an elected president to turn on which party won the last midterm.

Why it matters now

There is moral weight in this history. The founders were trying to solve a problem that had defeated republics for two thousand years: how to remove a dangerous ruler without making every ruler the hostage of his rivals. Their answer was a narrow ground, a high bar, and a separate trial body. Mason wanted a wider net, and his concern about unpunished abuses was honorable. Madison saw that a wider net would catch the presidency itself.

When the next impeachment comes, and one will, the question for a citizen is not "Do I like this official?" It is the question Madison and Mason argued over that Saturday: is this treason, bribery, or an offense of equal gravity against the nation, or is it maladministration dressed up in the language of high crimes? Mason's other great contribution to the Constitution, his demand for a bill of rights, is told in George Mason Refused to Sign, and His Objections Became the Bill of Rights. For the defined crime at the head of the list, see Treason Is the One Crime the Constitution Defines, and It Defines It Narrowly, and for the presidency's own design, Federalist 70 Read Closely, Hamilton's Case for Energy in One Executive.

The case in brief

1. On September 8, 1787, George Mason moved to add "maladministration" to treason and bribery, and Madison answered that so vague a term would be equivalent to a tenure during the pleasure of the Senate.
2. Mason withdrew it and substituted "other high crimes and misdemeanors," passed eight states to three, a phrase from English impeachments going back to 1386.
3. Hamilton in Federalist 65 described impeachable offenses as abuses or violations of public trust and warned that party strength might overwhelm real evidence of guilt.
4. A statutory crime is not strictly required, but the rejected word proves that bad policy is not enough; the conduct must match treason and bribery in gravity.
5. The two-thirds rule has kept removal from becoming a party weapon, which is the design working, not failing.

What you can do: read Madison's notes for September 8, 1787, and Federalist 65 before the next impeachment debate, then test what your representatives say against the standard; see how they voted on our scorecard.