Dysfunction Is No Excuse for Misreading the Constitution

Can the U.S. House of Representatives elect a non-member to the Speakership? Disgusted by the dysfunction in Congress, some are suggesting this is constitutionally possible. Connor Ewing, in this space yesterday, asserted the only thing standing in the way is “over two centuries of legislative practice to the contrary.” (Editor’s note: Ewing’s latest, written in reply to Schaub and National Review’s Matthew Franck, is here.)

He and a handful of others now claim that nothing in the text of the Constitution would prevent the members from electing an outsider. They cite Article 1, Section 2, Clause 5: “The House of Representatives shall choose their Speaker,” arguing that this leaves the choice entirely free (or at least free enough that a private citizen could be tapped for the post).

However, this construction of the passage ignores a number of other textual elements in the Constitution, as well as other relevant texts. There is an inescapable logic to the setting forth of the Constitution’s sections which should guide interpretation. In Article 1, Section 1, we learn that Congress is vested with specified legislative powers and that Congress “shall consist of a Senate and House of Representatives.” In Article 1, Section 2, Clause 1, we learn that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

These definitions govern the meaning of subsequent clauses. I admit that it would have put the kibosh on the present foolishness if the fifth clause had included the words in italics: “The House of Representatives shall choose from among their number their Speaker.” I think it simply never occurred to them that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator. The possessive pronoun is important. The House chooses “their” Speaker—a Speaker, we might say, who is of the House, by the House, and for the House. According to Article 1, Section 2, Clause 1, the House is composed of members and only members. The existing members of the House cannot summon into being a new member. The drafters thought the chain of connection from Sections 1 and 2 to Section 5 was clear enough; and for over 200 years, it was.  

The first Congress clearly thought the Speaker must be drawn from the current membership. When they assembled on April 1, 1789, the first order of business was the drafting of rules. By April 7, they had adopted the “STANDING RULES and ORDERS of this HOUSE,” the first of which laid out “the DUTY of the SPEAKER.” Among the duties: 

In all cases of ballot by the house, the speaker shall vote; in other cases he shall not vote, unless the house be equally divided, or unless his vote, if given to the minority, will make the division equal, and in case of such equal division, the question shall be lost.  

There were eight signers of the Constitution in this opening session of the House, among them James Madison. By the rules they adopted, they indicated their view that the Speaker of the House must be a member of the House, inasmuch as no non-member could have a vote.

The absurdity of a non-member Speaker can be seen by reference to other constitutional provisions. Article 1, Section 2 spells out the qualifications for Representatives (25 years of age, seven years a citizen, and a resident of the state the member represents). If the House could select an outsider as Speaker, these qualifications would not apply. A“Speaker not of the House”—a non-Representative Speaker—could instead be, say, a 22-year-old foreigner. Indeed, on the “unbounded choice” reading, nothing in the text of the Constitution would prevent the selection of Vladimir Putin as the next Speaker. Surely, he would put an end to our do-nothing Congress.

By the terms of Article 1, Section 6, Clause 1, “Senators and Representatives” are protected against “Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” This hard-won privilege would not apply to a non-member Speaker. Concerned as they were to guard the independence of each branch, would the Founders really have opened the way to executive harassment of the Speaker by allowing the possibility of a Speaker who is not a protected member of the legislative body?

And what about Article 6, Clause 3, which gives a comprehensive list of those who “shall be bound by Oath or Affirmation, to support the Constitution”? The oath-takers are “the Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” If the Speaker is a member of the House—which means duly elected as one of the people’s representatives—then he takes an oath. A non-member Speaker would be the only office-holder in our system not bound by oath. The fact that there is no constitutional acknowledgement of an outlier Speaker is strong evidence that the Founders did not mean to countenance such a bizarre reading. According to the Constitution, Senators and Representatives constitute the whole of the legislative branch.   

Finally, there is the Presidential Succession Act of 1947. That law assumes that the Speaker, who stands second in line for the presidency, is a Representative:  

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

Matthew Franck, over at National Review, has nicely explained the separation-of-powers fiasco that would result from the “unbounded choice” interpretation. He counsels attention to context and history to guide constitutional interpretation. In this case, however, it seems to me that the text of the Constitution is sufficient, since the “unbounded choice” interpretation makes a hash of so many other constitutional provisions.

Outsider-fever is rampant, now infecting even constitutional interpretation. But Congress is not a failing business enterprise that can be rescued by a new CEO. It may be floundering, but as a legislative body, with its membership specified by the Constitution, it must find leaders from among its ranks. The House is bound by the elections already made “by the People of the several States.” The overriding reason for this limitation is that the Constitution vests its specified legislative powers in Congress, composed of a Senate and a House, each in turn composed of members, elected by the people. Legislative powers cannot be lodged in the hands of a non-legislative person. To do so would violate the fundamental purpose of Article 1 of the Constitution.   

Diana Schaub

Diana Schaub is professor of political science at Loyola University Maryland.

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  1. gabe says

    Pretty persuasive, folks!!!!!

    Professor Schaub’s essay also nicely illustrates the danger of pure *textualism* and a fairly prevalent practice of (willful) disregarding of the structural and thematic elements of the Constitution.

    I believe she is entitled to “dropping the mic.”

  2. Scott Amorian says

    The first time I heard the theory that “anyone can be speaker” it had to do with people wanting Sarah Palin to be speaker after she and that other guy lost against Obama.

  3. Paul Milenkovic says

    Your argument regarding intent-of-the-framers was legally persuasive — until the Roberts Court (Bah-doom boom!).

    • Wfjag says

      I didn’t realize that “seperate, but equal”, equal, but preferred (“affirmative action”), or a host of other doctrines ( including that the federal judiciary is the final authority on the meaning of the Constitution, and so can effectively amend it at will), were creations of the Roberts Court.
      Although the author makes a compelling argument, the reality is that as to politically or socially charged issues, the meaning of the Constitution is determined at the whim of five individuals.

  4. askeptic says

    That which is not specifically forbidden, may be allowed if the parties shall desire it.
    As the Constitution says: “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”
    It is up to the House, and its Members, to decide how to organize themselves. It would seemingly not be subject to a legal debate outside the House. Woe unto any Supreme Court that would engage in a “political” matter that trespasses upon the Separation of Powers.

  5. William Porter says

    Thank you for this, Ms Schaub. As a respecter of traditions, I’m altogether favorably inclined to your explanation, and I pray that the house picks one of its members. (Heaven forfend the house ‘chusing’ Gingrich or Romney!!)

    But I’m curious why someone who wants an outsider can’t point to the example of the senate, where the vice president is ex officio president of the senate — without actually being a member of that body. Is it simply that the Constitution says explicitly that that’s how it shall be in the senate?

  6. Christopher Koopman says

    To your point that it “simply never occurred to [the Framers] that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator,” I think you might be missing the broader historical context of the transition from the Articles of Confederation to the Constitution. The Articles did, in fact, state that the Congress of the United States had the power “to appoint one of their number to preside.” This is almost nearly identical to the clause you wish the framers had included. It also makes it abundantly clear who could and could not be Speaker.

    However, when drafting the Constitution, they deliberately made a point to leave that phrase out. Was that merely an oversight, or did they intend to give Congress to power to actually choose anyone they wanted to preside as Speaker of the House? My guess is that each word, like the rest of the Constitution, was carefully chosen. No oversight in leaving it so wide open here. The House been empowered to “choose their Speaker,” and the terms of that choice is left to them.

  7. glen desjardins says

    Go,Trump,go, get in the white house and straighten these rinos out. If they said on all the major new channels that anyone can be speaker, sign me up. Why do we care Trump will over ride them anyway.

  8. Diana Schaub says

    To William Porter:
    Thanks for the good question. Yes, in the case of the Senate, the Constitution explicitly makes the Vice President the President of the Senate. However, it also states that the Vice President has no vote except in case of a tie. That provision makes clear the reason for the involvement of personnel from another branch in the operation of the Senate. Because the Senate is guaranteed to have an even number of Senators, the possibility of a tie vote is ever-present. We might then ask, why the Vice President as the tie-breaker? It is clear from other constitutional provisions that the Founders sought to create linkages between the Executive branch and the Senate. In a popular government, the House of Representatives—as the body closest to the people—was expected to be naturally strongest. The way to counteract that so as to achieve a system of dynamic equilibrium was to artificially strengthen the Executive (by giving him a legislative veto) and to strengthen the Senate as well (by, for example, giving the Senate a role in foreign policy and the appointment of Justices). The tie-breaking role of the Vice President was another of these artificial means by which to create an alliance between the two naturally “weaker” elements (the Executive and the Senate) against the expected encroachments of the powerful House.

    To Christopher Koopman:
    Thanks for the thoughtful, text-focused comment. I think in fact that the difference in language between the Articles of Confederation and the Constitution can be explained by paying close attention to the surrounding text in each case.
    Here is the relevant passage from the Articles:
    “The United States in Congress assembled shall have authority to appoint a committee, to sit in the recess of Congress, to be denominated ‘A Committee of the States’, and to consist of one delegate from each State; and to appoint such other committees and civil officers as may be necessary for managing the general affairs of the United States under their direction — to appoint one of their members to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years; . . .”
    What do we observe here? The authorization to appoint a President of Congress comes immediately after an authorization to appoint “civil officers.” Such managerial officers would not be drawn from the ranks of the delegates. Remember, there is no separate executive branch created by the Articles. Thus, when the document shifts to talking about a figure to preside over the Congress itself, it was necessary to specify that the President of Congress must be a delegate. His role is different from that of the civil administrators.
    I think this actually helps to explain why the words “one of their members” could be left out of the Constitution. Those words were not logically required. They would in fact have been redundant. Unlike the Articles, the Constitution is based on the principle of the separation of powers. In line with that, the definition of Congress (a bicameral body possessed of specified legislative powers) and the definition of the House (a legislative body composed of members elected on a biennial basis by the people of the states) had been set forth with absolute clarity in the first two paragraphs of Article 1. I can’t repeat often enough that those definitions govern the succeeding clauses.
    Under the new Constitution, the power of appointing civil officers (cabinet secretaries and suchlike) now resided with the newly created Executive branch (with the assistance of the Senate). Whereas the Articles of Confederation had to distinguish in the same sentence between unrestricted appointments and the appointment of the “President of the Congress” (restricted to state “delegates”), the Constitution assigned these different modes to different branches and hence different articles of the document. With the unrestricted appointments now lodged in a separate branch, it was sufficient to say that “The House of Representatives shall choose their Speaker.” By the logic of definition, their choice was confined to themselves.

  9. Andrew Hyman says

    According to one law dictionary published in 1708, we have the following definition (italics added):

    Speaker of the Parliament, is an officer in that High Court, who is, as it were, the common mouth of the rest: and as that honorable assembly consists of two houses, so there are two speakers, the one termed the Lord Speaker of the House of Peers, and is most commonly the Lord Chancellor, or Lord Keeper of the Great Seal of England. The other (being a member of the House of Commons), is called the Speaker of the House of Commons; both whose duties you have particularly described in a book entitled, The Order and Usage of Keeping the Parliament.

    This strongly suggests that, regardless of whether the Speaker was a member when chosen as Speaker, he was a member thereafter. Moreover, this definition explains that a person is called “Speaker of the House…” because of being a member.

    • gabe says

      Andrew:

      Begging your pardon, here; but I have taken the liberty of reposting your excellent comments / quote on the two follow-on posts. Too good to pass up and allow clever folks to continue to muck up the waters here.
      Hope you don’t mind.

      take care
      gabe

    • says

      The clause reads “The House of Representatives shall chuse their Speaker and other Officers.” Among these other officers are the Clerk of the House, the Doorkeeper of the House, the Sergeant-at-Arms of the House and others. Note that all of them are authorized by the same clause and all are referred to as “of the House.”

      Do I take you to argue that this means that all of them need to be Members of the House? If so, we have been violating the Constitution for a long time. If not, on what basis in the Constitutional text (rather than Congressional procedures, historical practices, or acts) do you base the distinction between the Speaker and the other officers of the House?

      i wrote a lengthy response to Frank at The Once and Future Speaker Gingrich, which answers most of the points you raise too.

      None of this is to suggest to selecting a non-member Speaker would be a good idea. But like many bad ideas it is perfectly Constitutional.

      • Andrew Hyman says

        Sub Specie Æternitatis, you say in your blog post that, “[t]here are two relevant constitutional clauses”. You quote them:

        * “The House of Representatives shall chuse their Speaker and other Officers.”

        * “[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”

        But I think you are overlooking some clauses, as I discuss in my own blog post:

        http://originalismblog.typepad.com/the-originalism-blog/2015/10/george-w-bush-and-bill-clinton-are-both-ineligible-for-speaker-of-the-house-and-for-president-and-fo.html

        * “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States….”

        * “The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution….”

        You ask me whether the doorkeeper needs to be a member of the House. No. By definition, a speaker is a member of whatever body he speaks for. That’s why I quoted a dictionary definition that says so. I am not aware of any dictionary that ever said a doorkeeper is a member of anything.

        • says

          Andrew Hyman says:

          But I think you are overlooking some clauses, as I discuss in my own blog post:
          * “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States….”

          I agree that this would preclude the interpretation that the House can choose a non-member speaker and thereby make the Speaker a sort of supernumerary Member. At most, the non-member Speaker could be granted the same privileges that can constitutionally be granted to other no-Members, like the various delegates. But then I do not contend that a non-Member Speaker would by virtue of his election become a Member of the House. All such a person would be is an Officer, constitutionally indistinguishable from the Doorkeeper, though as a matter of law and procedure endowed with far greater power.

          * “The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution….”

          I am not quite sure why this is to the contrary? Is it the implication is that a non-Member Speaker would not be Constitutionally required to take an Oath to support the Constitution? That seems slightly anomalous, but not really a big deal. Lots of people, like the other Officers of the House, are—I assume—required by statute to take an Oath to Support the Constitution.

          You ask me whether the doorkeeper needs to be a member of the House. No. By definition, a speaker is a member of whatever body he speaks for. That’s why I quoted a dictionary definition that says so. I am not aware of any dictionary that ever said a doorkeeper is a member of anything.

          That dictionary definition does weigh on your side of the argument, but not I feel very heavily. The entry does say that the Speaker of the House of Commons is a member. But that could as readily be taken for a description of customary practice, rather than a legal requirement.

  10. Cilantro13 says

    And yet, despite this argument, we have a non-legislator outsider (Vice President) President of the Senate who comes in and breaks ties in the Senate with a “vote.”

    • gabe says

      Interesting point and as Prof. Schaub mentioned it is constitutional and may be the result of a recognition that having an even number of Legislators, the Senate was more likely to be confronted with a tie.

      The VP IS an elected “official” which is more than one could say for a Cabinet Officer, etc. or the local barkeep, for that matter.

      Perhaps, another perspective may be: As the House is a popularly elected Legislative body and was intended to be the “closest” to the people, it was important that the peoples representatives – ALL of them – would need to have been subjected to the rigors / consent of the electoral process.
      Whereas, the Senate, as originally envisioned, was not democratically elected and was considered more of a deliberative “aristocracy” that would keep the popular sentiments of the masses in check. Thus, it may not have been perceived, by Madison, etc, to be as critical that the entire Senate must be comprised of its own members (as they were not elected with the peoples consent. It was also thought that the Senate (and the Executive) would be above the fray – thus less danger in having an outsider interpose. (Let’s not get into Madison’s notion of “shared institutional interests acting as a check on government – interesting but never quite worked out in theory or practice).

      Anyway, Just a few rambling thoughts here.

    • Andrew Hyman says

      The Constitution is very clear that the VP is not a member of the Senate: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote….” As far as I know, there’s no corresponding language indicating that the Speaker may be a non-member as well.

      • says

        But neither is there any language in the actual, written Constitution indicating that he must be a member. I am from a Borkean/Graglian advocate of letting Art. 1 and Art. 2 do as they please. But where there is absolutely no language which can be interpreted as stating a prohibition on a non-Member speaker, it must be Constitutional. The reason the Founders did not ban this was as likely a realization that a non-Member Speaker would not result in any great harm, as long as the House could choose and remove him, as an oversight.

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