Against Stretching the Constitution: Reply to Franck and Schaub

Events have conspired to prolong the debate over who will be the next Speaker of the House of Representatives. And as I urged in my last post, that debate should also be about what kind of person could be the next speaker. More specifically, I argued that the next speaker—or any speaker, for that matter—needn’t be a sitting member of the House of Representatives. This drew responses from Matthew Franck, writing at NRO’s Bench Memos, and Diana Schaub, in this space. As they present quite different reasons for disagreeing I’ll take up each in turn, though it will become clear that there’s significant overlap in their arguments.

But first, we would do well to be clear about what this debate is, and is not, about. It is about whether or not there is a constitutional bar to a House Speaker who is not a sitting member of the House. At a deeper level, it is about whether historical practices that are neither identified nor prescribed by the Constitution are standards of constitutional meaning. It is not about how the House has conducted business for the past two centuries. Nor is it about whether the selection of a non-member would raise interesting constitutional or political questions. It is not even about whether the selection of a non-member would offend the sensibilities of some or all of the Founders, if a reliable account of those sensibilities could be ascertained. The debate is solely over the existence of a constitutional prohibition to a non-member speaker

Matthew Franck, to whom I was responding in my initial post, offered a reply that hinges on what he sees as my misunderstanding of “the use to which [he] was putting the Incompatibility Clause.” Obviously I don’t think I misunderstood it, but Franck’s reply is helpful for clarifying that I may not have taken the clearest route to showing why I think it’s wrong. Franck says that he agrees with me that an executive or judicial official is prohibited from serving as speaker. But his agreement is grounded in his interpretation of the “chuse their Speaker” clause, not the Incompatibility Clause (the clause on which I base my argument) because the former “refer[s] naturally to the choice of a sitting member of the House.”

But this argument begs the question, for this whole debate is about whether the “choice of a sitting member of the House” to serve as Speaker is, in fact, constitutionally required. It is only by assuming an affirmative answer to this question that Franck is able to reject the possibility of an executive or judicial official serving as Speaker. Moreover, if Franck’s prohibition of an executive or judicial official serving as Speaker depends on his reading of the “chuse their Speaker” clause, then the Incompatibility Clause argument is not only superfluous, it’s unhelpful. The question is settled for him by the insistence that the “chuse their speaker” clause presupposes the exclusive selection of a sitting member of the House. And that insistence is grounded not in constitutional text but the legislative practices taken for granted at the time of the Founding. The Incompatibility Clause does no work in that argument.

In my first post I offered a quite different interpretation of the Incompatibility Clause. There I suggested that it could be read as a separation of powers provision, thus requiring the non-simultaneity of service in the legislative branch and the executive or judicial branches. But this principle requires giving the clause a structural reading, because it most naturally applies to the prohibition of sitting congresspersons serving in the other branches, and not vice versa. As an intra-textual matter, “member” must be read as equivalent to “duly elected official,” which is precisely why the prohibition of executive or judicial officials serving in the legislature must be arrived at inferentially. So, unlike Franck, I have an Incompatibility Clause argument against the Secretary of the Treasury, the President, or any other executive or judicial official serving as Speaker. Thus, it isn’t clear how my reading “vitiates” the Incompatibility Clause’s meaning and purpose, if by “vitiate” we mean anything other than disagreeing with the meaning and purpose Franck ascribes to the “chuse their Speaker” clause.

Franck also says that “Anyone who reads [the “chuse their speaker”] clause” as not precluding the service of a non-member “is giving his blessing to the potential service of an executive or judicial officer as speaker.” Set aside for a moment the Incompatibility Clause argument I’ve just sketched. We see here, once again, the role played by the fear of progressive-style branch collusion. This may well be an entirely justified fear; and as a prudential matter, it may be a fear that should inform political behavior. But is it a fear the Constitution addresses? Put differently—and this, I think, is what Jonah Goldberg was trying to get at in both of his posts—is this a question the Constitution answers? It seems as though Franck is asking the Constitution to answer more—or at least different—questions than the framers sought to answer in their construction of the legislature and the constitutional regime in which it was embedded.

This, I think, accounts for Franck’s interpretive sleight of hand that elevates the contingent legislative practices and expectations of the Founding generation to the level of constitutionally required meaning. His argument begins with the “chuse their speaker” clause—which does not mention membership—passes through the Incompatibility Clause, and on the way picks up the inference that the Speaker must be a member of the House. It is only when read in light of the Incompatibility Clause, and against the backdrop of political experience across the whole sweep of American political history, that “member” picks up the meaning and significance required by his argument. Franck persists in saying that the “chuse their Speaker” clause refers “naturally to the choice of a sitting member of the House.” But as a textual matter it is far from a “natural” reading. To arrive at the interpretation Franck advocates, the “chuse their Speaker” clause must be interpreted intra-textually, illuminated by the use of “Member” four sections later in the Incompatibility Clause, even though that clause doesn’t do any work in his argument!

In this connection it should be noted that there’s an alternative reading of the Incompatibility Clause that limits its application to sitting congresspersons. On this reading, current representatives and senators would be precluded from serving in the executive or judicial branch, but not vice versa. After all, that clause appears in the context of defining the compensation of elected representatives and reads most naturally as applying in the first instance to the same. If this is the case, then an executive or judicial official could serve as House Speaker, though he or she wouldn’t be a “member” of Congress for the reasons Franck notes.

Franck could only avoid this consequence by importing meaning and practices unsupported by the constitutional text in order to read the “chuse their Speaker” clause as entailing a membership requirement. More on this in a bit.

Now for Diana Schaub, who takes a different tack. Instead of appealing to “context and history to guide constitutional interpretation,” a la Franck, Schaub argues that “the text of the Constitution is sufficient” because the interpretation I offered “makes a hash of so many other constitutional provisions.”I’ll start with the general observation that relying on things passed pursuant to the Constitution to clarify or establish constitutional meaning isn’t the most sound interpretive method. Indeed, it seems like the opposite of a reliable method. At best, congressional action can give us an indication of what the relevant actors thought the Constitution does, should, or could mean. So it’s no coincidence that, even though she says she’s presenting a textual case, Schaub’s argument, like Franck’s, is frequently less about what can be gleaned from what the Constitution actually says than about what some of the Framers and later political actors expected it to mean.

And as those who’ve followed the evolution of originalist philosophy over the past few decades know all too well, that’s an avenue fraught with methodological complications. So while I find the 1789 Standing Rules Schaub references perfectly reflective of the practice at the time, perhaps even the expected practice of the eight constitutional signers in the First Congress, I don’t see them as exhausting the possible constitutional meaning of the clause. And, of course, if a non-member were elected Speaker, the rules would have to be appropriately amended and adopted, as they are at the beginning of every new Congress.

In at least one important respect all of Schaub’s substantive arguments are like Franck’s argument: they beg the question of the meaning of the “chuse their Speaker” clause. If we assume that that clause has a membership requirement, then each of her arguments—concerning the qualifications for office, the oath of office, and the legal protections accorded sitting representatives—hold together. But, again, the only ground Schaub (like Franck) advanced in defense of this assumption was prevailing practice at the time of the Founding and the expectations of some Founders. (It would take too much space to fully defend this argument, but it should at least be noted that in Madison’s Notes (1840) and all three volumes of Farrand’s Records of the Federal Convention (1911), not a single debate over the meaning of the “chuse their Speaker” clause is recorded. And if Pauline Maier’s Ratification: The People Debate the Constitution, 1787-1788 (2010) is a reliable guide, then we must also conclude that it was a non-issue in the ratification debates. Where, then, comes this intent or expectation robust enough to compel a particular interpretation of the clause?)

The alternative, she stresses, is a Speaker who might not take an oath to uphold the Constitution, might not meet the formal qualifications for office, and would be liable to executive harassment. Are those consequences so absurd as to force any specific reading of the “chuse their Speaker” clause, much less the one Schaub and Franck support? I don’t think so; but they do. And that seems like an awfully indirect way to define who is eligible to serve as Speaker of the House.

Schaub’s point about presidential succession raises an interesting and somewhat different set of issues. Relying on the current succession statute to clarify what the Constitution requires as regards the House speaker assumes that the 1947 statute is a faithful extension of constitutional meaning and principles. And if we consider the succession statute in light of the relevant constitutional provisions, it is not at all clear that the statute is constitutionally unproblematic. (I’m certainly not the first to suggest this, and the argument is assuredly contested.) Indeed, Franck’s initial piece identifies the grounds for being skeptical about relying on the succession statute to limit eligibility for speaker.

As he points out, throughout the Constitution “officer” refers to “only those who serve in the executive and judicial branches.” In Article II, Section 1, Clause 6 Congress is granted the power of “declaring what Officer shall…act as President” in cases of “Removal, Death, Resignation or Inability[.]” (This is modified, but not wholly abrogated, by the 20th and 25th Amendments.) And yet, in constructing the succession regime, Congress (for the second time) put two of their own in line, this time with the speaker of the House following the Vice President and the president pro tem of the Senate following the Speaker.

It’s no coincidence that the Succession Act of 1947 was passed during the speakership of Joseph Martin, the only Republican to lead the House during two decades of Democratic presidents! It was, in other words, a power grab, one just as enticing for allies of the president as his opponents, which is likely why the statute is still in force today. So the fact that the Speaker is second in line for the presidency provides no support whatsoever for reading the “chuse their speaker” clause as requiring the election of a sitting member of the House. Unless, of course, the argument is that, in light of constitutional development and settled political practice post-ratification, the Speaker must be a sitting member. But that argument is available to neither Schaub nor Franck, as their argument is one of original meaning and practice, with reference to the intentions of some among the Founding generation.

It may be discomfiting to admit, as I suggest above, that the Constitution could allow (or at least not prohibit) the service of an executive or judicial official in a legislative branch position. But that unease alone cannot serve as the basis for a constitutional argument to the contrary. And this, I think, is the true ground of disagreement between me and both Franck and Schaub. While I am content to say that the Constitution simply doesn’t supply certain prohibitions or answer certain questions, they seems to want to stretch the Constitution—to treat it as if it answers, and thus should be read to answer, more questions than a fair reading countenances.

This impulse becomes starkly apparent in Franck’s and Schaub’s litany of questions that are intended to show the “absurdity” of my argument. Reacting to my emphasis on the possibility of a private citizen serving as speaker, Franck asks: “Why not a sitting governor, or the mayor of D.C.? Would the speaker even have to be a citizen? An adult?” Schaub echoes this argument, raising the specter of a foreign Speaker. Or a youth! Or a foreign youth! Heaven forfend!

Risking provocation, my response is straightforward: Why not? Literally, why not? If there are prohibitions on any of these possibilities, they are not to be found in the Constitution but in the reasoned judgment of representatives elected to make decisions on behalf of their constituents. There are innumerable awful or worrisome things to which democratic politics could give rise. But only some of them are prohibited by the Constitution. We can opt either to interpret a constitutional provision to answer whatever question we pose, or we can acknowledge that there are questions the Constitution simply doesn’t answer, at least not as we may want it to answer them. And the Constitution can be given an anti-Progressive reading, as much modern conservative constitutional theorizing has. But that reader should at least be clear that that’s a different task from what the Framers set out to do.

Which is why constitutional democracy entails a robust commitment to self-government. A constitution cannot account for every contingency or potentiality; but it can structure the legal and political processes by which those things are addressed. And the sooner we’re clear about the questions that must be resolved politically, the sooner we can begin the difficult work of cultivating a politics fit for the task.