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.