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It Is Not Clear that the Speaker Needs to Be a Member of the House

In a post last week, Diana Schaub argues that the Speaker of the House must be a member of the House of Representatives.  Here is the initial part of her argument:

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.

The remainder of the post provides some additional arguments based on the qualifications, privilege from arrest, and oath clauses.  Mike Ramsey is inclined to agree.

I am not so sure.  To me, it is at best an open question that turns on the history.

The key text concerning the matter is in Article 1, Section 2, Clause 5, which provides: “The House of Representatives shall choose their Speaker” (emphasis added).   By itself, this imposes no explicit requirement that the Speaker be a member of the House.  So how can one find that restriction?

Schaub argues that the term “their” is important.  She says it implies that the Speaker should be “of the House.”  And the Constitution defines the House to consist of Members chosen every second year – that is, representatives.  Therefore, she concludes the Speaker must be a member of the House.

I suppose one could read “their” that way, but it is not the ordinary way one would read the term.  Moreover, the Constitution does not express any implicit criticism of a presiding officer not be a member of a house.  On the contrary, the Constitution provides that the Vice President “shall be President of the Senate,” yet it is clear that the Vice President is not a member of the Senate, which the Constitution says “shall be composed of two Senators from each state.”

Schaub is correct that first House’s rules seemed to imply that the Speaker should be a member, but that does not mean the Constitution requires it.  The Constitution allows each house to pass rules and those rules can set the parameters as to who can be an officer of the house.  Thus, the first House’s rules do not necessarily indicate anything about the Constitution’s meaning.

The best argument for the conclusion that the Speaker must be a member of the House is mentioned by Ramsey and is historical.  Let’s assume that the Speaker of the House of Commons in England had long been required to be a member.  Then one might conclude that the term Speaker had associated with it the requirement of being a member of the House: that is what people meant, in a legal context, by a Speaker.  There appears to have been an interpretive rule at the time of the Constitution to refer to legal institutions as containing their historical incidents.  Under these circumstances, one might conclude that a speaker had to be a member of the House.

But even if Speakers were traditionally required to be a member of the House, I would think it would only be a possible meaning of the term, not a required meaning.  One would have to resolve the uncertainty by reference to other interpretive rules, such as purpose and structure.  Considering constitutional purpose, it is not clear to me that the Constitution was intended to preclude the House from making its own determination who to have as a Speaker.

This analysis has assumed that the traditional rule required the Speaker to be a member of the House of Commons.  But that is not clear.  Wikipedia, which Ramsey cites, merely says that the Speaker was a member of the House, not that the Speaker was required to be a member.  If that is what the history shows, the argument is considerably weaker.

Reader Discussion

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on October 12, 2015 at 11:55:12 am

It seems to me that this issue is not justiciable. That is, it would be left to the House of Representatives itself to interpret the meaning of the constitutional language; that legislative body is the "judge" of who can qualify to be its Speaker. Which court would be willing to step in and overturn such an internal decision of the House of Representatives?

The only point that I could suspect that might entice a court to opine, would be the fact that the Presidential Succession Act of 1947 (pursuant to the 20th Amendment) puts the Speaker of the House next in line of succession, following the Vice President, to succeed to a vacancy in the presidency, making the matter more than just a concern of the House of Representatives and how that House organizes itself, though a highly hypothetical possibility. It may be more than curious to note that the 1947 Act includes the following language as to when the Speaker would formally become President: "upon his resignation as Speaker and as Representative in Congress". It seems clear that in 1947 Congress did not think that it was possible for someone other than a Member of Congress to be also Speaker of the House.

Nevertheless, I hold to the point, that it would still be left to the House of Representatives itself to determine who is qualified to be its Speaker.

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Wayne Abernathy
on October 12, 2015 at 12:31:25 pm

You are certainly correct. The choice of Speaker would pass even Chief Justice Roberts' narrow construction of non-justiciability -- a question entrusted by the text of the Constitution to another branch. Nonetheless, even on non-justiciable matters, I think it is useful to talk about what the Constitution requires, lest we encourage the lazy habit of mind that we find too often in the first two branches: thinking that "constitutional" means whatever the SCOTUS lets us get away with.

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Bucklander
on October 12, 2015 at 12:34:04 pm

I fully concur with that point. Each branch of government, legislative, executive, and judicial, has the duty to follow and uphold the Constitution. In this case, our arguments are, essentially, to the members of the House of Representatives.

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Wayne Abernathy
on October 12, 2015 at 18:43:43 pm

Interesting!

Does the author wish the Black Robes reconsider their decision in the recent "recess" case against the Obama administration in which they did consider standard and traditional practice?

I wonder what is the word for the political branch's equivalent of settled decision? One wonders: if "settled decision" is good enough for the Black Robes, could it not also be good enough for peoples representatives?

I suspect I am simply not clever enough to properly confuse the issue.

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gabe
on October 12, 2015 at 19:56:53 pm

I have taken the liberty of reposting here Andrew Hymans comments to Prof. Schaub's original essay:

Andrew Hyman says

October 12, 2015 at 7:39 pm

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.

so how is that for sticking to the "original" meaning of the text / word!!!

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gabe
on October 12, 2015 at 20:21:37 pm

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.

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Andrew Hyman
on October 12, 2015 at 20:45:51 pm

[…] Mike Rappaport wrote a helpful summary of the arguments over whether the Speaker of the House must be a member of the House of Representatives. […]

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Links for 10-12-2015 | Karl Heubaum

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.