Bench Memos

The Choice of a Speaker and the Coherence of Constitutional Text

Connor Ewing, at the Library of Law & Liberty, has worked hard to salvage the rapidly sinking argument that a person not serving as a member of the House of Representatives can be chosen by the serving members to be their speaker.  But the only thing he has succeeded in bringing to the surface is how confused his arguments are.

In responding to me and to Diana Schaub, Ewing knocks us both for referring to the historic practice of the House, which has expressed its view not only in consistently choosing one of its own as speaker, but even embodying this presumption of the speaker’s membership in its rules.  But neither Diana nor I leaned entirely on this history as dispositive, and neither of us has begged any question—as Ewing charges me, at least—regarding the background assumption of the “shall chuse their Speaker” language of Article I, section 2.  What we have both done is elucidate the best reading of a seemingly ambiguous text by fitting it into the whole of which it is a part—the whole Constitution.  Diana added some evidence that had not occurred to me—for instance, that an oath to the Constitution is required of all members of Congress and all executive and judicial officers, but would not be required of Ewing’s non-member speaker.  But Ewing appears to accept the obvious absurdity of a speaker not bound by an oath to the Constitution as no big deal.  Likewise he seems content to contemplate the choice of a speaker who is ineligible for service as a House member, not meeting the age or citizenship requirement, for instance.

In his latest post, Ewing appears to accept the possibility that a cabinet officer could be chosen speaker.  Or does he?  A few days ago he averred that “the appointment of a cabinet member or President is clearly prohibited by the Incompatibility Clause.”  And in his latest post he again says, at first, that “I have an Incompatibility Clause argument against the Secretary of the Treasury, the President, or any other executive or judicial official serving as Speaker.” 

But before he finishes the post in which he repeats this claim, he appears to abandon it.  He writes: “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.”  So which is it?  Does the Incompatibility Clause of Article I, section 6 permit an executive branch officer to serve as speaker, or not?

Ewing devotes a good deal of energy to an incoherent reading of the Incompatibility Clause, so perhaps here is where the difficulty lies.  He says, in his first post, that I read the clause as “operating in only one direction, that is, only prohibiting members of Congress from serving in the executive or judicial branches.”  What prompts him to attribute this reading to me, I cannot say, but calling it a “crabbed reading,” he argues that “the appropriate principle is the non-simultaneity of service. And if that’s the case, then the clause operates in both directions: members of Congress cannot simultaneously serve in the other two branches even as executive and judicial officials cannot simultaneously serve in Congress.”

Now in his latest post, Ewing says:

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.

At this point, I would either remark that Ewing has changed his tune, or I would inquire about which reading he really embraces, for he might simply be offering his alternative readings at different stages of his argument for different purposes, and perhaps I have not gathered his meaning adequately from his context.

At least, these are the things that would normally occur to me.  But here there is a more basic question to ask: what the devil is Ewing talking about?

The clause he is trying to get his head around is pretty straightforward: “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  As I have observed, “member” must mean the same thing at all times, and so when we learn from Article I, section 2 that members of the House are directly elected by the people of their states, and from section 6 that an executive branch officer cannot simultaneously be a member of either house, and then encounter Ewing’s view that a person not serving as an elected member of the House may be chosen speaker, then it follows that in his view an executive branch officer can be speaker without relinquishing his executive office.

But when Ewing goes on about there being some reading of the clause (whether he embraces it or not) under which “current representatives and senators would be precluded from serving in the executive or judicial branch, but not vice versa,” my question is, what on earth can you possibly mean by “vice versa”?  In what universe is there a logic that forbids A to equal B but permits B to equal A, using language that says “A and B shall not be equal”?

It is quite impossible, in the nature of things, for there to be two alternative readings of the Incompatibility Clause, one of which operates only “in one direction” while the other operates “in two directions.”   For the clause simply forbids a person to be both things at once—both an executive or judicial officer and a member of Congress at the same time.  There aren’t any “directions” about it, and the clause is perfectly indifferent about which position one occupied first.  Once we see this utter simplicity, great chunks of Ewing’s argument fall away as so much waste matter, pointlessly complicating the simple.

As I said, I am quite unable to tell—though I thought I once knew—whether Ewing accepts or rejects the possibility of a speaker who is simultaneously, e.g., a cabinet secretary.  I do know that his reading of the “shall chuse their Speaker” clause leaves him perfectly unable to reject it logically.  I also know that it gives him no ground for rejecting, as unconstitutional, the choice of a foreigner, or a child, or a governor, or even (as Ross Douthat mischievously suggested in the New York Times today) a sitting senator such as Mike Lee of Utah.

But it is interesting to see his response to Diana’s points and mine about the “absurdities” that his reading invites as possible.  He writes:

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.

It is undoubtedly true that the Constitution does not prohibit all bad or stupid things.  As I observed ten days ago, the Constitution does not prohibit the appointment of a foreigner, or a child, or an imbecile to a seat on the Supreme Court.  (Some would say we’ve avoided only two out of three of these so far.)  But it is also true that the Constitution requires some things, prohibits others, and permits and encourages still other things, all while leaving the effectuation of these various purposes to “the reasoned judgment of representatives elected to make decision on behalf of their constituents.”  (Or does Ewing hold the misbegotten view that “unconstitutional” means “what courts of law must strike down”?)  One of those things, on which the reasoned judgment of representatives has been consistently correct for 226 years, is the obvious requirement, springing from the very text of the Constitution if the whole is read coherently, that the speaker of the House be a sitting member duly elected by the people to that body.

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