Bench Memos

Jonah, Newt, and Constitutional Presumptions

Brother Jonah has replied to my Memo from earlier today, in which I argued that it really isn’t constitutional to make Newt Gingrich (or any other non-member) the speaker of the House.  Now, as my wife could attest, I’m no slouch either in the “sitting in a chair drinking scotch while watching TV” department (wait, isn’t that almost the definition of a slouch?), and likewise Jonah should not be too diffident about advancing constitutional arguments.  It’s everybody’s Constitution.  But I still think Jonah has this wrong.

His first reply to my criticism is that even if the framers’ expectation was that House speakers would be drawn from the membership (as they always have been), “it’s not explicitly written that way in the Constitution.”  I conceded this from the get-go; how could I not?  My point was that the words “the House of Representatives shall chuse their Speaker” were written on the basis of a shared understanding that the speaker would be a member.  This is underscored by the care the framers took elsewhere in the Constitution to keep members of the other two branches of government out of the legislative councils.

I already noted, and I’ll repeat here, that this should be considered settled by historic practice, since all 53 speakers have been members.  Even the House’s standing rules presume the speaker is a member.  He can rule on points of order raised from the floor; those rulings can be challenged or appealed from the floor, and overturned by a vote of the members; and the speaker has a vote on whether his ruling survives an appeal.  This presumes his membership in the body.

Contrast this with the situation in the Senate.  Jonah remarks that the vice president’s role there, as a presiding officer who is not a member, “suggests the founders may have been more open to this sort of thing.”  But this was a conscious carve-out from the general principle of the separation of powers that the executive-legislative boundary not be crossed, and so the framers had to make explicit provision that the veep can vote, but only to break ties.  The speaker of the House, and also the president pro tem of the Senate, are presumed to be voting members of the chambers over which they preside, so nothing is said about their power to vote.

Jonah also says that inviting a former member and speaker like Gingrich back to serve as a non-member speaker is akin to the practice of “emeritus judges” sitting on cases.  There’s a big difference.  The judges have life tenure (“during good behavior”), and for several decades now have been permitted by act of Congress to take “senior status” in which they don’t fully retire but drastically reduce their workload.  (A part of that statutory scheme I don’t like is the practice of letting Supreme Court justices take senior status and rove around to sit on circuit court panels, but there it is.)  They can take that senior status or fully retire.  Justice O’Connor is on senior status; Justice Stevens is really retired, altogether out of judging.

By contrast, House members are in, or they’re out.  No one has a comparable “emeritus status.”  Gingrich is out.  He can be speaker if he can first get a seat.

Jonah’s third point deserves full quotation because I wholly agree with its sentiment, and that’s why it’s wrong.  Huh?  Here it is:

The simple fact is that the House can do it if the House wants to do it because the Supreme Court would never intervene in such a case.  (For the record, I normally hate this kind of argument. If Congress thinks something is unconstitutional they shouldn’t do it, rather than pass the buck to the Supreme Court. But as a matter of practical politics, I’m fairly certain that if the House went down this route, no one could stop them.)

I titled my earlier Memo “Speaker Gingrich? Not Really Constitutional,” knowing I was inviting something like this response.  But I want to emphasize how right Jonah is to “hate this kind of argument.”  The conclusion that something is “unconstitutional” is not shorthand for “something the Supreme Court will (or even could) invalidate.”  It simply means “not consistent with the Constitution’s principles.”  Period.

Sure, the House could choose Gingrich speaker.  And Obama could bomb Libya without congressional authorization.  (Hey, wait . . .)  Both are equally unconstitutional.  Both are things the Supreme Court can’t do a blessed thing about.

As I said above, some things are simply understood and not made explicit in the Constitution’s text.  The speaker must be a member, if the House is to act in a manner consistent with the text’s principles.  Suggesting as I did that if Gingrich could be speaker, so could the treasury secretary, was not “trying to cross a canyon in two jumps.”  It was simply an observation that if any non-member can be speaker, then any non-member can be speaker—even a person whose filling the role would be wildly inconsistent with the separation of powers.

Let me throw out another example of what I called “parlor-trick textualism.”  Federal judges, including Supreme Court justices, have no qualifications specified in the Constitution.  The officers we elect have all sorts of qualifications defined there, of citizenship and residence and age.  But a four-year-old girl from Cracow who speaks only Polish is “qualified” to be a justice of the Supreme Court.  Egad.  Why didn’t the framers make sure this could never happen?!  (Notice that our hypothetical child could be speaker, too.)

Because they trusted and presumed that minimally rational presidents and senators (whose qualifications and electoral processes are specified) would nominate and confirm adult, English-speaking, qualified citizens of the United States to be federal judges.

Just like they presumed that the members of the House would always choose one of their own, for good and sufficient constitutional reasons, and so they didn’t have to say so.




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