Bench Memos

Speaker Gingrich? Not Really Constitutional

In his regular space nearby, Jonah Goldberg–with the caveat that “as a columnist, I don’t have to stay within the guardrails of the plausible“–proposes that Newt Gingrich be made John Boehner’s successor as speaker of the House of Representatives.  Jonah is quite right to say that “[t]here is nothing in the Constitution that says the speaker must be an elected member of the House.”  As a matter of the simple text of Article I, considered without reference to context, that’s “technically” true.  It says: “The House of Representatives shall chuse their Speaker . . .” and that’s it.

The Articles of Confederation were more explicit about who could serve in the presiding chair, saying that the Congress had the power to “appoint one of their number to preside.”  But there is no reason to believe that the framers intended, by the more stripped-down language of the Constitution, to open the office of speaker to non-members.  (Ditto for the president pro tempore of the Senate, by the way, who is not explicitly described as a senator but has always been one.)  And traditional practice should probably count for something.  Fifty-three people have served as speaker of the House, and all of them have been elected members.

As David Forte explains in the Heritage Guide to the Constitution, the power to place one of its own members in the speaker’s chair was a great victory for the House of Commons in the British Parliament, after a long struggle with the Crown.  This was the background of the “chuse their Speaker” clause in Article I.  And for the sake of the House’s autonomy, it would be best to consider the matter closed by historic practice.

Here’s why.  If the speaker can be Newt Gingrich, a non-member, it can of course be anyone at all.  Why not a senator, then?  Why not a cabinet officer from the executive branch?  Why not the vice president, or even the president?  One of the recurring dreams of the Progressive movement, and of its latter-day heirs, has been to move the United States away from its clunky, inefficient separation of powers and toward a parliamentary system, by beginning to blur the lines between the branches of government.  Why, for instance, shouldn’t a president be able to staff his cabinet with department heads who are also members of Congress?

One clause of the Constitution has always stood in the way–Article I, section 6, clause 2:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Focus on the second half of this clause, after the semicolon, sometimes called the Incompatibility Clause.  This underappreciated language has been one of the principal bulwarks of the separation of powers in our history.  Under its terms there can be no simultaneous service in both the legislative and executive branches, or in both the legislative and judicial branches.  (The consistent usage of the Constitution is to call “officer” only those who serve in the executive and judicial branches, while in Congress it is always “member.”)  Interestingly enough, simultaneous service in the executive and judicial branches is perfectly all right, and has happened in some notable cases.  

Now consider the ramifications of the “Speaker Gingrich Part Deux” scenario.  Gingrich is a private citizen.  But as I noted already, if any non-member can be speaker, that goes for public officials too.  Since the House has the power of the purse, why not make the secretary of the Treasury the speaker as well?  That would make a lot of things run more smoothly!  Such an election would not be “technically” barred by the clause quoted above from Article I, section 6, because that officer of the executive branch would not become a member of the House by virtue of his appointment as speaker.  But this would be a disastrous breach of the separation of powers, from the point of the view of the framers.  Unite this clause with the “shall chuse their Speaker” clause, and the purpose is clear.  Cabinet officers stay rooted in the executive branch, while speakers rise up from their native soil of the House.

The point is that parlor-trick textualism is not the most sensible way to interpret the Constitution.  Text must be placed in context, and context must be situated in history, and the historic purposes of the Constitution’s makers must be what we seek to understand.  Sorry, Jonah, but this idea went outside the possible as well as the plausible.


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