Bench Memos

Not McCarthy? Fine, but No Non-Members Need Apply

At the Library of Law & Liberty earlier today, Connor Ewing takes issue with my argument in this space last week that a person who is not a representative elected to membership in the House of Representatives cannot be speaker of the House (contrary to the suggestion of Jonah Goldberg).  Ewing wrote before Kevin McCarthy’s surprise announcement today that he will withdraw from consideration for the speakership, so this question—whom can the members choose?—has become interesting all over again.

It doesn’t seem, from Ewing’s post, that he had a look at Jonah’s response to me last week, or at my rejoinder to him.  Be that as it may, his argument may be encapsulated as follows: 1) the clause that says the House “shall chuse their Speaker” does not literally limit the choice to members; 2) but public officials in other branches like the executive and legislative, contrary to my argument, could not be speaker because of the Incompatibility Clause; 3) therefore, if I read Ewing correctly, the speaker could be any member, or any non-member who is a private citizen.

I’m afraid that Ewing has misunderstood the use to which I was putting the Incompatibility Clause in my argument.  I agree that the clause prohibits the president, or the treasury secretary, or the Army chief of staff, or the chief judge of the D.C. Circuit, from serving as speaker of the House.  But that is because I read the “chuse their Speaker” clause as referring naturally to the choice of a sitting member of the House!  Anyone who reads that clause otherwise is giving his blessing to the potential service of an executive or judicial officer as speaker.

The reason is simple: the Incompatibility Clause reads, in relevant part, “no Person holding any Office under the United States [i.e., in the executive or judicial branch], shall be a Member of either House during his Continuance in Office.”  If a non-member can be chosen speaker of the House, he does not, upon becoming speaker, also become a member (just as the vice president’s service as president of the Senate does not make him a senator).  One becomes a member by being elected by the people to a seat in the body, representing a state or a part thereof (see Article I, section 2, clause 1).  To repeat for clarity’s sake: a person who was a non-member prior to being elected speaker by the members would continue himself to be a non-member while serving as speaker.

So it is in Ewing’s reading of who is constitutionally eligible to be speaker, that the Incompatibility Clause’s meaning and purpose are vitiated.  It simply wouldn’t apply in the case of a non-member speaker, and so of course the choice could devolve upon a cabinet secretary, or judge, or navy admiral.  Why insist, as Ewing does (on the basis of what, I don’t know), that it must be a private citizen?  Why not a sitting governor, or the mayor of D.C.?  Would the speaker even have to be a citizen?  An adult?  Not if we’re being as absurdly, narrowly “literal” as the “draft Newt” folks are wont to be.

Now return to the speakership clause.  The customary understanding that the speaker must be a member comports with commonsense, natural use of language in context.  If you sponsored a boys’ football team and said to them “choose your captain,” it is hardly likely that they would go outside their ranks to make their choice.  They would be understanding you to require them to choose, from among themselves, the first among equals to stand forth and speak for the whole team.  And they’d be right.  It is just possible that one wiseacre would be tempted to try out “parlor-trick textualism,” as I called it, an overworked literalism that defeats the purpose of what was required of those trusted with a decision.  “How about my little sister?”  But you would be justified in saying, “Pipe down.  You know what I meant.”


Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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