John C. Eastman
October 16, 2015
Many instant experts in the press, speculating on John Boehner’s successor, have stated matter-of-factly that the Speaker of the U.S. House of Representatives does not necessarily have to be a member of the House. This is one more item to file under the heading, “Widely Believed, But Just Not So.”
To be sure, the Constitution does not explicitly state that the Speaker of the House of Representatives has to be a member of the House of Representatives. Because Article I, Section 2, Clause 5 merely says that “The House of Representatives shall chuse their Speaker and other Officers,” some constitutional “authorities” have apparently concluded from the absence of a specific prohibition that the House can pick anyone it wants as Speaker. Under that reasoning, the House could apparently name a rhinoceros speaker—I mean a real one, not the “Republican In Name Only” kind—since the Constitution does not explicitly prohibit that either.
This counterintuitive notion traces to a 1947 floor statement by Senator Richard Russell of Georgia, calling for the President Pro Tem of the Senate to be listed ahead of the Speaker of the House in the line of presidential succession. President Truman had suggested that the Speaker should come immediately after the Vice President because “the Members of the Senate are not as closely tied in by the elective process to the people as are the Members of the House of Representatives.” Russell acknowledged that the President Pro Tem of the Senate might have been appointed to fill a vacancy rather than elected, but he countered—citing no supporting authority—that the Speaker need not even be a member of the House.
House parliamentarian, Floyd M. Riddick, picked up that assertion in a 1949 book, The United States Congress: Organization and Procedure. He wrote, “Legally the House is absolutely free in making its choice; the Speaker does not have to be a representative.” That claim—also unsupported by any authority, constitutional analysis, case law, or historical assessment—continues to be repeated by the Clerk of the House to this day, whose website similarly asserts that “the Constitution does not require the Speaker to be a Member of the House.”
Howard M. Wasserman, a visiting assistant professor at Florida State University College of Law, made the same argument in a 2002 Kentucky Law Journal article, “Structural Principles and Presidential Succession.” In support of his assertion that “the Constitution does not, in fact, require that the Speaker of the House actually be an elected member of that body,” Professor Wasserman merely cited Article I, Section 2, Clause 5 itself and an earlier law review article published in the Georgetown Law Journal. But that article, by two attorneys named William F. Brown and Americo R. Cinquegrana, simply recounted Senator Russell’s statement without endorsing it or offering any other authority supporting it. Indeed, by citing a statement by Representative and Judiciary Committee Chairman Hatton William Sumners two years earlier, Brown and Cinquegrana intimated that the very idea that the Speaker need not be a member of the House was “far-fetched and purely academic.” Wasserman’s claim was nevertheless repeated two years later by Paul Taylor, chief counsel to the House Subcommittee on the Constitution, who wrote in a 2004 article published in the Syracuse Law Review that “the Constitution does not require that the Speaker of the House be a Member of Congress.” Another law review article, by Roy E. Brownell II, endorsed the idea in 2014: “The Speaker is not constitutionally required to be a representative.”
Representative Sumners was right in 1945 when he said this idea was “far-fetched and academic.” To his knowledge, never in the whole history of legislative government extending more than 1,000 years, including England’s House of Commons, the U.S. House of Representatives, and legislature in any state of the Union, had there ever been a Speaker “who was not a member of the body electing him.” Representative Sumners added that “nobody drafting a constitution or statute under a Constitution would ever imagine or conceive that a situation would arise under which it would be necessary to guard by legislative enactment or constitutional provision against somebody other than a member of a legislative body being elected its presiding officer.”
Former parliamentarian Riddick acknowledged this unbroken history: immediately after asserting that the Speaker need not be a member of the House, he added that “no person has ever been elevated to the Speakership who was not a Representative.” And the current clerk likewise notes that “all Speakers have been Members.” One would think that a two-century long historical practice might at least suggest that only members of the House could actually be its Speaker, particularly given the Supreme Court’s oft-repeated view, dating all the way back to M’Culloch v. Maryland in 1819, that longstanding practice shapes constitutional meaning.
That the leader of a representative body must actually be a member of that body dates back centuries, well before the Constitution created the U.S. House of Representatives in 1787. Northwestern Law Professor Steve Calabresi, writing on “The Political Question of Presidential Succession” in a 1995 Stanford Law Review article, noted: “[S]ince 1377 the English practice seems to have been that the Speaker of the House of Commons must also be a member of the House of Commons.” Calabresi’s claim was well supported by historical scholarship dating back more than a century.
This conclusion also follows the less ambiguous language in the Articles of Confederation from which the constitutional provision providing that the House choose its Speaker was drawn. Article IX of the Articles gave Congress the authority “to appoint one of their members” as President of the Congress. Professors Akhil and Vikram Amar have argued that, textually, the word “their” in Article I, Section 2, Clause 5 of the Constitution arguably produces the same result. “[O]ne could counterargue,” they stated, “that when the House chooses ‘their Speaker’ under Article I, Section 2, they must choose one of themselves.” This assessment is consistent with the common sense of the matter. As another author, Vasan Kesavan, has noted, “Each parliamentary body has, almost by definition, the right to choose its presiding officer and other officers from one of its own.”
So please, everyone, quit with this nonsensical notion that someone who is not a member of the House of Representatives can be its Speaker, and get on with choosing the next Speaker from among the Representatives who are members of House.