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## Thursday, October 1, 2015

### The Once and Future Speaker Gingrich

Over at National Review, something of intramural squabble has broken out about the prospect of Newt Gingrich, once the speaker but now a private citizen, being chosen as the successor of John Boehner. The most remarkable part of that squabble is that it is not about the highly debatable likelihood or desirability of the prospect, but the seemingly simple question of its constitutionality.

There are two relevant Constitutional clauses:

• The Chuse Clause: The House of Representatives shall chuse their Speaker and other Officers. U.S. Const. Art. I, sec. 2, cl. 5.
• The Incompatibility Clause: [N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. U.S. Const. Art. I, sec. 6, cl. 2.

Gingrich is today a private citizen; he is neither a member of the House of Representatives, nor the holder of any Office under the United States (which is here understood to mean the executive and judicial branches). The election of Gingrich as the Speaker of the House would not violate the Chuse Clause, because the House would have indeed chosen Gingrich as its Speaker. Nor would it violate the Incompatibility Clause, for Gingrich would be neither a Member of the House nor a holder of any Office under the United States. There being nothing in the Constitution to prohibit Gingrich’s election, it is not unconstitutional.To find something unconstitutional merely because it is disagreeable, rather than contrary to anything in the text, is to go down the path of penumbras and emanations.

Against this seemingly trivial conclusion, Matthew Franck, a conservative professor of political science and usually of reasonable disposition, struggles by offering the following points:

[T]he 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.

Quite so. It was an important victory for the Anti-Royalists that the House of Commons could choose its own speaker, rather than having it imposed by the king. That is why the drafters of the Constitution included at requirement in the text. It was not important that the Speaker must be a member. That is why the drafters did not include that requirement in the text.

[T]raditional practice should probably count for something. Fifty-three people have served as speaker of the House, and all of them have been elected members.

If something has been a traditional practice, there is good reason to believe that there is a good reason for it.This insight, deceptively trivial, can be attributed to both G. K. Chesterton and Friedrich Hayek. So one can agree that there is probably good reason to choose a member of the House as its Speaker. But there is absolutely no inference that anything with a good reason must be a Constitutional requirement.

Before Nancy Pelosi became Speaker, fifty-two people had served as Speaker of the House. Every one of them had been a man. Would Franck infer that her appointment—in addition to its more obvious flaws—was also unconstitutional? If so, why did he not mention that at the time? If not, why not?

If the speaker can be Newt Gingrich, a non-member, it can of course be anyone at all.

How does the premise follow from the conclusion? To contend that a particular $$X$$ may be Speaker, in no way implies that all $$X$$ may be Speaker.

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?

Franck proceeds to the obvious answer by pointing at the Incompatibility Clause. But he does not explain how its language is flexible enough to turn Gingrich, a private citizen, into an officer of the United States, or how it would apply to him, if he is not.

[T]he 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.

That is a fine point. So election of Gingrich as Speaker would probably violate the standing rules of the House. But these rules can be changed and, even if they weren’t, they could not turn a violation of the rules into a violation of the Constitution.

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.)

Franck immediately proceeds to offer the correct answer:

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.

Franck shows good and sufficient reasons. But finding reasons good and sufficient does not turn them into part of the Constitution.