The Speaker of the House
posted by Gerard Magliocca
Last week, Congressman Louie Gohmert of Texas announced that he wanted Newt Gingrich to be the next Speaker of the House. How can that be? The answer is that nothing in the Constitution requires the House to choose one of its own as the Speaker. Nevertheless, what I call “the unwritten unwritten Constitution” imposes such a requirement. (There is a parallel here with the norm that the British Prime Minister must be an MP, though nothing requires that either and, if you go back far enough, there were Lords who were PMs.)
The thought that the House can choose an outsider as its leader draws from parliamentary practice, as there were Speakers of the House of Commons who were not MPs. (Hat tip to Josh Chafetz, the leading expert on all things congressional and parliamentary, for confirming this point for me). Has there ever been a serious push to make a non-member the Speaker of the House of Representatives? Not that I know of, but perhaps this post will flush out some examples.
November 17, 2012 at 5:18 pm
Posted in: Constitutional Law
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Responses (7)
paean - November 17, 2012 at 6:57 pm
Does the Constitution really impose such a requirement though? A fair argument could be made that it’s just longstanding tradition, which as you point out is not unanimous on the subject. Article I, Section 2 also vests the power to choose the Speaker (and other officers) in the House explicitly, suggesting that it’s an unreviewable matter of discretion (aside from the political question issues).
William Baude - November 17, 2012 at 9:13 pm
I suppose you might also note that the Vice President is an officer of the Senate (per Article I, Section 3) despite the fact that he is not an elected member.
Brett Bellmore - November 18, 2012 at 10:23 am
I think we could do without this whole “unwritten constitution” business; The written constitution consists of laws which the government is under legal obligation to follow until duly amended. The unwritten “constitution” is just traditions which lack legal standing, and only last so long as people feel like following them.
Totally different categories.
They can pick anyone at all they want to be speaker. They’re not going to pick Gingrich, but that’s only because they don’t want to.
Joe - November 18, 2012 at 11:05 am
The “written constitution” involves lots of terms that only get meaning from things beyond the four corners of the text* as well as various structural and other principles that also are not expressly written in various respects. So, “just tradition” is quite important here and in fact influences things with clear “legal standing.”
The immediate issue does raise an interesting question but since not once since 1789 was someone chosen from outside the House, tradition has strong force and many understand the office to require pre-existing membership in the House. This is not unreasonable and as a reflection of reality, it is an implicit requirement. The is not as set in stone as other things, but it still pretty important.
I guess we can just ignore that sort of thing, but it doesn’t seem that realistic.
[* e.g., what does 'cruel and unusual' means? What is "usual" is in part a matter of what is the normal "tradition" over a span of time. It is not "just" tradition but gives meat to the term itself]
prometheefeu - November 19, 2012 at 8:35 pm
@Joe:
That the Constitution requires looking at traditions to interprets certain provisions does not mean that other traditions form an “unwritten constitution”. Regardless, this would be a poor candidate for an unwritten constitution. Speakers are chosen from the House for all sorts of political reasons (not least that being in the house probably gives you greater access to those who elect the speaker). But I don’t see any evidence of strong normative value attached to this tradition. If the House deviated, people would be confused, not angry.
Joe - November 20, 2012 at 9:37 am
@prometheefeu
If traditions are used to interpret the Constitution, the traditions themselves are part of the framework of the law overall in practice. I’m not sure what the point is here.
Speakers were chosen from the House from the founding. We can predict (and for such predictions and a $1, we will have a $1) what the people will think if we suddenly change course. It is not out the realm of the possible that people would be angry if a body they are led to believe will be run by someone they voted for is suddenly not.
I myself noted that it was only ‘pretty important’ and yes, other parts of the unwritten constitution, such as a vice president presiding at his/her own impeachment trial would upset more people.
Joe - November 20, 2012 at 9:41 am
edit: replace “run” by per Wikipedia “a leadership position in the majority party and the office-holder actively works to set that party’s legislative agenda; the office is therefore endowed with considerable political power”
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