The Legislature: Historical Overview & Structure - PDF Document

The Legislature Article I: Historical Overview Many issues led the colonists in America to rebel against England. An important one, sometimes neglected in treatments of the American Revolution, was the different ways the British and the colonists thought about legislative bodies such as Parliament....

The Legislature Article I: Historical Overview Many issues led the colonists in America to rebel against England. An important one, sometimes neglected in treatments of the American Revolution, was the different ways the British and the colonists thought about legislative bodies such as Parliament. The British viewed legislatures as “deliberative bodies whose allegiance was to the nation rather than specific constituencies.”2 Underlying this view is the notion of “virtual” representation: “since the interests of all British citizens were represented in Parliament, the citizens themselves did not need to be.” Therefore, the British reasoned, it was unnecessary for the colonists to vote for members of Parliament because they were “virtually represented” within it. The Americans took quite a different stance. To them, legislators “were nothing more and nothing less than agents of their constituents.” As John Adams wrote in 1776, the ideal legislature “should be in miniature an exact portrait of the people at large. It should think, feel, reason and act like them.” 2 We adopt the discussion in this paragraph from Daniel A. Farber and Suzanna Sherry, A History of the American Constitution, 2nd ed. (St. Paul, MN: Thomson/West, 2005), 153–157. During the founding period, the American states created legislatures that reflected some of Adams’s views of representation. Most states provided for short terms of office, with elections typically occurring every other year. They also mandated that legislatures have open sessions and publish their proceedings. Finally, many states actually gave their inhabitants the right to “instruct” their representatives on how to vote on certain issues. These and other measures were designed to keep legislators responsive to their constituents. Concerns about representation at the federal level also were present, as were suspicions about a national government that would be as powerful as England’s. The unicameral Congress created by the Articles of Confederation had few important powers, and many of those it had it could not exercise without state compliance, which it seldom received (see Figure I-1). The problems Congress and the nation faced under the Articles of Confederation made it clear to the delegates attending the Constitutional Convention of 1787 that a very different kind of legislature was necessary if the United States was to endure. But what form would that legislature take? And what powers would it have? These questions produced a great deal of discussion during the convention; in fact, debates over the structure and powers of Congress occupied more than half of the framers’ time. Structure and Composition of Congress The Virginia Plan set the tone for the Constitutional Convention and became the backbone for Article I. Essentially, the plan called for a bicameral (two-house) legislature, with the number of representatives in each house apportioned on the basis of state population. Under this scheme, the lower house (now the House of Representatives) would be elected by the people; the upper house (the Senate) would be chosen by the lower house based on recommendations from state legislatures. The framers dealt with two aspects of the Virginia Plan with relative ease. Almost all agreed on the need for a bicameral legislature. Accord on this point was not surprising: by 1787 only four states had one-house legislatures. The plan for selecting the upper house provoked more discussion. Some delegates thought that having the lower house elect the upper would make the Senate subservient to the House and upset the delicate checks-and-balances system. Instead, the delegates agreed that state legislatures should select the senators. (The Seventeenth Amendment to the Constitution, ratified in 1913, changed the method of selection; senators, like representatives, are now elected by the people.) The third aspect of the Virginia Plan—the composition of the houses of Congress—generated some of the most acrimonious debates of the convention. As historians Alfred Kelly, Winfred Harbison, and Herman Belz put it, Would the constituent units be the states, represented equally by delegates chosen by state legislatures, as the small-state group desired? Or would the constituent element be the people of the United States... with representation in both chambers apportioned according to population, as the large-state group wished?3 3 Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 7th ed. (New York: Norton, 1991), 90. On one level, the answer to this question implicated the straightforward motivation of self-interest. Naturally, the large states wanted both chambers to be based on population because they would send more representatives to the new Congress. The smaller states thought all states should have equal representation in both houses and regarded their plan as the only way to avoid tyranny by the majority. On another level, the issue of composition went to the core of the Philadelphia enterprise. The approach advocated by the small states would signify the importance of the states in the new system of government, while that put forth in the Virginia Plan would suggest that the federal government received its power directly from the people rather than from the states and was truly independent of the states. It is no wonder, then, that the delegates had so much trouble resolving this issue: it defined the basic character of the new government. In the end they took the course of action that characterized many of their decisions—they agreed to disagree. Specifically, the delegates reached a compromise under which the House of Representatives would be constituted on the basis of population, and the Senate would have two delegates from each state. Reaching this compromise was crucial to the success of the convention. Without it, the delegates might have disbanded without framing a constitution. But because the founders split the difference between the demands of the small and large states, they never fully dealt with the critical underlying issue: Do the people or the states empower the federal government? We address the impact of this lingering question on the development of the country in Chapter 6. Here, we note that this question not only has been at the center of many disputes brought to the Supreme Court but also was a leading cause of the Civil War. This compromise has also led to more specific controversies, centering on the very nature of representation. We know that in drafting Article I the framers agreed that representation in the House of Representatives would be based on population. Each state was allotted at least one representative, with additional seats based on the number of persons residing within the state’s boundaries. The exact number of representatives per state was to be determined by a census of the population (beginning within three years of the First Congress and continuing at intervals of every ten years thereafter) and calculated by adding the number of “free persons” and “three-fifths of all other persons” (read: slaves). Passage of the Fourteenth Amendment changed this formula so that Black people would be fully counted, and in 1911 and again in 1929 Congress set the size of the House at 435 members, where it remains today. But even these steps did not end debates over representation. As late as 1992 the State of Montana sued, arguing that the formula Congress used to calculate representation unfairly denied it an additional representative.4 Moreover, recall from the discussion of Baker v. Carr (1962) in Chapter 2 that as population shifts occurred within states in the middle of the twentieth century, some states redrew their congressional district lines. For most, the new maps meant creating greater parity for urban centers as citizens moved out of rural areas. Other states, however, ignored these shifts and refused to reapportion seats. Over time, their failure meant that within a given state it was possible for two districts with large differences in population each to elect one member to the House. Beginning with Baker, the Court heard a series of challenges to legislative malapportionment, eventually creating the “one person, one vote” principle, which holds that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.”5 4 Department of Commerce v. Montana (1992). 5 Wesberry v. Sanders (1964). With the articulation of this principle, the Court settled some controversies: so long as the one person, one vote principle is observed, the Supreme Court generally has allowed states freedom in constructing representational districts for members of the House of Representatives. But, as we noted in Chapter 2, other controversies arose with time, in particular regarding the extent to which states may or should take race into account when they reapportion their districts. According to some analysts, creating districts with high concentrations of historically underrepresented voters is the only way to increase the number of officeholders of color in Congress. Others, including some civil rights advocates, have criticized such efforts, arguing that they do not offer real opportunities for increased minority representation. Even if the numbers of representatives of color grew to approximate the proportions of their respective groups in the general population, the argument goes, these representatives would still be too small in number to have any real clout in the legislature. These critics claim that only through changes in representational and institutional rules can minorities achieve political influence at the national level.6 What is beyond debate is that the House remains predominately white, even as the percentage of lawmakers identifying as Black, Hispanic, Asian/Pacific Islander, or Native American has reached its highest level in history (close to 25 percent).7 6 The Court has wrestled with the constitutional propriety of states purposefully drawing legislative district lines to ensure representation for minorities. During the 1970s and 1980s the Court gave considerable leeway to state legislatures to take race into account. In the 1990s, however, the Court changed course sharply. In a series of cases, the justices ruled that the Constitution is violated when district lines are explainable only in terms of race and when racial factors clearly dominate more-traditional districting criteria. For a full discussion of this issue, see Lee Epstein, Kevin T. McGuire, and Thomas G. Walker, Constitutional Law for a Changing America: Rights, Liberties, and Justice, 11th ed. (Thousand Oaks, CA: CQ Press, 2022), chap. 15. Powers of Congress With the possible exceptions of reapportionment and term limits for members of Congress, which we cover later in the chapter, Americans today rarely debate issues concerning the structure and composition of Congress: most of us simply accept the arrangements outlined in the Constitution. Instead, we tend to concern ourselves with what Congress does or does not do, with its ability to change our lives—sometimes dramatically—through the exercise of its lawmaking powers. Should Congress increase taxes? Provide aid for the homeless? Authorize military action? Such questions—not structural points—generate heated debate among Americans. In 1787 the situation was reversed. The framers argued over the makeup of the legislature but generally agreed about the particular powers it would have. This consensus probably reflected their experience under the Articles of Confederation: severe economic problems due in no small part, as the framers knew, to “congressional impotence.”8 8 Farber and Sherry, A History of the American Constitution, 189. To correct these problems, Article I, Section 8, lists seventeen specific powers the delegates gave to Congress—six of which relate to the economy. Consider the problem of funding the government. Under the Articles of Confederation the legislature could not collect taxes from the people; instead, it had to rely on the less-than-dependable states to collect and forward taxes (from 1781 through 1783, the legislature requested $10 million from the states but received less than $1.5 million). In response, the first power given to Congress in the newly minted Constitution was to “lay and collect taxes.” In addition to the six specific powers dealing with economic issues, Section 8 gives Congress some authority over foreign relations, the military, and internal matters such as the establishment of post offices. The framers obviously agreed that Congress should have these powers, but two others provoked controversy. The first concerned a proposal in the Virginia Plan to give Congress veto authority over state legislation. This idea had the strong support of James Madison, who argued, “[T]he propensity of the States to pursue their particular interests in opposition to the general interest... will continue to disturb the system, unless effectually controuled.” Madison and others who supported the veto proposal were once again reacting to the problems with the Articles of Confederation. Because the federal government lacked coercive power over the states, cooperation among them was virtually nonexistent. They engaged in practices that hurt one another economically and, in general, acted more like thirteen separate countries than a union or even a confederation. But the majority of delegates thought that a congressional veto would “disgust all the States.” Accordingly, they compromised with Article VI, the supremacy clause, which made the Constitution, U.S. laws, and treaties “the supreme law of the land,” binding all judges in all the states to follow them. The second source of controversy was over this question: Would Congress be able to exercise powers that were not listed in Article I, Section 8, or was it limited to those explicitly enumerated? Some analysts would argue that the last clause of Article I, Section 8, the necessary and proper clause, addressed this question by granting Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” But is that interpretation correct? Even after they agreed on the wording of that clause (with little debate), the delegates continued to debate the issue. Delegate James McHenry of Maryland wrote about a conversation that occurred on September 6: “Spoke to Gov. Morris Fitzsimmons... to insert a power... enabling the legislature to erect piers for protection of shipping in winter.... Mr. Gov.: thinks it may be done under the words of [Article I]—‘and provide for the common defense and general welfare.’”9 In other words, Fitzsimmons was arguing that one of Congress’s enumerated powers (to provide for the common defense and general welfare) implied the power to erect piers. Under this argument, then, Congress could assert powers connected to, but beyond, those that were enumerated. 9 Quoted in ibid., 199. Because questions concerning the sources of congressional power and the role of the necessary and proper clause in particular are central to an understanding of the role Congress plays in American society, we shall return to them. At this point, however, we consider the Court’s interpretation of the first parts of Article I, which lay out the structure of Congress and its authority over its own affairs. Congressional Authority over Internal Affairs: Institutional Independence and Integrity While the framers were debating Congress’s structure and composition, they were also thinking about ways to safeguard the independence and integrity of the institution. Included in Article I are provisions dealing with the ability of the chambers to control who joins them and to punish those who do not behave in accord with their norms. Another section, the speech or debate clause, protects members from “harassment” by other institutions. Would the Supreme Court interpret these provisions broadly, to give members of Congress a good deal of leeway, or more narrowly? One way to begin thinking about this question is to consider an interesting connection between the Court and Congress. Although we often conceptualize them as wholly separate entities, almost half the Court’s members have had prior state or federal legislative experience, as Table 3-1 shows. From this, we might think that those justices would empathize with the claims of Congress regarding the need for authority over its own affairs; indeed, the Court generally has acceded to legislative wishes—but not always. As you read what follows, think about the reasons the Court offers for its decisions. Furthermore, take note of the various coalitions that have emerged on different Courts. Have the justices with legislative experience exhibited a greater willingness to defer to Congress than those without this experience? Finally, note that appointing former legislators is mostly a phenomenon of the eighteenth and nineteenth centuries; the most recent justice who had served as a legislator was Sandra Day O’Connor (appointed in 1981). Do you detect a change in deference to Congress as the number of former legislators on the Court has dwindled? Or is there little connection between legislative experience and judicial rulings? Membership in Congress: Seating and Discipline In addition to specifying the structure and composition of Congress, Article I contains the requirements that must be met by all prospective members of the institution: A senator must be at least thirty years old and have been a citizen of the United States not less than nine years (Section 3, Clause 3). A representative must be at least twenty-five years old and have been a citizen not less than seven years (Section 2, Clause 2). Every member of Congress must be, when elected, an inhabitant of the state that he or she is to represent (Section 2, Clause 2; and Section 3, Clause 3). No one may be a member of Congress who holds any other “Office under the Authority of the United States” (Section 6, Clause 2). Finally, Section 3 of the Fourteenth Amendment states that no person may be a senator or a representative who, having previously taken an oath as a member of Congress to support the Constitution, has engaged in rebellion against the United States or given aid or comfort to its enemies, unless Congress has removed such restriction by a two-thirds vote of both houses. With only a few exceptions, these standards have not caused much controversy or litigation. Nor has there been much debate over whether Congress can censure or expel sitting members. The second paragraph of Article I, Section 5, is clear on this point: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a member.” The Court has not dealt directly with a dispute involving the punishment of members, such as censure or expulsion; rather, it has suggested that this is a broad privilege, best left to the judgment of the individual chambers.10 Still “punishment of members” is rare; for example, since 1787 the House has expelled only four members and the Senate, fifteen.11 10 See, for example, In re Chapman (1897). 11 Calculated from the House’s (http://history.house.gov/Institution/Discipline/Expulsion-Censure-Reprimand/) and Senate’s (https://www.senate.gov/artandhistory/history/common/expulsion_cases/intro.htm) Web sites. Where controversy has arisen is over another sentence of Article I, Section 5, which reads, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Several interpretations of this clause are possible. One is that it ought to be read in conjunction with the Article I requirements for members. That is, Congress cannot deny a duly elected person a seat in the institution unless that person fails to meet the specified criteria, such as the age requirement. Another interpretation is that Congress is free to develop additional qualifications, independent of those specified elsewhere in Article I. For the better part of the nation’s history, the Court did not resolve this debate,12 even though Congress occasionally acted as if it could add qualifications or ignore them when they were not met. During the Civil War, Congress enacted the Test Oath Law of 1862, which required incoming members to “swear... that they had never voluntarily borne arms against the United States.” Moreover, as shown in Table 3-2, both the House and the Senate have refused to seat properly elected individuals, sometimes on extraconstitutional grounds. The Senate excluded Philip Thomas of Maryland on loyalty grounds when it was discovered that he had given money to his son when he became a soldier in the Confederate Army. The House refused to seat Brigham H. Roberts of Utah because he had been convicted of violating an antipolygamy law. 12 In the first case excerpted in this chapter, Powell v. McCormack, the House argued that the Court, in Barry v. United States ex rel. Cunningham (1929), suggested that regarding the elections, returns, and qualification of members, each House could “render a judgment which is beyond the authority of any other tribunal to review.” In Powell, the Court rejected this reading of Barry, stating it was not an essential component of the Barry ruling. The Court also pointed to another statement in Barry: that exercise of the “judging” power is subject “to the restraints imposed by or found in the implications of the Constitution.” Powell v McCormack (1969) Facts: As pastor of the Abyssinian Baptist Church in Harlem, one of the nation’s largest congregations, Representative Adam Clayton Powell Jr. had been a force within that New York City community since the 1930s.14 His influence only increased when he was elected to the House in 1944 after receiving nominations from both the Democratic and Republican Parties (though he was elected as a Democrat). He continued to be reelected by wide margins for the next twenty-five years. 14 We derive our account of this case largely from Thomas G. Walker, American Politics and the Constitution (North Scituate, MA: Duxbury Press, 1978), 132. By the early 1960s Powell had acquired sufficient seniority to chair the House Committee on Education and Labor, but his relations with his colleagues were troubled. Some House members disliked his opulent, unconventional lifestyle, his unpredictable leadership, and his use of the media to suit his political ends. In addition, Powell became entangled in various legal controversies; for example, he refused to pay damages assessed against him in a defamation of character suit and actively sought to avert efforts to compel him to pay. The Eighty-Ninth Congress (1965–1966) launched an inquiry into Powell’s activities, which yielded two major violations of House rules: Powell had used federal monies to fly a woman staff member with him on trips to his vacation home in the Bahamas and to pay his former wife a yearly salary of $20,000, even though she did not work in either his district or his Washington office, in accordance with law. Powell was reelected in November 1966, but the House refused to seat him pending further investigation. Four months later, in March 1967, the new investigation reached two conclusions. First, from a constitutional standpoint, Powell met the requirements for office: he was older than twenty-five, had been a citizen of the United States for seven years, and was an inhabitant of New York. Second, Powell had sought to evade the fine associated with the defamation of character offense, had misused public funds, and had filed false expenditure reports. The committee recommended that Powell be seated as a member of Congress but that he be censured by the House, fined $40,000, and deprived of his seniority. The House rejected that recommendation and passed, 307–116, a resolution to exclude Powell from the House and direct Speaker John McCormack to notify the governor of New York that the seat was vacant. Powell and thirteen of his constituents responded by filing a lawsuit against McCormack and other members of the House. They claimed that the House’s refusal to seat Powell violated the qualifications clause of the Constitution Arguments: For the petitioner, Adam Clayton Powell Jr.: Because Powell meets the requirements for office, the House had no choice but to seat him. Article I, Section 5, which says, “Each House shall be the judge of the Elections, Returns and Qualifications of its own Members,” is not implicated. It gives Congress no authority to exclude members who met the constitutional standards for office. It was the intent of the framers that Congress was to have no power to alter, add to, vary, or ignore constitutional qualification for membership. This Court has consistently emphasized that the right of the people to choose freely their representatives is the essence of a democratic society. For the respondents, John W. McCormack et al.: The Court should read the qualifications clause and Section 5 separately. The action taken by the House was a proper exercise of the powers delegated to it by the Constitution under Section 5. This dispute presents a political question, which the Supreme Court should refrain from answering. Article I, Section 5, shows a textually demonstrable constitutional commitment to the House of the adjudicatory power to determine Powell’s qualifications. Moreover, resolving this dispute would create a potentially embarrassing confrontation between the courts and Congress. Mr. Chief Justice Warren Delivered the Opinion of the Court. After certiorari was granted, respondents filed a memorandum suggesting that... the case be dismissed as moot. On January 3, 1969, the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. Respondents insist that [because] Powell has now been seated, his claims are moot. Petitioners counter that [several] issues remain unresolved... [including]... whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell’s claim for back salary remains viable even though he has been seated in the 91st Congress, and thus find it unnecessary to determine whether the other issues have become moot. Respondents maintain that [this case] presents only a political question. It is well established that the federal courts will not adjudicate political questions. In Baker v. Carr, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government.... [Respondents contend that] this case presents a political question because under Art. I, §5, there has been a “textually demonstrable constitutional commitment” to the House of the “adjudicatory power” to determine Powell’s qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member. In order to determine the scope of any “textual commitment” under Art. I, §5, we necessarily must determine the meaning of the phrase to “be the Judge of the Qualifications of its own Members.”... Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.... Petitioners argue that the proceedings manifest the Framers’ unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct. The Convention opened in late May 1787.... On August 10, the Convention considered the Committee of Detail’s proposal that the “Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House....” The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest “an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect.... It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of [a weaker] faction.”... Madison [also] referred to the British Parliament’s assumption of the power to regulate the qualifications of both electors and the elected and noted that “the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.” Shortly thereafter, the Convention rejected... the Committee’s proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be “the judge of the... qualifications of its own members.” One other decision made the same day is very important to determining the meaning of Art. I, §5. When the delegates reached the Committee of Detail’s proposal to empower each House to expel its members, Madison “observed that the right of expulsion... was too important to be exercised by a bare majority of a quorum: and in emergencies [one] faction might be dangerously abused.” He therefore moved that “with the concurrence of two-thirds” be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate.... The importance of this decision cannot be overemphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote.... Thus, the Convention’s decision to increase the vote required to expel, because that power was “too important to be exercised by a bare majority,” while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted.... As clear as these statements appear, respondents dismiss them as “general statements... directed to other issues.” They suggest that far more relevant is Congress’ own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their failure to meet the Constitution’s standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution. Congress was first confronted with the issue in 1807, when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the [chairman of the] House Committee of Elections [explained]: “The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them.... Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. At the conclusion of a lengthy debate... the House agreed by a vote of 89 to 18 to seat Congressman McCreery. There was no significant challenge to these principles for the next several decades. They came under heavy attack, however, “during the stress of civil war [but initially] the House of Representatives declined to exercise the power [to exclude], even under circumstances of great provocation.” The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war’s wake. From that time until the present, congressional practice has been erratic; and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Constitution, there were frequently vigorous dissents.... Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress’ own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight.... And, what evidence we have of Congress’ early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution’s requirements for membership. Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress’ power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton’s words, “that the people should choose whom they please to govern them.” As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning.... Moreover, it would effectively nullify the Convention’s decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote. For these reasons, we have concluded that Art. I, §5, is at most a “textually demonstrable commitment” to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the “textual commitment” formulation of the political question doctrine does not bar federal courts from adjudicating petitioners’ claims....... Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.... It is so ordered. MR. JUSTICE STEWART, Dissenting. I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception. The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners’ prayer for a judicial decree... commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.... [O]n January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Chief Justice Earl Warren’s holding in Powell is indisputable: because Powell was duly elected and because he met the constitutional standards for membership, the House could not refuse to seat him. (For Powell’s fate after the Court’s decision, see Box 3-1.) As Warren emphatically noted, “Congress is limited to the standing qualifications prescribed in the Constitution.” Note that Warren, on the basis of the words of the Constitution and the intent of its framers, rejected McCormack’s political question argument. But recall Chief Justice William H. Rehnquist’s decision in Nixon v. United States (1993) (excerpted in Chapter 2), which used similar materials to find that Nixon’s suit raised a political question that the Court would not address. Are the two reconcilable or contradictory? Another question to ask yourself about Powell concerns its relevance for questions about congressional term limits, specifically: Does the U.S. Constitution give states the power to enact term limits for members of the U.S. Congress? Opponents of term limits point to Article I’s qualification clauses and use Powell to argue that those clauses fix the requirements for office—requirements that neither Congress nor the states may alter. Supporters, as we note below, offer a number of counterarguments to Powell. In 1995 the Supreme Court entered the fray in U.S. Term Limits, Inc. v. Thornton, excerpted below. While reading Justice John Paul Stevens’s opinion for the majority, compare it with Chief Justice Warren’s in Powell. Does the majority’s rationale in U.S. Term Limits square with Warren’s reasoning? Also pay close attention to how both the majority and dissenting opinions deal with arguments following from originalism. Is U.S. Term Limits an example of the difficulty of applying this mode of analysis to actual cases? Finally, consider this question: Would the Court have arrived at a different answer had the U.S. House of Representatives voted to propose a term limits amendment? Box 3-1 Aftermath... Adam Clayton Powell Jr. WHILE the House of Representatives debated what to do with him, Adam Clayton Powell Jr. spent most of 1967 on the island of Bimini in the Bahamas. He was unable to return to New York because of his refusal to pay court-ordered damages in a 1963 libel case and a pending contempt of court charge. He ultimately raised sufficient funds to satisfy the judgment and settled the contempt matter. He ran for his vacated congressional seat in a special election in April 1967 and again in November 1968 regular elections, winning overwhelmingly both times. In January 1969, as the Supreme Court was about to hear arguments in the lawsuit challenging his 1967 exclusion from Congress, the House agreed to seat Powell but stripped him of his seniority and fined him $25,000 for misuse of funds. As a result, Powell lost his position as chair of the House Committee on Education and Labor, a primary source of his political power. About this same time Powell was diagnosed with cancer. Weakened by treatments for the disease, he ran for reelection in 1970 but was defeated by a 150-vote margin in the Democratic primary by Charles Rangel. The loss ended Powell’s quarter-century of service in Congress. In 1971 Powell, in declining health, retired from the pulpit of Harlem’s Abyssinian Baptist Church and wrote his autobiography. He died on April 4, 1972, in Miami, Florida, at age sixty-four. Source: American National Biography, vol. 17 (New York: Oxford University Press, 1999), 773–775. Chief Justice Earl Warren’s holding in Powell is indisputable: because Powell was duly elected and because he met the constitutional standards for membership, the House could not refuse to seat him. (For Powell’s fate after the Court’s decision, see Box 3-1.) As Warren emphatically noted, “Congress is limited to the standing qualifications prescribed in the Constitution.” Note that Warren, on the basis of the words of the Constitution and the intent of its framers, rejected McCormack’s political question argument. But recall Chief Justice William H. Rehnquist’s decision in Nixon v. United States (1993) (excerpted in Chapter 2), which used similar materials to find that Nixon’s suit raised a political question that the Court would not address. Are the two reconcilable or contradictory? Another question to ask yourself about Powell concerns its relevance for questions about congressional term limits, specifically: Does the U.S. Constitution give states the power to enact term limits for members of the U.S. Congress? Opponents of term limits point to Article I’s qualification clauses and use Powell to argue that those clauses fix the requirements for office—requirements that neither Congress nor the states may alter. Supporters, as we note below, offer a number of counterarguments to Powell. In 1995 the Supreme Court entered the fray in U.S. Term Limits, Inc. v. Thornton, excerpted below. While reading Justice John Paul Stevens’s opinion for the majority, compare it with Chief Justice Warren’s in Powell. Does the majority’s rationale in U.S. Term Limits square with Warren’s reasoning? Also pay close attention to how both the majority and dissenting opinions deal with arguments following from originalism. Is U.S. Term Limits an example of the difficulty of applying this mode of analysis to actual cases? Finally, consider this question: Would the Court have arrived at a different answer had the U.S. House of Representatives voted to propose a term limits amendment? US Term Limits Inc. v Thornton (1995) Facts: In 1990 Colorado became the first state to limit terms for federal officeholders. Subsequently, twenty-three additional states passed term limit initiatives. U.S. Term Limits involved one of those initiatives. It originated in Arkansas, where in 1992 voters approved an amendment to the state constitution (Amendment 73) prohibiting from the ballot anyone seeking reelection who previously had served two terms in the U.S. Senate or three terms in the U.S. House of Representatives. It permitted anyone to be elected as a write-in candidate, presumably as a way of allowing for the reelection of a popular incumbent. The amendment was to apply to all persons seeking reelection after January 1, 1993. About two months before that date, the League of Women Voters and various citizens of Arkansas, including U.S. Representative Ray Thornton, filed suit asking a state court to declare the amendment unconstitutional. Among the arguments they made in this court and later in the Arkansas Supreme Court was that Amendment 73 violated Article I of the U.S. Constitution. In particular, based on Powell v. McCormack, they claimed that the federal Constitution establishes the sole qualifications for federal office, and the states may not alter them. Arkansas and U.S. Term Limits, an organization supporting the amendment, responded by pointing to Section 4 of Article I: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” In their view, this section—not the qualifications clauses—was applicable because term limits would regulate access to the ballot, not the qualifications for office. They further suggested that Powell spoke only about the ability of the U.S. House of Representatives, not of the states, to set qualifications. Finally, because the Constitution does not explicitly prohibit the states from setting qualifications for office, it is a power reserved to them under the Tenth Amendment. The Arkansas courts disagreed. The lower court struck down the amendment as a violation of Article I, and in 1994 the state supreme court affirmed. According to that court, “The qualifications clauses fix the sole requirement for congressional service. This is not a power left to the states.” With this defeat in hand, amendment proponents appealed to the U.S. Supreme Court, which agreed to hear the case. Arguments: For the petitioners, U.S. Term Limits, Inc., et al.: Amendment 73 does not set a qualification for office. Although it is designed to lessen the overwhelming election advantages enjoyed by incumbents, it does so only by not continuing to print such incumbents’ names on ballots. It does not disqualify them from running, being elected, or serving in office. As a result, it is clear that Amendment 73 does not impose an additional qualification for congressional office. Qualifications for office are those attributes that are legal prerequisites to eligibility for office. Ballot access restrictions such as Amendment 73 are not qualifications. Even if the Arkansas Supreme Court was correct in its assertion that Amendment 73 added qualifications for holding congressional office, Article I still would not be violated. Article I, in both Sections 2 and 4, explicitly assigns the states broad power over congressional elections.15 15 See also Table 1-1 in Chapter 1, which provides additional arguments made in this case. For the respondents, Ray Thornton et al.: During the debates over ratification of the Constitution, opponents mounted unsuccessful efforts in several states to provide for term limits for members of Congress—a limitation the framers rejected during the Constitutional Convention. This Court acknowledged in Powell v. McCormack that the history surrounding the drafting and adoption of Article I reinforces what the text and structure reveal—that the framers eliminated term limits and other limitations and prescribed only a few and exclusive qualifications to ensure voters the widest possible choice of federal representatives. Amendment 73 seeks to circumscribe the choice of individual voters in federal elections and to disable permanently a specific class of candidates for Congress. Justice Stevens Delivered the Opinion of the Court. Today’s cases present a challenge to an amendment to the Arkansas State Constitution that prohibits the name of an otherwise eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The Arkansas Supreme Court held that the amendment violates the Federal Constitution. We agree with that holding. Such a state-imposed restriction is contrary to the “fundamental principle of our representative democracy,” embodied in the Constitution, that “the people should choose whom they please to govern them.” Powell v. McCormack (1969). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.... As the opinions of the Arkansas Supreme Court suggest, the constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States from adding to or altering the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members. Twenty-six years ago... Powell v. McCormack... establishe[d] two important propositions: first, that the “relevant historical materials” compel the conclusion that, at least with respect to qualifications imposed by Congress, the Framers intended the qualifications listed in the Constitution to be exclusive; and second, that that conclusion is equally compelled by an understanding of the “fundamental principle of our representative democracy... ‘that the people should choose whom they please to govern them.’”... Unsurprisingly, the state courts and lower federal courts have similarly concluded that Powell conclusively resolved the issue whether Congress has the power to impose additional qualifications. [And] we reaffirm that the qualifications for service in Congress set forth in the text of the Constitution are “fixed,” at least in the sense that they may not be supplemented by Congress. Our reaffirmation of Powell does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications.... We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the “original powers” of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and that the Framers thereby “divested” States of any power to add qualifications.... Contrary to petitioners’ assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners’ Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only “reserve” that which existed before. As Justice Story recognized, “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the Constitution does not delegate to them.... No state can say, that it has reserved, what it never possessed.”... With respect to setting qualifications for service in Congress, no such right existed before the Constitution was ratified.... [T]he framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States. In that National Government, representatives owe primary allegiance not to the people of a State but to the people of a Nation.... In short, as the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution.... In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist. Even if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the “basic principles of our democratic system” all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.... The available affirmative evidence indicates the Framers’ intent that States have no role in the setting of qualifications.... We find compelling the complete absence in the ratification debates of any assertion that States had the power to add qualifications. In those debates, the question whether to require term limits, or “rotation,” was a major source of controversy. The draft of the Constitution that was submitted for ratification contained no provision for rotation.... At several ratification conventions, participants proposed amendments that would have required rotation. The Federalists’ responses to those criticisms and proposals addressed the merits of the issue, arguing that rotation was incompatible with the people’s right to choose.... Hamilton argued that the representatives’ need for reelection rather than mandatory rotation was the more effective way to keep representatives responsive to the people, because “when a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument.” Regardless of which side has the better of the debate over rotation, it is most striking that nowhere in the extensive ratification debates have we found any statement by either a proponent or an opponent of rotation that the draft constitution would permit States to require rotation for the representatives of their own citizens.... Our conclusion that States lack the power to impose qualifications vindicates the same “fundamental principle of our representative democracy” that we recognized in Powell, namely that “the people should choose whom they please to govern them.”... [S]tate-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, also violate [an] idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people....The Congress of the United States... is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people Petitioners argue that, even if States may not add qualifications, Amendment 73 is constitutional because it is not such a qualification, and because Amendment 73 is a permissible exercise of state power to regulate the “Times, Places and Manner of Holding Elections.” We reject these contentions. Unlike §1 and §2 of Amendment 73, which create absolute bars to service for long-term incumbents running for state office, §3 merely provides that certain Senators and Representatives shall not be certified as candidates and shall not have their names appear on the ballot. They may run as write-in candidates and, if elected, they may serve. Petitioners contend that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is therefore consistent with the Constitution.... We need not decide whether petitioners’ narrow understanding of qualifications is correct because, even if it is, Amendment 73 may not stand. As we have often noted, “‘constitutional rights would be of little value if they could be... indirectly denied.’” The Constitution “nullifies sophisticated as well as simple-minded modes” of infringing on Constitutional protections. In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly.... Indeed, it cannot be seriously contended that the intent behind Amendment 73 is other than to prevent the election of incumbents. The preamble of Amendment 73 states explicitly: “The people of Arkansas... herein limit the terms of elected officials.” Sections 1 and 2 create absolute limits on the number of terms that may be served. There is no hint that §3 was intended to have any other purpose.... The merits of term limits, or “rotation,” have been the subject of debate since the formation of our Constitution, when the Framers unanimously rejected a proposal to add such limits to the Constitution. The cogent arguments on both sides of the question that were articulated during the process of ratification largely retain their force today.... Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate. We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather—as have other important changes in the electoral process—through the Amendment procedures set forth in Article V. The judgment is affirmed. It is so ordered. JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JUSTICE O’CONNOR, and JUSTICE SCALIA join, dissenting. It is ironic that the Court bases today’s decision on the right of the people to “choose whom they please to govern them.” Under our Constitution, there is only one State whose people have the right to “choose whom they please” to represent Arkansas in Congress. The Court holds, however, that neither the elected legislature of that State nor the people themselves (acting by ballot initiative) may prescribe any qualifications for those representatives. The majority therefore defends the right of the people of Arkansas to “choose whom they please to govern them” by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State. I dissent. Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.... Because the majority fundamentally misunderstands the notion of “reserved” powers, I start with some first principles. Contrary to the majority’s suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so. Our system of government rests on one overriding principle: All power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of “reserved” powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole. The ratification procedure erected by Article VII makes this point clear. The Constitution took effect once it had been ratified by the people gathered in convention in nine different States. But the Constitution went into effect only “between the States so ratifying the same,” Art. VII; it did not bind the people of North Carolina until they had accepted it. In Madison's words, the popular consent upon which the Constitution's authority rests was “given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.” The Federalist No. 39 When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers and they affirmatively conferred certain powers upon the Federal Government. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: the Federal Government’s powers are limited and enumerated.... As far as the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the States enjoy it. These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States “are reserved to the States respectively, or to the people.” With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: it is up to the people of each State to determine which “reserved” powers their state government may exercise.... The majority [announces] an enormous and untenable limitation on the principle expressed by the Tenth Amendment. According to the majority, the States possess only those powers that the Constitution affirmatively grants to them or that they enjoyed before the Constitution was adopted; the Tenth Amendment “could only ‘reserve’ that which existed before.”... Given the fundamental principle that all governmental powers stem from the people of the States, it [is] incoherent to assert that the people of the States could not reserve any powers that they had not previously controlled. The Tenth Amendment’s use of the word “reserved” does not help the majority’s position. If someone says that the power to use a particular facility is reserved to some group, he is not saying anything about whether that group has previously used the facility. He is merely saying that the people who control the facility have designated that group as the entity with authority to use it. The Tenth Amendment is similar: the people of the States, from whom all governmental powers stem, have specified that all powers not prohibited to the States by the Federal Constitution are reserved “to the States respectively, or to the people.”... I take it to be established, then, that the people of Arkansas do enjoy “reserved” powers over the selection of their representatives in Congress.... Whatever one might think of the wisdom of this arrangement, we may not override the decision of the people of Arkansas unless something in the Federal Constitution deprives them of the power to enact such measures. The decision in U.S. Term Limits v. Thornton, coupled with the Powell ruling, settled the issue of qualifications for congressional office. The Constitution’s age, residency, and citizenship requirements are a complete statement of congressional eligibility standards. Neither Congress nor the states may add to or delete from those requirements. According to the Court, such alterations to the requirements for membership in the federal legislature could be imposed only by constitutional amendment. Still, and however settled the matter appears to be, it is worth noting that, with Stephen Breyer’s announced retirement in 2022, only one member of the U.S. Terms Limits Court remains: Clarence Thomas. Assuming that state legislators know that some newer members—especially Samuel Alito and the three Trump appointees—often agree with Thomas on constitutional questions, perhaps we have not heard the last on term limits. Speech or Debate Clause The Court’s reading of the Constitution in Powell protects those who have been duly elected to Congress and meet the qualifications of office from being excluded by members of their own branch; and U.S. Term Limits says that the states cannot limit the terms of office of members of the House or Senate. The Constitution also contains a safeguard against harassment or intimidation by the executive branch. Article I, Section 6, specifies that [t]he Senators and Representatives... shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. Called the speech or debate clause, this privilege of membership derives from British practice. The English Parliament, during its struggles with the Crown, asserted that its members were immune from arrest during its sessions, and the English Bill of Rights embodies this guarantee. The importance of the speech or debate clause’s protection is undeniable: without it, a president could order the arrest of, or otherwise intimidate, members of Congress who disagree publicly with the administration. The framers thought the statement was necessary “to protect the integrity of the legislative process by insuring the independence of individual legislators.”16 Other countries apparently share this sentiment. Whether in their constitutions or by law, many democracies throughout the world provide similar protection for their legislators. 16 United States v. Brewster (1972). The language of Article I, Section 6 of the U.S. Constitution has generated two kinds of constitutional questions: Who is protected, and what is protected? The Court took a stab at addressing the second question in Kilbourn v. Thompson (1881). Though the justices dealt primarily with the scope of congressional investigations, they noted that the clause extends to written reports presented... by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session [of Congress] by one of its members in relation to the business before it. With only some minor modifications, Kilbourn remained the Court’s most significant statement on the clause until 1972, when Gravel v. United States was decided. This case had important implications for the two kinds of questions arising out of Article I, Section 6: Who is protected, and what is protected? Gravel v United States (1972) Facts: On June 29, 1971, Senator Mike Gravel (D-Alaska) held a public meeting of the Subcommittee on Buildings and Grounds, which he chaired. Before the hearing began, Gravel made a statement about the Vietnam War, noting that it was “relevant to his subcommittee... because of its effects upon the domestic economy and... the lack of federal funds to provide for adequate public facilities.” He then read portions of a classified government document, now known as the Pentagon Papers, that provided a history of U.S. involvement in the war. After he finished, Gravel introduced the forty-seven-volume document into the committee’s record and “arranged, without any personal profit to himself, for its verbatim publication by Beacon Press,” a publishing division of the Unitarian Universalist Association. At the time, the media also reported that members of Gravel’s staff had talked with Howard Webber, director of MIT Press, about possible publication of the documents. The Justice Department began an investigation to determine how the Pentagon Papers had been released. It requested a district court judge to convene a grand jury, which in turn subpoenaed Dr. Leonard Rodberg, an aide to Senator Gravel; Webber; and, later, the publisher of Beacon Press. Rodberg and Gravel asked the court to quash the subpoena. In their view, U.S. attorneys “intended to interrogate Dr. Rodberg” about “the actions of Senator Gravel and his aides in making available” the Pentagon Papers. The government initially rejected all of Gravel’s claims; it even argued that Gravel’s actions remained outside constitutional protections. By the time the case reached the Supreme Court, however, the government had limited its charges to Gravel’s aide and the publisher. Even so, Gravel v. United States continued to raise the classic questions: Who is covered, and what is covered under the speech or debate clause? Arguments: For the petitioner, Mike Gravel: The interrogation of Rodberg would violate the speech or debate clause because its scope extends to aides. The realities of the modern-day legislative process require members of Congress to seek advice and assistance from their staff. Because forcing Rodberg to testify would be tantamount to having Gravel do so, both are protected. Forcing Webber and the publisher of Beacon Press to testify also would violate the speech or debate clause. Gravel’s arrangements for private publication of the documents come under the protection of the speech or debate clause because those documents had been introduced in Congress. For the respondent, United States: The language of the speech or debate clause, past precedents, and the intent of the framers all point to the same conclusion: its reach covers neither congressional aides nor arrangements with private publishers, even for material introduced into a subcommittee record. Abuses can arise if members of the House and the Senate have the power to exempt others from criminal or civil laws. Opinion of the Court by Mr. Justice White... [T]he United States strongly urges that because the Speech or Debate Clause confers a privilege only upon “Senators and Representatives,” Rodberg himself has no valid claim to constitutional immunity from grand jury inquiry. In our view, both courts below correctly rejected this position. We agree with the Court of Appeals that for the purpose of construing the privilege a Member and his aide are to be “treated as one.”... [I]t is literally impossible, in view of the complexities of the modern legislative process,... for Members of Congress to perform their legislative tasks without the help of aides and assistants; the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos; and that if they are not so recognized, the central role of the Speech or Debate Clause—to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary—will inevitably be diminished and frustrated.... Rather than giving the clause a cramped construction, the Court has sought to implement its fundamental purpose of freeing the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator. We have little doubt that we are neither exceeding our judicial powers nor mistakenly construing the Constitution by holding that the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.... The United States fears the abuses that history reveals have occurred when legislators are invested with the power to relieve others from the operation of otherwise valid civil and criminal laws. But these abuses... are for the most part obviated if the privilege applicable to the aide is viewed... as the privilege of the Senator, and invocable only by the Senator or by the aide on the Senator’s behalf, and if in all events the privilege available to the aide is confined to those services that would be immune legislative conduct if performed by the Senator himself. This view places beyond the Speech or Debate Clause a variety of services characteristically performed by aides for Members of Congress, even though within the scope of their employment. It likewise provides no protection for criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction. Neither does it immunize Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act. Thus our refusal to distinguish between Senator and aide in applying the Speech or Debate Clause does not mean that Rodberg is for all purposes exempt from grand jury questioning. We are convinced also that the Court of Appeals correctly determined that Senator Gravel’s alleged arrangement with Beacon Press to publish the Pentagon Papers was not protected speech or debate within the meaning of Art. I, §6, cl. 1, of the Constitution.... The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but “only when necessary to prevent indirect impairment of such deliberations.” Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence. The Senator had conducted his hearings; the record and any report that was forthcoming were available both to his committee and the Senate. Insofar as we are advised, neither Congress nor the full committee ordered or authorized the publication. We cannot but conclude that the Senator’s arrangements with Beacon Press were not part and parcel of the legislative process.... The Speech or Debate Clause does not in our view extend immunity to Rodberg, as a Senator’s aide, from testifying before the grand jury about the arrangement between Senator Gravel and Beacon Press or about his own participation, if any, in the alleged transaction, so long as legislative acts of the Senator are not impugned.... Rodberg’s immunity... extends only to legislative acts as to which the Senator himself would be immune. The grand jury, therefore, if relevant to its investigation into the possible violations of the criminal law,... may require from Rodberg answers to questions relating to his or the Senator’s arrangements, if any, with respect to republication or with respect to third-party conduct under valid investigation by the grand jury, as long as the questions do not implicate legislative action of the Senator. Neither do we perceive any constitutional or other privilege that shields Rodberg, any more than any other witness, from grand jury questions relevant to tracing the source of obviously highly classified documents that came into the Senator’s possession and are the basic subject matter of inquiry in this case, as long as no legislative act is implicated by the questions. Because the Speech or Debate Clause privilege applies both to Senator and aide, it appears to us that paragraph one of the order, alone, would afford ample protection of the privilege if it forbade questioning any witness, including Rodberg: (1) concerning the Senator’s conduct, or the conduct of his aides, at the June 29, 1971, meeting of the subcommittee; (2) concerning the motives and purposes behind the Senator’s conduct, or that of his aides, at that meeting; (3) concerning communications between the Senator and his aides during the term of their employment and related to said meeting or any other legislative act of the Senator; (4) except as it proves relevant to investigating possible third-party crime, concerning any act, in itself not criminal, performed by the Senator, or by his aides in the course of their employment, in preparation for the subcommittee hearing. We leave the final form of such an order to the Court of Appeals in the first instance, or, if that court prefers, to the District Court. The judgment of the Court of Appeals is vacated and the cases are remanded to that court for further proceedings consistent with this opinion. So ordered. MR. JUSTICE STEWART, dissenting in part. The Court... decides... that a Member of Congress may, despite the Speech or Debate Clause, be compelled to testify before a grand jury concerning the sources of information used by him in the performance of his legislative duties, if such an inquiry “proves relevant to investigating possible third-party crime.” In my view, this ruling is highly dubious in view of the basic purpose of the Speech or Debate Clause—“to prevent intimidation [of members of Congress] by the executive and accountability before a possibly hostile judiciary.” Under the Court’s ruling, a Congressman may be subpoenaed by a vindictive Executive to testify about informants who have not committed crimes and who have no knowledge of crime. Such compulsion can occur, because the judiciary has traditionally imposed virtually no limitations on the grand jury’s broad investigatory powers; grand jury investigations are not limited in scope to specific criminal acts, and standards of materiality and relevance are greatly relaxed. But even if the Executive had reason to believe that a Member of Congress had knowledge of a specific probable violation of law, it is by no means clear to me that the Executive’s interest in the administration of justice must always override the public interest in having an informed Congress. Why should we not, given the tension between two competing interests, each of constitutional dimensions, balance the claims of the Speech or Debate Clause against the claims of the grand jury in the particularized contexts of specific cases? And why are not the Houses of Congress the proper institutions in most situations to impose sanctions upon a Representative or Senator who withholds information about crime acquired in the course of his legislative duties? MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS, and MR. JUSTICE MARSHALL, join, dissenting. My concern is with the narrow scope accorded the Speech or Debate Clause by today’s decision. I fully agree with the Court that a Congressman’s immunity under the Clause must also be extended to his aides if it is to be at all effective.... [But] in holding that Senator Gravel’s alleged arrangement with Beacon Press to publish the Pentagon Papers is not shielded from extra-senatorial inquiry by the Speech or Debate Clause, the Court adopts what for me is a far too narrow view of the legislative function. The Court seems to assume that words spoken in debate or written in congressional reports are protected by the Clause, so that if Senator Gravel had recited part of the Pentagon Papers on the Senate floor or copied them into a Senate report, those acts could not be questioned “in any other Place.” Yet because he sought a wider audience, to publicize information deemed relevant to matters pending before his own committee, the Senator suddenly loses his immunity and is exposed to grand jury investigation and possible prosecution for the republication. The explanation for this anomalous result is the Court’s belief that “Speech or Debate” encompasses only acts necessary to the internal deliberations of Congress concerning proposed legislation. “Here,” according to the Court, “private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate.” Therefore, “the Senator’s arrangements with Beacon Press were not part and parcel of the legislative process.” Thus, the Court excludes from the sphere of protected legislative activity a function that I had supposed lay at the heart of our democratic system. I speak, of course, of the legislator’s duty to inform the public about matters affecting the administration of government. That this “informing function” falls into the class of things “generally done in a session of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson (1881), was explicitly acknowledged by the Court in Watkins v. United States (1957). In speaking of the “power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government,” the Court noted that “from the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.” We need look no further than Congress itself to find evidence supporting the Court’s observation in Watkins. Congress has provided financial support for communications between its Members and the public, including the franking privilege for letters, telephone and telegraph allowances, stationery allotments, and favorable prices on reprints from the Congressional Record. Congressional hearings, moreover, are not confined to gathering information for internal distribution, but are often widely publicized, sometimes televised, as a means of alerting the electorate to matters of public import and concern. The list is virtually endless, but a small sampling of contemporaneous hearings of this kind would certainly include... the 1966 hearings on automobile safety and the numerous hearings of the Senate Foreign Relations Committee on the origins and conduct of the war in Vietnam. In short, there can be little doubt that informing the electorate is a thing “generally done” by the Members of Congress “in relation to the business before it.”... Unlike the Court, therefore, I think that the activities of Congressmen in communicating with the public are legislative acts protected by the Speech or Debate Clause. I agree with the Court that not every task performed by a legislator is privileged; intervention before Executive departments is one that is not. But the informing function carries a far more persuasive claim to the protections of the Clause. It has been recognized by this Court as something “generally done” by Congressmen, the Congress itself has established special concessions designed to lower the cost of such communication, and, most important, the function furthers several well-recognized goals of representative government. To say in the face of these facts that the informing function is not privileged merely because it is not necessary to the internal deliberations of Congress is to give the Speech or Debate Clause an artificial and narrow reading unsupported by reason. Gravel provided some guidance for legislators: the speech or debate clause gave similar protection to the senator and the aide, but that protection was not absolute. Both senator and aide could be questioned for activities that had no direct connection to or “impinged upon” the legislative process. As for Senator Gravel, he went on to advocate some rather controversial ideas and, in 1980, lost his party’s nomination for a third term (see Box 3-2). Box 3-2 Aftermath... Mike Gravel Mike Gravel, who gained national attention with his 1971 release of the classified Pentagon Papers, led a rather eccentric life advocating political causes ranging from the conventionally liberal to the quixotic. Born in 1930, Gravel grew up in Massachusetts, where his father owned a construction company. After serving in the army from 1951 to 1954, he earned an economics degree from Columbia University and was eager to pursue a political career. Believing his options were limited on the East Coast, Gavel decided to relocate to the Alaska Territory, where he reasoned that a person without political and family connections had a better opportunity to make his political mark. After two unsuccessful races for local office, he was elected as a Democrat to the Alaska House of Representatives in 1963 and only two years later became Speaker. In 1968 he won the first of his two terms in the U.S. Senate. During his Senate tenure he was active in getting approval for the Alaska oil pipeline and helping settle the Alaska native land claims. But Gravel became better known as a vocal and harsh critic of the Vietnam War and a proponent of ending the draft. During his political career he advocated the legalization of drugs and same-sex marriage, the abolition of the Internal Revenue Service, the ending of free trade agreements, federally funded college tuition, and reform of the nation’s health care system. Many of his ideas, regarded as impractical and extreme at the time, have become part of the progressive mainstream today. Other notions have not, such as his belief that extraterrestrial beings are continuously monitoring our planet. His positions became increasingly unpopular among Alaskans, and he failed to build a firm political base in his home state. As a consequence, Gravel lost his party’s nomination for a third term in 1980, after which his life went into a tailspin that lasted for the next two decades. Business ventures failed, his health deteriorated, his first marriage ended, and he suffered bankruptcy. Gravel, however, emerged from obscurity in 2008 when he announced his candidacy for the Democratic presidential nomination. He ran an unorthodox campaign characterized by quirky video advertising. Remaining loyal to his 1960s political orientation, he viciously attacked the Iraq war and argued for the adoption of a national initiative procedure to give democratic power directly to the people. Support for his presidential campaign never exceeded 1 percent of polled voters, and before the primaries ended he left the Democratic Party and became a Libertarian. In 2014 Gravel joined Cannabis Sativa, Inc., as chief executive officer of its KUSH and THC Farmaceuticals subsidiaries. These businesses are devoted to the development and marketing of innovative hemp and marijuana products for medicinal and recreational use. Gravel died in the summer of 2021. Sources: Biography.com; Charles Wohlforth, “Some of This Former Alaska Senator’s Ideas Maybe Weren’t So Crazy After All,” Anchorage Daily News, April 25, 2016; Alaska Business Monthly, September 3, 2016; Business Wire, December 30, 2014; Baystreet, June 1, 2015. Despite the specificity of the Court’s ruling in Gravel, it did not put an end to controversies over the speech or debate clause. Indeed, as illustrated in Table 3-3, in the 1970s the Court decided several important issues that were left open by Gravel. In United States v. Helstoski (1979), the justices refused to allow prosecutors to introduce evidence into a court proceeding against a former member of Congress involving legislative activities. Hutchinson v. Proxmire (1979), however, was a defeat for congressional authority. Here, the Court examined a dispute arising when Senator William Proxmire (D-Wis.), on the floor of the Senate and later in a newsletter and on television, labeled Ronald R. Hutchinson’s federally funded research virtually worthless and a waste of taxpayer money. Hutchinson brought a libel suit against Proxmire; when the case reached the Court the justices addressed the issue of whether the speech or debate clause immunized the senator from a libel proceeding on the ground that he had first made the remarks on the chamber’s floor. The Court held that it did not: A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither the newsletters nor the press release was “essential to the deliberations of the Senate,” and neither was part of the deliberative process. Since Proxmire, speech or debate clause cases have not occupied much of the justices’ attention, though exceptions occasionally arise. In 2008 the Justice Department asked the Court to review a decision by the U.S. Court of Appeals for the District of Columbia, holding that the speech or debate clause gave members of Congress some protection against searches—with warrants—of their congressional offices. The Justice Department was investigating Representative William Jefferson (D-La.) for allegedly taking bribes and claimed that the court’s ruling would impede its ability to enforce federal law against Jefferson and other lawmakers. The Supreme Court declined to hear the case, United States v. Rayburn House Office Building Room 2113. Legislative Powers: Sources and Scope Section 8 of Article I contains a virtual laundry list of Congress’s powers. These enumerated powers, covered in seventeen clauses, establish congressional authority to regulate commerce, to lay and collect taxes, to establish post offices, and so forth. These enumerated powers qua powers pose few constitutional problems. Because the Constitution names them, Congress clearly possesses them. It is when Congress exercises these powers that questions can emerge. Some questions hinge on how to define the power—for example, Congress has the power to “regulate commerce among the states,” but what does “commerce” mean? Other questions focus on whether congressional use of an enumerated power violates other constitutional provisions—say, the First Amendment or, more relevant to this volume, structures underlying the Constitution, such as the separation of powers system or federalism. But what of other sources of legislative authority? For example, does the legislative branch have powers beyond those explicitly specified in the Constitution? Even though the framers may have left this question unaddressed, the Court has answered it affirmatively. As Table 3-4 shows, the Court has suggested that Congress possesses implied and inherent powers in addition to those explicitly mentioned in Article I. The Court has also acknowledged that Congress has the power to enforce certain constitutional amendments but that this power stems from language in the Constitution—though in specific amendments, not in Article I, Section 8. For example, the Thirteenth Amendment, which outlaws slavery, says that “Congress shall have power to enforce this article by appropriate legislation.” In this section, we examine the cases in which the Court has delineated and interpreted these powers. Some analysts suggest that Congress also possesses resulting powers (those that result when several enumerated powers are added together) and inherited powers (those that Congress inherited from the British Parliament, such as the power to investigate). We also explore constraints on Congress’s ability to exercise these powers. Just as the Court has placed limits on congressional exercise of its enumerated powers, it has constrained Congress’s use of these others. For example, the Court has permitted Congress to conduct hearings and investigations (an unenumerated power), but it also has asserted that the power is not unlimited, that certain restrictions apply. As you read the next cases, keep in mind not only the sources of legislative power but also its scope. What limits has the Court placed on Congress and, more important, why? What pressures have been brought to bear on the justices in making their decisions? Enumerated and Implied Powers The Constitution’s specific list of congressional powers leaves no doubt that Congress possesses these “enumerated” powers. In Gibbons v. Ogden (1824), when the Court was asked to interpret one of its powers, the power to regulate interstate commerce, Chief Justice John Marshall said, The words [of the Constitution] are, “Congress shall have power to regulate commerce with foreign nations, and among the several States.... ” The subject to be regulated is commerce, and our constitution being... one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word [our italics]. In these two sentences, Marshall asserted that Congress indeed has the enumerated power to regulate commerce but that the Court needed to define what that power entails. This point is important because the fact that a power is written into the Constitution does not necessarily make the Court’s task easier: often it must define how Congress can and cannot make use of that power, as we just suggested. Equally important, recall, is that Congress exercise its powers in ways that do not violate other constitutional provisions or doctrines. In the chapters to come we consider these two issues as they relate to Congress’s enumerated powers to regulate commerce and to tax, among others. Suffice it to say for now that virtually no debate ever occurs over whether, in fact, Congress has the powers contained in Article I, Section 8. Necessary and Proper Clause The question that does deserve attention is whether Congress has more powers, or was intended to have more powers, than those specifically granted. And if so, how broad should they be? Those who look to the plain language of the Constitution or to the intent of the framers find few concrete answers, although both camps would point to the same clause. Article I, Section 8, Clause 18, provides that Congress shall have the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Called by various names—the necessary and proper clause, the elastic clause, the sweeping clause—this provision was the subject of heated debate early in the nation’s history. Many affiliated with the Federalist Party, which favored a strong national government, argued for a loose construction of the clause; in their view, the framers inserted it into the Constitution to provide Congress with some “flexibility.” In other words, Congress could exercise powers beyond those listed in the Constitution: those that were “necessary and proper” for implementing legislative activity. The Jeffersonians asserted the need for a strict interpretation of the clause; in their view, it constricted rather than expanded congressional powers. That is, under the necessary and proper clause Congress could exercise only that power necessary to carry out its enumerated functions. Which view would the Supreme Court adopt? Would it interpret the necessary and proper clause strictly or loosely? This was one of two major questions at the core of McCulloch v. Maryland (1819),17 which many scholars consider the Court’s most important explication of congressional powers. As you read this case, consider not only the Court’s holding but also the language and logic of McCulloch. Why is it regarded as such a landmark decision? McCulloch v Maryland (1819) Facts: Although Americans take for granted the power of the federal government to operate a banking system—today called the Federal Reserve System—in the late eighteenth and early nineteenth centuries this topic was a political battleground. The first sign of controversy appeared in 1791 when George Washington’s secretary of the Treasury, Alexander Hamilton, asked Congress to adopt a comprehensive economic plan for the new nation. Among the proposals was the creation of a Bank of the United States, which would receive deposits, disburse funds, and make loans; Congress responded with a bill authorizing the first federal bank. When the bill arrived at President Washington’s desk, however, he did not sign it immediately. He wanted to ascertain whether in fact Congress could create a bank, since it lacked explicit constitutional authority to do so. To this end he asked Hamilton, Secretary of State Thomas Jefferson, and Attorney General Edmund Randolph for their opinions on the bank’s constitutionality. Box 3-3 presents excerpts of Hamilton’s and Jefferson’s responses. We offer them not only because the two men reached different conclusions—Hamilton argued that the bank was constitutional, Jefferson that it was not—but also because the arguments represent the classic competing theories of congressional power. As historian Melvin I. Urofsky puts it, “Where Jefferson... argued that Congress could only do what the Constitution expressly permitted it do, Hamilton claims that Congress could do everything except what the Constitution specifically forbade.”18 The debates may also suggest the limits of originalism as a method of constitutional interpretation. Does it seem odd that just four years after the writing of the Constitution, two of the nation’s foremost leaders could have such different views? In his argument, Hamilton, in fact, noted that there was a “conflicting recollection” of a convention debate highly relevant to the bank issue.19 In the end, Hamilton persuaded the president to sign the bill. Congress then created the First Bank of the United States in 1791 and granted it a twenty-year charter. 18 Melvin I. Urofsky, Supreme Decisions: Great Constitutional Cases and Their Impact (Boulder, CO: Westview Press, 2012), 19. 19 The framers rejected a proposal that would have allowed Congress to establish corporations in part because of the possibility that Congress would create banks. See Jethro K. Lieberman, Milestones! (St. Paul, MN: West, 1976), 19. Still, Hamilton argued that debate was unclear. Box 3-3 Jefferson and Hamilton on the Bank of the United States Opinion on the Constitutionality of a National Bank (1791) Thomas Jefferson To take a single step beyond the boundaries... specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition. The incorporation of a bank, and other powers assumed by this bill have not, in my opinion, been delegated to the U.S. by the Constitution. They are not among the powers specially enumerated, for these are A power to lay taxes for the purpose of paying the debts of the U.S. But no debt is paid by this bill, nor any tax laid.... “To borrow money