March 8, 2011 – Article I, Section 05, Clause 1 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 5, Clause 1
1:  Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Article I, section 5, clause 1 of the Constitution gives to the branches of the Legislature power to “judge” or determine whether an election of one of its members is valid and whether the person elected meets the Constitutional requirements for service. Without such a check, Joseph Story explained, “any intruder, or a usurper, might claim a seat, and thus trample upon the rights and privileges, and liberties of the people.” Joseph Story, 2 Commentaries on the Constitution §831 (1833).

The U.S. Supreme Court discussed this provision in a case challenging the House of Representatives’ decision to exclude Adam Clayton Powell, Jr. over allegations of corruption. In that case, the Court ruled the House could not exclude Representative Powell unless he did not meet one of the qualifications in the Constitution (age, citizenship, etc.). In other words, his exclusion was unconstitutional because the House had added a qualification not in the Constitution. See Powell v. McCormack, 395 U.S. 486 (1969). As stated in a later case: “The decision as to whether a Member satisfied these qualifications [those in Article I, section 2] was placed with the House, but the decision as to what these qualifications consisted of was not.” Nixon v. United States, 506 U.S. 224, 237 (1993).

The next part of the clause deals with the quorum required to do business. The challenge here was to ensure that the requirement was not too much or too little but just right.

In the Constitutional Convention, Oliver Ellsworth, succinctly made the case that a majority should be required for a quorum: “It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them, by a few men.” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 289 (1987); see also John Bryan Williams, “How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress”48 William & Mary Law Review 102 (2006).

On the other hand, a larger requirement might have had advantages but would have become unworkable. In Federalist 58, James Madison notes this and adds that if there were a more stringent requirement “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.” This would happen because the minority could keep anything from being done.

As Congress now operates, the question of a quorum is not usually considered unless a member requests a quorum call, usually as a way of delaying the business of the body.

One very real threat to the quorum requirement would come if a number of members decided to flee or otherwise avoid attending the deliberations of Congress so as to prevent a quorum and keep business from being done. Of course this is occurring right now as members of the Wisconsin Senate have fled the state in order to prevent a quorum and thus the passage of legislation with which they disagree.

This behavior was anathema to the Framers. James Madison called it “the baneful practice of secessions . . . a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.”. Federalist 58; see also William C. Marra, “What Would America’s Founders Think About Fleeing Legislators?” Weekly Standard (February 28, 2011) at http://www.weeklystandard.com/blogs/what-would-americas-founders-think-about-fleeing-legislators_552632.html?page=2.

The Framers effectively countered such a threat by allowing a smaller number of legislators to compel their erstwhile colleagues to return. In the Philadelphia Convention, John Randolph and James Madison proposed adding this requirement on August 10, 1787, the day that the quorum requirement was debated. Kurland & Lerner at 290. If effectively applied, it can prevent a minority takeover of the power of the national government through inaction.

Yet another example of how current developments help us to see the wisdom and foresight of the Constitution’s drafters.

Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

6 replies
  1. Ron Meier
    Ron Meier says:

    Thanks Mr. Duncan. In addition to the WI question re fleeing the State, this immediately brought to mind the qualifications for President, particularly as they relate to President Obama’s place of birth. Perhaps this will come up in a later section, but, it strikes me odd that the House is authorized to judge the qualifications of a member of the House but that there wouldn’t be a similar procedure for perhaps the Senate judging the qualifications of the President. Regardless of party, I’m sure most Americans would like to know that every member of the House, Senate, and Supreme Court, in addition to the President, is “audited” to make sure they meet the minimum requirements for holding office.

    Reply
  2. CA.org
    CA.org says:

    Thank you, Mr. Duncan, for your insightful essay! We ask that folks stay on the topic at hand today, which is “each House” serving as the sole judge of the ” Elections, Returns and Qualifications of its own Members,” and quorum, adjournment and attendance matters in the Congress.

    Today’s clause, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” reminds me of a U.S. House controversy I witnessed firsthand as a young staffer for Congressman Joe Barton, in 1985 – whether to seat incumbent Congressman Frank McCloskey (D-IN,8) or challenger Rick McIntyre. The incumbent Congressman McCloskey had won the close election in Indiana in November of 1984 by less than one hundred votes. Challenger Rick McIntyre called for a recount, and won the recount first by 34 votes and then by over 400 votes in a subsequent recount. However, under Article I, Section 5, Clause I, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” the U.S. House voted along party lines first in Committee and then on the floor to seat Congressman McCloskey. The minority party, the Republicans, were outraged that the will of the state of Indiana had been ignored (as we learned yesterday, states are in charge of recounts). Many believe the McCloskey/McIntyre controversy was the spark that led to the eventual shift in control of the U.S. House from Democrats to Republicans in 1994.

    This episode in our country’s history reminds me that although one section of the Constitution may be misused, there are Constitutional provisions in place for the people to speak, elect new leaders, and try again. Our system of government may not always respond quickly, but over time, the Constitution allows corrections to be made!

    Thank you to all who are blogging with us during this project! Please spread the word – invite your civic groups, classes, personal network and friends to engage in our lively discussion and civic debate!
    Have a great day!
    Cathy Gillespie

    Reply
  3. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    This topic on each house a sole judge of their own elections, returns, and qualifications corresponds with Federalist 53. It seems to me; however, in regards to the next essay’s topic corresponds here as well for if the Congress cannot judge the qualifications of its members to include disqualification by reason of corruption charges, then as soon as the newly elected takes the oath of office they are subject to discpline of the respective house.

    What is also of interest here is that the Quorom to do business permits at least half of the statesment to convene to start a session; but then they are allowed to leave in smaller numbers such that less than half are allowed to continue business. In light of the ability to do remote visual conferencing; and since roll call ballots are done electronically these days; how about allowing statesmen to vote from their office, or thier home state office after convening so they can spend more face-time with their constituents?

    The more time away from Washington D.C. the better. It is good to also have face time as well when convened in the chambers of the houses to have open debates; but it is good that statesmen do not make a career out of living in Washington D.C. as well. In addition, if sponsors and co-sponsors of a bill have a mitigating circumstances, they can still support their bill rather than being faced with unscrupulous tactics of pulling a sneaky of calling a vote when the key proponents and debators of the bill are predisposed with something else.

    Reply
  4. Barb Zakszewski
    Barb Zakszewski says:

    Great information today, given what is happening, in Wisconsin. What those state senators are doing is shameful, cowardly and a direct insult and assault to the People of Wisconsin. Since other states will be facing the same types of budget and union issues that Wisconsin is facing, I wonder how often we will be seeing this replayed in State Capitals around the nation. Very curious that this actually has never happened in Congress, or has it?

    Reply
  5. Janine Turner
    Janine Turner says:

    Mr. Duncan,

    I thank you for your fascinating essay today! It is amazing to thoroughly study the intricacies of the Articles and to realize how timely they continue to be after over two centuries! I believe an example of the Senates qualifications process came into play when President Obama vacated his Senate seat. Did it not? And could the quorum stipulation be more relevant? I read our link in the Weekly Standard and I believe Mr. Marra summed up the situation in Wisconsin quite well with the following words:

    “The loser in all of this is democracy. By fleeing to Illinois or escaping to Major Boyd’s Tavern, dissenting lawmakers abuse the quorum rule, and they seize an unjustified veto over legislation supported by a majority of duly elected representatives. The quorum rule, designed to ensure majority rule and prevent a minority from co-opting the legislative process, is twisted to serve the very evil it was designed to combat, a tyranny of the minority. The recourse from controversial legislation like that in Wisconsin ought to be found at the ballot box, not in the dusk drive across state lines.” -Mr. William C. Marra

    Once again, Mr. Duncan, I thank you for your generosity of time!

    Janine Turner

    Reply
  6. Monte Blachford
    Monte Blachford says:

    Thanks for the great information, I continue to be amazed at the foresight the founders had on such matters.

    Reply

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