[Josh Chafetz, guest-blogging, July 24, 2008 at 8:48am] Trackbacks
Responding to Some of Your Comments

on Leaving the House. In my previous post, I suggested some reasons why we might want the House to amend its rules so as to require resignations to be accepted before they are effective. For my last post, I want to reply to some of your comments. I apologize in advance that I won't have the time to reply to all of the interesting comments I received.

First, "non-native speaker" wrote

I can't see why the constitutional provision about filling vacancies caused by resignation necessarily means that senators had a *right* to resign. It could well mean that, as in the 1770 New Jersey case mentioned in your previous post, resignation requires the acceptance or approval of the legislature to be effective; and in that case, when the resignation is approved, the constitutional provisions about filling vacancies apply.

Additionally, the 27th amendment does no longer mention "resignation" as a cause for vacancy: "When vacancies happen in the representation of any State in the Senate...". Does this mean that "right" to resign was repealed by the amendment?

As for the first part of that question, I take the Madison-Morris colloquy to show that "resignation" is used to mean a right to resign. Otherwise, that colloquy would imply that there is no way for a member to leave the House, even with the House's consent. While the text will bear that construction, the history, I think, will not. It had never been the case in any legislature that I am aware of that a Member could not leave with his house's consent. (Indeed, I take it to be the case that, although the Chiltern Hundreds are invariably used in Britain today, an MP could still be allowed to resign by vote of the House of Commons.) It would also run contrary to the wide power given each house over its own practices and procedures. Given that, I would expect to see some debate if the words were understood to mean that a Representative could not quit his seat, even with the House's consent.

As for "non-native speaker"s second question, I take him to be referring to the Seventeenth Amendment, not the Twenty-Seventh. As for whether the Seventeenth Amendment removes a Senator's right to resign, that would be a question of the meaning of that Amendment when it was promulgated. I haven't done the historical research, so I can't offer a definitive answer, but my suspicion is that, by 1913, it was sufficiently (if, in my view, mistakenly) ingrained in legislators' consciousness that neither house could prevent a legislator's resignation, that the omission of resignation was not meant to carry any meaning.

Professor Muller asked:

Can a person be President and a Senator at the same time?

If not, would McCain or Obama have to resign his Senate seat in order to take the Oath of Office as President?

If so, does your article imply that the Senate should have to approve of such a resignation before it became effective?

If so, does your article imply that a Democratic-controlled Senate could block Senator McCain from assuming the duties of the Presidency by withholding permission for him to resign the Senate? (Or that a Republican-controlled Senate could do the same to Senator Obama?)

Just wondering.

I would note, first, that Seth Tillman has a very interesting draft on SSRN arguing that, in fact, a person can be President and a Senator simultaneously. I remain somewhat skeptical about Seth's claim for structural reasons, but I commend the article to you. I note also that McCain and Obama are both Senators, and I have argued that the Constitution does give Senators a right to resign. However, even if one of them were a Member of the House, acceptance of an incompatible office (assuming, for present purposes, the presidency to be such) would vacate his House seat, because acceptance of an incompatible office vacates a House seat by itself. That is, incompatibility is a means of creating a vacancy wholly separate from resignation. Just as a member judged by his house not to have been duly elected or not to meet the requisite qualifications loses his seat without resigning it, so too a member who accepts an incompatible office does. It is, in this sense, no different than accepting the Chiltern Hundreds, which does not actually constitute a resignation, but rather vacates the seat by operation of incompatibility provisions.

Several people asked if this would be a Thirteenth Amendment violation, a question with special resonance given Jim and Ilya's ongoing discussion of mandatory service requirements. (On the issue of the meaning of "involuntary servitude," I would recommend Nathan Oman's forthcoming article.) I discuss the Thirteenth Amendment briefly in my article (pages 53-54), but the short answer is that I do not think that requiring a member to serve out a two-year commitment which he voluntarily undertook and for which he is handsomely compensated constitutes involuntary servitude. Again, I think the analogy to service in a volunteer military is useful.

Finally, several commenters were dismissive of what might be called the norm-reinforcing functions of requiring resignations to be accepted, essentially saying that, if members aren't being kept in the House involuntarily, then my proposal wouldn't result in any change. I have a more robust conception of political mores than that. I think that, if you spend decades telling people that legislators are just self-interested rent-seekers, then we're not surprised when they turn out to be nothing more than self-interested rent-seekers, and people like William Jefferson get reelected. But when institutional practices are aimed at inculcating the norm that our legislators should be public spirited, that subtly helps to change the political culture to the point where we actually expect legislators to behave that way. To me, that is a tangible benefit.

Well, that's it for me. Thank you so much to Eugene and all of the Conspirators have having me here. And thank you even more to all of you for reading and commenting on my article. I've had a blast discussing it with you!

I'll just add one more time that, if you've found that you're interested in historical discussion of Anglo-American constitutional rules regarding legislative procedure, my book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, is chock full of 'em! The book discusses issues like the judging of disputed elections, legislative contempt powers, bribery, the speech or debate privilege, etc. And it's still 20% off at Amazon!

Okay, thus ends the busking (didn't I promise in an earlier post I wouldn't do any more of that? hmmmm, can't remember ...), and with it, my posting here at the VC. Now, I'm off for ten days in Yellowstone and the Grand Tetons, far away from any computers. But I will certainly check any comments when I get back, so feel free to leave them.