Thanks to Eugene and His Co-Conspirators
for inviting me to blog here about my new paper, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, which will be published this November in the Duke Law Journal. (If you missed Eugene's welcome post and are wondering who the heck I am, my faculty webpage is here.) I thought what I would do this week is say a little bit about each section of the paper, and also try and respond to some comments from you all. The paper has a fair amount of historical detail, of which I'll only be able to give small snippets here, so if the issues seem interesting to you, I urge you to read it.
The three-sentence version of this article as a whole is that it considers the question of whether Members of the House of Representatives have a constitutional right to resign their seats, or whether the House itself has the constitutional power to require that resignations must be accepted by the House before they become effective. The article makes an historical argument that the House does have the constitutional power to require that resignations be accepted, but this power has never been exercised. Finally, it suggests some reasons why we might want the House to change its rules so as to require it to accept resignations before they become effective.
I'll lay out the historical arguments over the course of my next few posts. But I'll just close this introductory post with a brief bit of shameless self-promotion: if you're interested in issues, like this one, of the interaction between the Constitution and congressional procedure, I note that my book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, covers a number of these issues in depth. (And it's currently 20% off at Amazon! Buy copies for your friends and neighbors!)
Leaving the House of Commons,
or, Part I of Leaving the House. Those of you who know your British government know that Members of the House of Commons have never had the right to resign their seats. Instead, they (today) apply for and are, as a matter of course, granted a royal office, the holding of which is incompatible with parliamentary service. This has the effect of vacating their House seats. How this system came about turns out to be fascinating (at least to me).
Parliament's origins are in the medieval curia regis, the King's council. Its job was to assist the Crown in administering the Kingdom. This explains why, until Elizabeth's reign, disputed parliamentary elections were handled by a Crown officer — the King was deeply interested in his parliament's composition. (Legislative jurisdiction over disputed elections is covered in more detail in chapters 7 and 8 of my book. (Still on sale at Amazon! Okay, last plug, I promise.) The kings, as it turned out, had very little interest in allowing their subjects to decline to serve, and they almost never allowed resignations.
Elizabeth faced an increasingly powerful and confrontational House of Commons, and it is during her reign that we begin to see many parliamentary privileges take their modern shapes. This included the House's successful assertion that it, and it alone, had jurisdiction over disputed parliamentary elections and qualifications. Concomitantly, the House asserted (again, successfully) that it, and it alone, had the right to determine whether or not a Member would be permitted to resign. The House, however, did not prove more permissive of resignations than the Crown had been.
Consider, for example, the 1624 election for the County of Gloucester. There were three candidates for the two open seats. The second-highest vote-getter, Sir Thomas Estcourt, had announced in advance that he did not want the seat. After his election, the House Committee of Privileges and Elections had to determine (among other things) "[w]hether Sir Thomas Estcourt was eligible, against his own consent, and contrary to his desire." The committee determined that he was eligible, because
no man, being lawfully chosen, can refuse the place; for the country and commonwealth have such an interest in every man, that when, by lawful election, he is appointed to this public service, he cannot, by any unwillingness, or refusal, of his own, make himself incapable; for that were to prefer the will, or contentment, of a private man, before the desire and satisfaction of the whole country, and a ready way to put by
the sufficientest men, who are commonly those, who least endeavour to obtain the place.
However, at the beginning of the eighteenth century, a series of anti-Stuart statutes had the unintended consequence of creating new ways for Members to leave the House of Commons. The 1701 Act of Settlement, in addition to providing that the Crown would pass to the House of Hanover if (as expected) both William and Anne died without heirs, created several limitations on royal power to take effect when both William and Anne were dead. One of these limitations was the provision that anyone who occupied any Crown office or received any Crown pension would be ineligible to serve in the House of Commons. Had this provision gone into effect, it would have radically altered the theory of English government — it would have meant that even Secretaries of State (e.g., the later-developed office of Prime Minister) could not be Members of the House.
Before it could come into effect, however, that provision was replaced by a provision of the 1705 Regency Act, which excluded from the House of Commons anyone holding one of an enumerated list of Crown offices, anyone holding a Crown office created after 1705, or anyone holding a pension at the pleasure of the Crown. Moreover, any Member of the House of Commons who accepted "any Office of Profit from the Crown during such Time as he shall continue a Member" voided his election; however, so long as the office was not one of those enumerated, he could stand for reelection to the House of Commons. If reelected, he could hold both places.
Within a decade, Members figured out that they could use these provisions as a means of vacating their seats, provided they were on friendly terms with the royal officials in charge of doling out Crown offices, especially those offices which had very few responsibilities and/or very little income attached to them. (One of the royal offices used at least twice in the 1710s was Out-Ranger of Windsor Forest. Rangers were royal officials whose job it was to patrol the edges, or "purlieus," of forests and drive back into the forest any deer that might seek to explore life in the larger world. The "Out Ranger" was, as best I can tell, a Ranger who did not live in —- and therefore, did not actually patrol -— the forest for which he was responsible.)
Beginning in the 1750s, royal stewardships became the principal means of vacating House seats, and most particularly the Stewardship of the Chiltern Hundreds. (The Three Chiltern Hundreds of Stoke, Desborough, and Burnham, in Buckinghamshire, were royal properties at least as early as the reign of Edward I. The Hundreds were administered
by a Steward, an office of profit under the Crown, appointed in the Exchequer. By the eighteenth century, the office had ceased to carry any administrative functions, nor was it any longer a source of measurable profit. However, it was still formally an office of profit under the Crown, and therefore resulted in the Steward's House seat being declared vacant.)
It is, in fact, still the case today that Members leave their seats in the House of Commons by accepting a Crown stewardship. Today, the Stewardship of the Chiltern Hundreds is granted alternatingly with the Stewardship of the Manor of Northstead. Leaving the House of Commons is colloquially referred to as "taking the Chiltern Hundreds," and one even occasionally sees the Chiltern Hundreds used as a metaphor for a useless office.
A couple of notes that will be relevant as I move into discussing resignations from American legislatures. First, although the Chiltern Hundreds is today granted as a matter of course, this was not always the case. Lord North (who served simultaneously as Prime Minister and Chancellor of the Exchequer) denied it on several occasions in the 1790s, and it was also denied on several occasions in the 1840s. And second, although Crown officers grant the Chiltern Hundreds, this system of leaving House seats came into being as the modern system of ministerial responsibility to Parliament was beginning to take shape. Thus, while the Chancellor of the Exchequer was (and is) legally a Crown officer, he was increasingly answerable to the House of Commons. Thus, Members were still seeking permission to quit their seats from, if not the House itself, at least someone answerable to it.
If you want further documentation of or elaboration on any of the points above, they are summarized from pages 8-19 of the article draft on SSRN. In the next few posts, I'll bring the history of legislative resignation up to the Constitutional Convention.
Leaving Pre-Constitutional American Legislatures,
or, Part II of Leaving the House. In my last post, I went through the history of devices by which Members have quit their seats in the House of Commons. Not only has a right of resignation never existed at English or British law, but, during the crucial period of American constitutional development, it was not the case that a Member who sought the Chiltern Hundreds would necessarily be granted it.
In this post, I will look at pre-constitutional American practice. I should begin by acknowledging that the historical record relied upon here is thinner than the record for the House of Commons. But as far as I have been able to piece it together, with a single, explicit exception, no pre-constitutional American legislature allowed for resignations as a matter of right.
As historians of the American colonies have noted, colonial American legislatures tended to model themselves — especially in matters related to their procedures and privileges — after the House of Commons. Thus, in several colonies (e.g., Pennsylvania and North Carolina), the election laws provided punishments for elected delegates who did not appear when the legislature was in session, without making any distinction between elected delegates who had been seated and those who had not, or between those who wished to continue as members and those who did not. Other colonies (e.g., New York and South Carolina) provided for the filling of vacancies caused by an enumerated list of causes, and resignation was not listed. And in 1770, the New Jersey legislature and governor quarreled about which of them would accept John Ogden's resignation, but no one asserted that it was effective without someone's accepting it.
The practice of the states in the years between independence and the drafting of the federal Constitution seems to have been the same. A number of state constitutions (e.g., Pennsylvania, Virginia, New York, Vermont) mentioned resignation for executive and judicial officials without any mention of it for legislators.
Indeed, an incident from the Pennsylvania state legislature vividly illustrates the unavailability of resignation. On September 28, 1787 — one day before the expiration of the legislature — a member introduced a two-part resolution for the calling of a state convention to ratify the proposed federal Constitution. The first part, which expressed the Assembly's general desire to call a convention, was considered the morning it was introduced and passed by a vote of forty-three to nineteen. The assembly then adjourned for lunch. When it reconvened to consider the second part — which specified the date and procedures for electing delegates to the ratification convention — all nineteen members who voted against in the morning were absent, leaving the assembly one member short of a quorum. A quorum of the Pennsylvania Assembly consisted of "two-thirds of the whole number of members elected," (emphasis added) meaning that the denominator for quorum purposes did not change when a seat was vacant. The assembly sent its Sergeant out to round up some absent members, which (with the help of a band of concerned citizens) he did. The detained members sought to be excused — a request which the house denied — but they never sought to resign. Given that this all occurred on the final day of the legislature, they had nothing to lose by resigning, if they could. But they never even mentioned it. They knew there was no point in asking permission to resign — it would be refused — and without permission, the resignation would be of no effect.
One state, however, did allow for resignations: Maryland. Its 1776 Constitution specifically provided for the filling of legislative vacancies occasioned by, among other things, resignation.
The Continental Congress seems to have followed the majority rule. Although service in the Continental Congress was distinctly unpleasant, and it often had difficulty mustering a quorum, delegates nevertheless sought leave of the body to retire from it.
It thus seems that, with the sole exception of Maryland, pre-constitutional American legislatures followed the same rule as the House of Commons: Members had no individual right to quit their seats. Rather, if they wished to leave the house, they would need the house's permission to do so.
If you want further documentation of or elaboration on any of the points above, they are summarized from pages 19-28 of the article draft on SSRN. In the next post, I'll discuss the treatment of legislative resignations in the Constitution itself.
The Constitution on Congressional Resignation,
or, Part III of Leaving the House. In the last two posts, I've traced the history of devices used to leave the House of Commons and argued that no pre-constitutional American legislature, with the sole and explicit exception of Maryland, allowed resignation as a matter of right.
In this post, I want to look at the Constitution itself. First, let's look at the text. Article I, sec. 2, cl. 4 provides that, "When vacancies happen in the [House] Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies." In contrast, Article I, sec. 3, cl. 2 provides that, "if vacancies [in the Senate] happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." (Emphasis added.) The Constitution also mentions resignation in the context of the Presidency (Article II, sec. 1, cl. 6 and Twenty-Fifth Amendment) and the Vice-Presidency (Article II, sec. 1, cl. 6). So, how pregnant is the silence as to resignations with regard to the House?
Let's look at the history. At the Philadelphia Convention, Edmund Randolph's "draft sketch" of a constitution provided for filling vacancies in the lower house of the legislature caused "by death disability or resignation." Randolph's sketch was taken up by the Committee of Detail, but that was the last time at the Convention that this wording appeared. The Committee of Detail reported a draft to the full Convention which provided for the filling of vacancies in both houses, but said nothing as to how such vacancies might arise.
The provision for filling House vacancies was unanimously agreed to by the Convention, but the provision for filling Senate vacancies occasioned some debate. Most important for my purposes is the following colloquy between James Madison and Gouverneur Morris:
Mr. Madison in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to strike out the words after "vacancies". & insert the words "happening by refusals to accept, resignations or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies shall happen, or by the Executive thereof until the next meeting of the Legislature"
Mr. Govr. Morris[:] this is absolutely necessary. otherwise, as members chosen into the Senate are disqualified from being appointed to any office by sect. 9. of this art: it will be in the power of a Legislature by appointing a man a Senator agst. his consent, to deprive the U.S. of his services.
Madison's proposal passed unanimously. Tellingly, not a single delegate quibbled with the assumption underlying Madison's and Morris's comments, that absent an explicit mention of resignations, Senators might be prevented from resigning. Equally tellingly, not a single delegate proposed similar language for the House of Representatives. One would, it seems to me, have to have a low opinion, indeed, of the intelligence or attentiveness of the Convention delegates to think that this was a mere oversight and that they intended for Representatives to have a constitutional right of resignation, as well.
But why might the Founders have wanted to treat the House and Senate differently when it comes to resignations? I can think of three reasons. First, term length. They may have thought that many of the new republic's leading lights would refuse to stand for a six-year term in a new and unfamiliar government if they could not be assured of a right to leave if things went badly. A two-year House commitment may have been thought to pose no such problems.
Second, it was possible at the Founding that someone would be elected to the Senate against his will. A cabal in the state legislature could remove someone — say, the leader of the opposition party in that state — from the state political arena for six years by appointing him to the Senate. In an era in which state politics were more important to many people than national politics, this was not inconceivable; a right to resign would, however, operate to prevent it. Again, it was much less likely that this would happen in the House, where members were directly elected by the voters.
Finally, there was a difference as to function. At the Founding, especially, the Senate was a representative of state interests. Consider the practice of instruction. When a state legislature had strong opinions about an issue pending before Congress, it would pass a resolution of the following form: "Be it resolved that our Senators in Congress are hereby instructed, and our Representatives are requested, to vote for ...." The difference in wording is a clear consequence of the differences in institutional design between the two houses of Congress. But what to do if the Senators disobeyed? The Constitution contains no Articles of Confederation-esque recall provision. The answer lay in the honor politics of the early republic. Beginning with John Quincy Adams in 1808, Senators who were unwilling to follow instructions were expected to resign, and a number of them did so. Answerability to the states thus provides a third reason for treating the House and Senate differently with regard to resignations in the Founding era.
So, to recap: Thus far, we have seen that no right of legislators to resign has ever existed at English law. We have seen that the English practice formed a sufficiently powerful background legal norm that the only American jurisdiction to reject it — Maryland, in its 1776 Constitution — did so explicitly. We have seen that the drafters of the Constitution operated with the assumption that, unless they made explicit provision for it, legislators would not have the right to resign. We have seen that they did make explicit provision for the resignation of Senators; moreover, they had Randolph's draft before them, which would have explicitly provided for the resignation of Representatives, but they chose not to use that wording. All of this combines to suggest that Members of the House of Representatives have no constitutional right to resign. As a constitutional matter, Members may request the House's permission to surrender their seats, but the House is not bound to give that permission.
We are, however, used to seeing Members of the House resign all the time. In my next post, I'll explain how we got there. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 28-36 of the article draft on SSRN.
or, Part IV of Leaving the House. Having thus far argued that no right to resign from the legislature existed in British law or (with the exception of Maryland) in the pre-constitutional American legislatures, and having argued that, against this background, the decision to include a mention of resignation in the Senate Vacancies Clause but not in the House Vacancies Clause was intentional and meaningful, we now come to the question of how the House has actually treated resignation.
The answer, in a nutshell, is that it has always allowed them. There were no resignations from the House in the First Congress. However, in the Second Congress, William Pinkney was elected to the House from Maryland. He never took his seat, and in September 1791, he sent a letter to the Governor seeking to resign his seat. The Governor issued a writ for a new election, which was won by John Francis Mercer. When Mercer appeared to take his seat, the issue of who, if anyone, was entitled to the seat was put before the House Committee of Elections.
The Committee recommended that Mercer be seated, but substantial debate ensued on the House floor. There were, essentially, three positions represented. One was that, because Pinkney had never been seated, this was a refusal rather than a vacancy, and the two were treated differently. On this view, Mercer should be seated because Pinkney had never taken the oath. The second view was that this was a resignation (or that resignations and refusals were to be treated the same), and that resignations were perfectly fine. The third view was that Pinkney could not give up his seat without the House's consent. Ultimately, the House seated Mercer, but without choosing between the first two positions.
Later in the Second Congress, Joshua Seney, a Member from Maryland, sought to resign his seat. The Annals make clear that there was a debate over the constitutional issues surrounding a resignation, but unfortunately, the Annals contains only a very truncated summary of the debate. Without any resolution by the House, the Maryland Governor ordered a new election, and William Hindman was returned. When he appeared, he was seated.
Thereafter, the matter was more or less settled. In the first resignation from the Third Congress, John Francis Mercer (the same one who replaced Pinkney) resigned his seat and was replaced by Gabriel Duvall. The debate on this seems almost non-existent, but it is worth noting that, while some Members wanted to seat Duvall without voting on the Committee of Elections' report, James Madison insisted that the report be voted on, perhaps indicating that Madison continued to believe that a resignation was not effective until the House voted to accept it. In the second resignation from the Third Congress, Uriah Forrest, a Representative from Maryland, resigned and was replaced by Benjamin Edwards. This appears to have occasioned no debate at all, but the House did vote to seat Edwards.
What was going on here? Well, first, it is worth noting what the votes to seat the replacement members do not tell us. Clearly, from the debate over Pinkney, some Members thought that there was a right to resign a House seat. But some may have felt, as Madison apparently did, that it was, in fact, necessary for the House to vote to accept resignations. Note that all of the replacements mentioned above were seated only after a vote of the House. Thus, the fact of their seating likely reflected a coalition of (a) Members who believed that the replacements were entitled to the seat because their predecessors had been entitled to resign, and (b) Members who believed that the resignation of the predecessors was a matter of grace, but that they were voting to extend that grace.
Moreover, it may not have escaped notice that the first four resignations from the House were all members from Maryland, the only state whose pre-1787 Constitution allowed for legislative resignation. The norm that resignation was a matter of right may have been introduced into Congress by Marylanders and subsequently spread to their colleagues. Consider, in this vein, that Pinkney's letter announcing his resignation read, "I enclose my resignation, which you will be please [sic] to forward to the executive ...." Contrast that with a roughly contemporaneous letter by Christopher Gore, a member of the Massachusetts state legislature, "ask[ing] leave of the Hon. House" to give up his seat.
Consider also a 1795 exchange of letters between De Witt Clinton, writing on behalf of his uncle George Clinton, the Governor of New York, and the New York congressional delegation. Silas Talbot, a Representative from New York, sought to resign his House seat by letter to the Governor. Clinton replied, in a letter addressed to the entire delegation, that only the House itself, and not the Governor, was competent to declare Talbot's seat vacant. The delegation replied that "whatever doubt might have been entertained on this point at the commencement of the government, the question has been since settled in practice .... [W]e beg leave to refer your Excellency to the printed Journals of the house of Representatives ...." In other words, they pointed to the Maryland precedents. Clinton replied (and here I paraphrase) that he really didn't give a darn what the Journals said. Talbot finished out his term (which, in fact, expired before the exchange of letters ended). In other words, we see a Maryland norm, brought to Congress by members of the Maryland congressional delegation, spread to their congressional colleagues, who then attempt to bring it back to their home states, where it surprises those familiar with their own states' legislative norms.
This may explain how resignation came to the House, but it is certainly true that resignation did, indeed, come to the House. Current federal law, in effect since 1872, allows states to set the time for filling House vacancies, "whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected." (Emphasis added.) This explicit recognition of the possibility of resignation is accompanied by a House practice that "[a] Member properly submits his resignation to an official designated by State law and simply informs the House of his doing so, the latter communication being satisfactory evidence of the resignation." In short, the House has essentially concluded that resignation is a matter of individual right — that is, a matter for the Member alone to decide. Contra Madison in the Third Congress, a vote is no longer taken.
In my next post, I'll argue that longstanding congressional practice notwithstanding, there are good reasons for requiring the House to vote to accept resignations. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 36-46 of the article draft on SSRN.
Starting Anew on House Resignations,
or, Part V of Leaving the House. I've argued that the Constitution gives the House of Representatives the power to refuse resignations, and I've shown that this power has never been exercised. So, what now?
I'm going to suggest in this post that there are good reasons for ceasing to treat House resignations as a matter of right. Both of the reasons I suggest sound in republican political theory.
First, a couple of preliminaries: (1) The 1872 statute that I mentioned in my previous post poses no bar to altering House rules so as to require the House to accept resignations — the Rules of Proceedings Clause makes it clear that a statute cannot entrench a House rule so as to prevent its being altered by resolution. (I make this argument at greater length in my book, and others have made it, as well.) (2) I am not arguing that the current system is unconstitutional. Current House rules can be understood as automatic acceptance of tendered resignations — the fact that the House (as I have argued) has the power to refuse resignations does not mean that it is obligated to exercise that power. Therefore, (3) my argument that the House should alter its rules so as to hold a vote on tendered resignations is a policy-based argument, although, as Larry Solum has helpfully pointed out, and as I have tried to suggest in the article, those policy considerations are very much informed by constitutional values.
With those preliminaries in mind, I suggest that there are two paradigm cases which point to the desirability of requiring the House to vote on resignations. First, there is the punishment of Representatives who violate House ethics rules or the law. As I argued in this 2006 New York Times op-ed and this Yale Law Journal Comment (link in PDF), Congress could go a long way toward restoring public confidence in itself if it took more seriously its constitutional role as enforcer of its own ethical discipline. As we all know, members of Congress frequently resign when they are under an ethical cloud. The obvious implication of such resignations is that they prefer resignation to expulsion — you can't fire me; I quit! And while the House's punishment power extends to punishing former members for acts done while members, the House tends (understandably) to take an "out of sight; out of mind" approach.
But it seems to me that there is significant public benefit in forcing the House to make institutional comment on the behavior of its members — you can't quit; we're firing you!. We tend to think that self-discipline is a good thing, no less in corporate bodies than in individuals, and a body that has allowed a corrupt member to slink away into the night while muttering about "spending more time with his family" has failed to be self-disciplined. That cannot but affect our impression of our Congress, and I think it is no wonder that an institution which so frequently allows this to happen is held in such low esteem generally.
If inaction was not an option — that is, if the House had to vote on whether or not to accept the member's resignation — it might decide that it would be just as easy (and considerably more cathartic) to vote instead to expel him. The expressive value of such expulsions might do a lot to increase the public perception of congressional ethical
Note that this rationale for refusing to allow resignations as a matter of right does not presuppose that Members will actually be kept in the House against their will. Rather, it changes the terms of the bargaining over how they leave the House. Under the current rules, the individual Member holds all of the power, as the decision is entirely hers. But the change proposed here would shift power to the House — it would allow the House as an institution to dictate the terms on which a Member leaves. More importantly, however, it would constrain the House in dictating those terms: if there has to be a floor vote, and Members have to vote either way, then they will have to explain why they voted to let an obviously corrupt Member walk away without any sort of condemnation. In short, Members under an ethical cloud who want to leave the House will still leave the House — but their colleagues will be forced to contemplate whether the voters consider the ethical transgressions of that Member sufficiently egregious to demand institutional comment by the House. That is, the expressive costs of allowing a Member to resign for spurious reasons will be internalized by the House, rather than externalized onto the polity.
The second paradigm case for requiring a House vote on resignations is the member who seeks to resign because he is simply sick of the job or wishes to take a job that is more lucrative or personally convenient. Allowing this member to resign as a matter of right sends the message that legislative service is just a job, something that one does for personal reasons. I suggest that a more normatively appealing conception of legislative service is as a republican duty — something akin to service in a volunteer military, which, while undertaken voluntarily, then cannot be quit until the terms of service are satisfied.
House service is unlikely to be foisted on one who did not seek it. Is it really so onerous to tell a person who ran for a House seat that she must remain there for two years? Members are well-compensated, in both financial and psychic wages, but for that compensation we have a right to demand that they commit to putting the public interest above their own for a short period. Allowing resignation as a matter of right sends the message that House service is a job like any other, a job that one takes because it suits one's ends, rather than a trust one holds to serve a greater good. In contrast, when leaving the House is a matter of legislative grace, rather than individual right, the message is sent that devotion to the public weal is held above desire for personal gain. This, I suggest, is closer to our aspirational conception of the House of Representatives.
It is, again, worth noting that this republican value does not depend on any Member's actually being refused permission to leave the House, and, again, it seems unlikely that Members would frequently be refused permission to leave. Rather, the value is in the mere fact that the Member has to ask. In so doing, she reinforces both the reality and the public perception of what a Representative's relationship to the polity ought to be.
This concludes my summary of the article. In my final post, I'll reply to some of the comments on my previous posts. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 46-55 of the article draft on SSRN.
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?)
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.