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A Non-Member Speaker in 18th Century Britain and under the U.S. Constitution (Part II)
Seth Barrett Tillman

At the opening of Parliament, the Lord Chancellor (in the King’s name) commanded the Commons to choose a Speaker. The Chancellor (again, in the King’s name) also commanded the Commons to choose “one of their members” for that position. See Henry Elsynge, The Manner of Holding Parliaments in England 155 (London, printed by Richardson and Clark for Tho. Payne 1768) (1st print 1660) (at the opening of a new Parliament “the lord chancellor confers first with his majesty, and then in his name commands the commons to assemble in their house, and to choose one of their members to be their speaker” (bold added)); George Petyt, Lex Parliamentaria: or, A Treatise of the Law and Custom of Parliaments 265 (London, Henry Lintot 3d ed. 1748) (same).

First, it is possible that this second command (in regard to choosing a Speaker from among the members) was implicit in the first command (to choose a Speaker). In other words, the selection of a member might have been understood as implicit in the meaning of the term “Speaker”.

Second, even if the meaning of “Speaker” was not understood as being a person necessarily selected from among the members, it is also possible that this second command (in regard to choosing a Speaker from among the members) merely announced a free-standing background mandatory legal convention which was widely understood and shared.

Both of these two hypotheses are possible.

But there is no good reason to favor one over the other, nor is there any good reason to assume either is presumptively correct. Indeed, I could just as easily argue that the very fact that the Chancellor had to command the selection of a Speaker from among the members indicates that that members would otherwise have been free to select anyone at all.

Of course, I cannot entirely rule out redundancy. The Chancellor’s statement might have merely announced what everyone knew to be an established legal convention (rather than an a mere expectation or aspiration). But I have no reason to assume redundancy. Again, I could just as easily hypothesize that the restriction on the House’s choice might have reflected a free-standing restriction imposed by the King on the House of Commons, and absent that express imposition at the opening of Parliament, this restriction was not otherwise a mandatory component of lex parliamentaria.

To put it another way, our Constitution has maintained only the tradition of expressly commanding the members to choose a Speaker, but it broke with the extant tradition of expressly commanding the members to select only a member. This might represent a rejection of the background legal convention (even assuming it existed).

 Likewise, one could also take the view that the British background legal convention (assuming it existed) might have been dependent on other extant correlative British parliamentary conventions which do not exist in our system.

 For example, the (purported) British background legal convention (i.e., only a member may be speaker) depended on the monarch’s summoning Parliament into existence, on the monarch’s having the prerogative to prorogue Parliament’s (and each house’s) sessions, on the monarch’s having the prerogative to terminate a (particular) Parliament’s existence, and also on the monarch’s having the prerogative to reject the popular house’s choice of Speaker. The monarch’s greater power to reject the Commons’ choice of Speaker includes the monarch’s lesser power to limit the members’ choice to a sitting member. But the President of the United States does not enjoy this greater power; the President has no power to reject the House’s choice of Speaker.

 Moreover, our Constitution has no monarch; our Constitution has no rich tradition of the executive magistrate exercising prerogative-like powers in relation to Congress, and, finally, the Constitution (substantially) broke with all these specific British parliamentary conventions. So there is no presumption or reason to maintain that the Constitution singularly retained the particular background foreign legal convention at issue here (even assuming that there was a background British legal convention limiting the choice of Speaker to a member).

 The fact that every English and British parliament since Montfort’s parliament had a member-speaker, along with every (colonial and state) 18th century New World popularly elected assembly (or if bicameral, then in its larger popular assembly), does not establish the existence of a background mandatory legal convention in regard to our Constitution. The fact that a practice is maintained and adhered to only establishes that positive law was never needed to regulate the members in such circumstances. But life and law are full of cultural conventions and folkways which are adhered to and so never made a subject of positive law. The widespread adherence to such nonlegal cultural conventions and folkways does not mature into self-limiting and self-fulfilling inexorable legal obligations and commands, much less constitutional commands. See, e.g., Thomas Jefferson, A Manual of Parliamentary Practice (Washington, John Milligan & William Cooper 2d ed. 1812):

The House of Representatives shall ch[oo]se their Speaker and other officers. Constitution I. 2. When but one person is proposed, and no objection made, it has not been usual in Parliament to put any question to the House; but without a question, the members proposing him conduct him to the chair. But if there be objection, or another proposed, a question is put by the clerk. 2. Hats. 158. As are also questions of adjournment. 6 Grey. 406. Where the House debated and exchanged messages and answers with the king for a week, without a Speaker, till they were prorogued. They have done it de diem in diem for fourteen days. 1. Chand. 331. 335.

Id. § 9 (explaining the procedure for selecting a Speaker). Notwithstanding his frequently relying on Elsynge, Jefferson makes no mention of any limitation in regard to whom the House may select.

It is all too easy to confuse our own modern expectations as the expectations of the Framers and Ratifiers, and then to further expand their purported views into actual legal commands. But such historical fictions in the name of the Constitution impose on the democratic components of the Constitution and undermine the rule of law.

Our written Constitution states: “The House of Representatives shall ch[oo]se their Speaker and other officers.” And that is all it states.

[For a different view of the Elsynge-Petyt materials see Mike Rappaport, The Speaker of the House of Commons Appears to Have Been Required to Be a Member.]