DOUGLAS, J., Statement
SUPREME COURT OF THE UNITED STATES
395 U.S. 486
Powell v. McCormack
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 138 Argued:
April 21, 1969 --- Decided: June 16, 1969
MR. JUSTICE DOUGLAS.
While I join the opinion of the Court, I add a few
words. As the Court says, the important constitutional question is
whether the Congress has the power to deviate from or alter the
qualifications for membership as a Representative contained in Art. I,
§ 2, cl. 2, of the Constitution.
[n1] Up to now, the understanding has been quite clear
to the effect that such authority does not exist.
[n2] To be sure, Art. I, § 5, provides that: "Each
[p552] House shall be the Judge of the
Elections, Returns and Qualifications of its own Members. . . ."
Contests may arise over whether an elected official meets the
"qualifications" of the Constitution, in which event the House is the
sole judge.
[n3] But the House is not the sole judge when
"qualifications" are added which are not specified in the
Constitution.
[n4] [p553]
A man is not seated because he is a Socialist or a
Communist.
[n5]
Another is not seated because, in his district,
members of a minority are systematically excluded from voting.
[n6]
Another is not seated because he has spoken out in
opposition to the war in Vietnam.
[n7]
The possible list is long. Some cases will have
the racist overtones of the present one.
Others may reflect religious or ideological
clashes.
[n8]
At the root of all these cases, however, is the
basic integrity of the electoral process. Today we proclaim the
constitutional principle of "one man, one vote." When that principle
is followed and the electors choose a person who is repulsive to the
Establishment in Congress, by what constitutional authority can that
group of electors be disenfranchised?
By Art. I, § 5, the House may "expel a Member" by
a vote of two-thirds. And if this were an expulsion case, I would
think that no justiciable controversy would be presented, the vote of
the House being two-thirds or more. But it is not an expulsion case.
Whether it could have been won as an expulsion case no one knows.
Expulsion for "misconduct" may well raise different questions,
different considerations. Policing the conduct of members, a recurring
problem in the Senate and House as well, is quite different from the
initial decision whether an elected official should be seated. It well
might be easier to bar admission than to expel one already seated.
The House excluded Representative-elect Powell
from the 90th Congress allegedly for misappropriating public funds and
for incurring the contempt of New York [p554]
courts.
[n9] Twenty-six years earlier, members of the upper
chamber attempted to exclude Senator-elect William Langer of North
Dakota for like reasons.
[n10] Langer first became State's Attorney for Morton
County, North Dakota, from 1914 to 1916, and then served as State
Attorney General from 1916 to 1920. He became Governor of the State in
1932, and took office in January, 1933. In 1934, he was indicted for
conspiring to interfere with the enforcement of federal law by
illegally soliciting political contributions from federal employees,
and suit was filed in the State Supreme Court to remove him from
office.
[n11] While that suit was pending, he called the State
Legislature into special session.
[n12] When it became clear that the court would order
his ouster, he signed a Declaration of Independence, invoked martial
law, and called out the National Guard.
[n13] Nonetheless, when his own officers refused to
recognize him as the legal head of state, he left office in July,
1934. As with Adam Clayton Powell, however, the people of the State
still wanted him. In 1937, they reelected him Governor and, in 1940,
they sent him to the United States Senate.
During the swearing-in ceremonies, Senator Barkley
drew attention to certain complaints filed against Langer by citizens
of North Dakota, yet asked that he be allowed to take the oath of
office
without prejudice, which is a two-sided
proposition -- without prejudice to the Senator and without
[p555] prejudice to the Senate in the
exercise of its right [to exclude him].
[n14]
The matter of Langer's qualifications to serve in
the Senate was referred to committee, which held confidential hearings
on January 9 and 16, 1941, and open hearings on November 3 and 18,
1941. By a vote of 14 to 2, the committee reported that a majority of
the Senate had jurisdiction under Art. I, § 5, cl. 1, of the
Constitution to exclude Langer; and, by a vote of 13 to 3, it reported
its recommendation that Langer not be seated.
[n15]
The charges against Langer were various. As with
Powell, they included claims that he had misappropriated public funds
[n16] and that he had interfered with the judicial
process in a way that beclouded the dignity of Congress.
[n17] Reference was also made to his professional ethics
as a lawyer.
[n18]
Langer enjoyed the powerful advocacy of Senator
Murdock from Utah. The Senate debate itself raged
[p556] for over a year.
[n19] Much of it related to purely factual allegations
of "moral turpitude." Some of it, however, was addressed to the power
of the Senate under Art. I, § 5, cl. 1, to exclude a member-elect for
lacking qualifications not enumerated in Art. I, § 3.
Mr. MURDOCK. . . . [U]nder the Senator's theory
that the Senate has the right to add qualifications which are not
specified in the Constitution, does the Senator believe the Senate
could adopt a rule specifying intellectual and moral qualifications?
[n20]
Mr. LUCAS. The Senate can do anything it wants
to do. . . . Yes; the Senate can deny a person his seat simply because
it does not like the cut of his jaw, if it wishes to.
[n21]
Senator Murdock argued that the only
qualifications for service in the Senate were those enumerated in the
Constitution; that Congress had the power to review those enumerated
qualifications; but that it could not -- while purporting to "judge"
those qualifications -- in reality add to them.
Mr. LUCAS. The Senator referred to article I,
section 5. What does he think the framers of the Constitution meant
when they gave to each House the power to determine or to judge the
qualifications, and so forth, of its own Members?
[n22]
Mr. MURDOCK. I construe the term "judge" to mean
what it is held to mean in its common, ordinary usage. My
understanding of the definition of the [p557]
word "judge," as a verb, is this: when we judge of a thing, it is
supposed that the rules are laid out; the law is there for us to look
at and to apply to the facts.
But whoever heard the word "judge" used as
meaning the power to add to what already is the law?
[n23]
It was also suggested from the floor that the
enumerated qualifications in § 3 were only a minimum which the Senate
could supplement, and that the Founding Fathers so intended by using
words of the negative. To which Senator Murdock replied --
Mr. President, I think it is the very
distinguished and able Senator from Georgia who makes the contention
that the constitutional provisions relating to qualifications, because
they are stated in the negative -- that is, "no person shall be a
Senator" -- are merely restrictions or prohibitions on the State; but
-- and I shall read it later on -- when we read what Madison said,
when we read what Hamilton said, when we read what the other framers
of the Constitution said on that question, there cannot be a doubt as
to what they intended and what they meant.
[n24]
* * * *
Madison knew that the qualifications should be
contained in the Constitution, and not left to the whim and caprice of
the legislature.
[n25]
* * * *
Bear that in mind, that the positive or
affirmative phraseology was not changed to the negative by debate or
by amendment in the convention, but it [p558]
was changed by the committee of which Madison was a member, the
committee on style.
[n26]
The Senate was nonetheless troubled by the
suggestion that the Constitution compelled it to accept anyone whom
the people might elect, no matter how egregious and even criminal his
behavior. No need to worry, said Murdock. It is true that the Senate
cannot invoke its majority power to "judge" under Art. I, § 5, cl. 1,
as a device for excluding men elected by the people who possess the
qualifications enumerated by the Constitution. But it does have the
power under Art. I, § 5, cl. 2, to expel anyone it designates by a
two-thirds vote. Nonetheless, he urged the Senate not to bypass the
two-thirds requirement for expulsion by wrongfully invoking its power
to exclude.
[n27]
Mr. LUCAS. . . . The position the Senator from
Utah takes is that it does not make any difference what a Senator does
in the way of crime, that, whenever he is elected by the people of his
State, comes here with bona fide credentials, and there is no
fraud in the election, the Senate cannot refuse to give him the oath.
That is the position the Senator takes?
Mr. MURDOCK. That is my position, yes.
[n28]
* * * *
My position is that we do not have the right to
exclude anyone who comes here clothed with the proper credentials and
possessing the constitutional qualifications. My position is that we
do not have [p559] the right under the
provision of the Constitution to which the Senator from Florida
referred, to add to the qualifications. My position is that the State
is the sole judge of the intellectual and the moral qualifications of
the representatives it sends to Congress.
[n29]
MR. MURDOCK [quoting Senator Philander Knox]. "I
know of no defect in the plain rule of the Constitution for which I am
contending. . . . I cannot see that any danger to the Senate lies in
the fact that an improper character cannot be excluded without a
two-thirds vote. It requires the unanimous vote of a jury to convict a
man accused of crime; it should require, and I believe that it does
require, a two-thirds vote to eject a Senator from his position of
honor and power, to which he has been elected by a sovereign State."
[n30]
Thus, after a year of debate, on March 27, 1942,
the Senate overruled the recommendation of its committee and voted 52
to 30 to seat Langer.
I believe that Senator Murdock stated the correct
constitutional principle governing the present case.
No Person shall be a Representative who shall
not have attained to the age of twenty five Years, and been seven
Years a Citizen of the United States, and who shall not, when elected,
be an Inhabitant of that State in which he shall be chosen.
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.
2 M Farrand, Records of the Federal Convention of
1787, pp. 249-250 (1911). Alexander Hamilton echoed that same
conclusion:
The qualifications of the persons who may choose
or be chosen, as has been remarked upon other occasions, are defined
and fixed in the Constitution, and are unalterable by the legislature.
The Federalist Papers, No. 60, p. 371 (Mentor
ed.1961). And so, too, the early Congress of 1807 decided to seat
Representative-elect William McCreery on the ground that its power to
"judge" was limited by the enumerated qualifications.
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. . . . 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.
17 Annals of Cong. 872 (1807) (remarks of Rep.
Findley, Chairman of House Committee of Elections). Constitutional
scholars of two centuries have reaffirmed the principle that
congressional power to "judge" the qualifications of its members is
limited to those enumerated in the Constitution. 1 J. Story,
Commentaries on the Constitution 462 (5th ed. 1891); C. Warren, The
Making of the Constitution 420-426 (1928). See also remarks by
Emmanuel Celler, Chairman of the House Select Committee which inquired
into the qualifications of Adam Clayton Powell, Jr., and which
recommended seating him:
The Constitution lays down three qualifications
for one to enter Congress -- age, inhabitancy, citizenship. Mr. Powell
satisfies all three. The House cannot add to these qualifications.
113 Cong.Rec. 4998.
[C]ases may readily be postulated where the
action of a House in excluding or expelling a Member may directly
impinge upon rights under other provisions of the Constitution. In
such cases, the unavailability of judicial review may be less certain.
Suppose, for example, that a Member was excluded or expelled because
of his religion or race, contrary to the equal protection clause, or
for making an unpopular speech protected by the first amendment. . . .
[E]xclusion of the Member-elect on grounds other than age,
citizenship, or inhabitancy could raise an equally serious
constitutional issue.
H.R.Rep. No. 27, 90th Cong., 1st Sess., 30 (1967).
See also 113 Cong.Rec. 4994.
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