WARREN, J., Opinion of the Court

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

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

In November, 1966, petitioner Adam Clayton Powell, Jr., was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. However, pursuant to a House resolution, he was not permitted to take his seat. Powell (and some of the voters of his district) then filed suit in Federal District Court, claiming that the House could exclude him only if it found he failed to meet the standing requirements of age, citizenship, and residence contained in Art. I, § 2, of the Constitution -- requirements the House specifically found Powell met -- and thus had excluded him unconstitutionally. The District Court dismissed petitioners' complaint "for want of jurisdiction of the subject matter." A panel of the Court of Appeals affirmed the dismissal, although on somewhat different grounds, each judge filing a separate opinion. We have determined that it was error to dismiss the complaint, and that petitioner Powell is entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress.

I

FACTS

During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner [p490] Adam Clayton Powell, Jr., was chairman. The Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. See H.R.Rep. No. 2349, 89th Cong., 2d Sess., 6-7 (1966). No formal action was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor. See H.R.Rep. No. 27, 90th Cong., 1st Sess., 1-2 (1967).

When the 90th Congress met to organize in January, 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. After some debate, by a vote of 363 to 65, the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell's eligibility. 113 Cong.Rec. 26-27. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee's report, it did provide that he should receive all the pay and allowances due a member during the period.

The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt), and "[m]atters of . . . alleged official misconduct since January 3, 1961." See Hearings on [p491] H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell appeared at the Committee hearing held on February 8, 1967. After the Committee denied in part Powell's request that certain adversary-type procedures be followed, ^[n1] Powell testified. He would, however, give information relating only to his age, citizenship, and residency; upon the advice of counsel, he refused to answer other questions.

On February 10, 1967, the Select Committee issued another invitation to Powell. In the letter, the Select Committee informed Powell that its responsibility under the House Resolution extended to determining not only whether he met the standing qualifications of Art. I, § 2, but also to

inquir[ing] into the question of whether you should be punished or expelled pursuant to the powers granted . . . the House under Article I, Section 5, . . . of the Constitution. In other words, the Select Committee is of the opinion that, at the conclusion of the present inquiry, it has authority to report back to the House recommendations with respect to . . . seating, expulsion or other punishment.

See Hearings 110. Powell did [p492] not appear at the next hearing, held February 14, 1967. However, his attorneys were present, and they informed the Committee that Powell would not testify about matters other than his eligibility under the standing qualifications of Art. I, § 2. Powell's attorneys reasserted Powell's contention that the standing qualifications were the exclusive requirements for membership, and they further urged that punishment or expulsion was not possible until a member had been seated. See Hearings 111-113.

The Committee held one further hearing at which neither Powell nor his attorneys were present. Then, on February 23, 1967, the Committee issued its report, finding that Powell met the standing qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st Sess., 31 (1967). However, the Committee further reported that Powell had asserted an unwarranted privilege and immunity from the processes of the courts of New York; that he had wrongfully diverted House funds for the use of others and himself, and that he had made false reports on expenditures of foreign currency to the Committee on House Administration. Id. at 31-32. The Committee recommended that Powell be sworn and seated as a member of the 90th Congress, but that he be censured by the House, fined $40,000, and be deprived of his seniority. Id. at 33.

The report was presented to the House on March 1, 1967, and the House debated the Select Committee's proposed resolution. At the conclusion of the debate, by a vote of 222 to 202 the House rejected a motion to bring the resolution to a vote. An amendment to the resolution was then offered; it called for the exclusion of Powell and a declaration that his seat was vacant. The Speaker ruled that a majority vote of the House would be sufficient to pass the resolution if it were so [p493] amended. 113 Cong.Rec. 5020. After further debate, the amendment was adopted by a vote of 248 to 176. Then the House adopted by a vote of 307 to 116 House Resolution No. 278 in its amended form, thereby excluding Powell and directing that the Speaker notify the Governor of New York that the seat was vacant.

Powell and 13 voters of the 18th Congressional District of New York subsequently instituted this suit in the United States District Court for the District of Columbia. Five members of the House of Representatives were named as defendants individually and "as representatives of a class of citizens who are presently serving . . . as members of the House of Representatives." John W. McCormack was named in his official capacity as Speaker, and the Clerk of the House of Representatives, the Sergeant at Arms and the Doorkeeper were named individually and in their official capacities. The complaint alleged that House Resolution No. 278 violated the Constitution, specifically Art. I, § 2, cl. 1, because the resolution was inconsistent with the mandate that the members of the House shall be elected by the people of each State, and Art. I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive qualifications for membership. ^[n2] The complaint further alleged that the Clerk of the House threatened to refuse to perform the service for Powell to which a duly elected Congressman is entitled, that the Sergeant at Arms refused to pay Powell his salary, and that the Doorkeeper threatened to deny Powell admission to the House chamber. [p494]

Petitioners asked that a three-judge court be convened. ^[n3] Further, they requested that the District Court grant a permanent injunction restraining respondents from executing the House Resolution, and enjoining the Speaker from refusing to administer the oath, the Clerk from refusing to perform the duties due a Representative, the Sergeant at Arms from refusing to pay Powell his salary, and the Doorkeeper from refusing to admit Powell to the Chamber. ^[n4] The complaint also requested a declaratory judgment that Powell's exclusion was unconstitutional.

The District Court granted respondents' motion to dismiss the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F.Supp. 354 (D.C. D.C.1967). ^[n5] The Court of Appeals for the District of Columbia Circuit affirmed on somewhat different grounds, with each judge of the panel filing a separate opinion. Powell v. McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We granted certiorari. 393 U.S. 949 (1968). While the case was pending on our docket, the 90th Congress officially terminated, and the 91st Congress was seated. In November, 1968, Powell was again elected as the representative of the 18th Congressional District of New York, and he was seated by the 91st Congress. The resolution seating Powell also [p495] fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents then filed a suggestion of mootness. We postponed further consideration of this suggestion to a hearing on the merits. 393 U.S. 1060 (1969).

Respondents press upon us a variety of arguments to support the court below; they will be considered in the following order. (1) Events occurring subsequent to the grant of certiorari have rendered this litigation moot. (2) The Speech or Debate Clause of the Constitution, Art. I, § 6, insulates respondents' action from judicial review. (3) The decision to exclude petitioner Powell is supported by the power granted to the House of Representatives to expel a member. (4) This Court lacks subject matter jurisdiction over petitioners' action. (5) Even if subject matter jurisdiction is present, this litigation is not justiciable either under the general criteria established by this Court or because a political question is involved.

II

MOOTNESS

After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969, the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat petitioner Powell, and that, since the House of Representatives is not a continuing body ^[n6] [p496] and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved, and thus this litigation present a "case or controversy" within the meaning of Art. III: ^[n7] (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as "punishment" a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969), and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress, and thus find it unnecessary to determine whether the other issues have become moot. ^[n8]

Simply stated, a case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory [p497] Judgments 35-37 (2d ed.1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell, 330 U.S. 75, 86-94 (1947); 6A J. Moore, Federal Practice 1157.13 (2d ed.1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U.S. 528 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all "prerogatives, privileges and emoluments" for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte, ^[n9] the Court considered whether the possibility that Alejandrino was entitled to back salary required it "to retain the case for the purpose of determining whether he [Alejandrino] may not have a mandamus for this purpose." Id. at 533. Characterizing the issue of Alejandrino's salary as a "mere incident" to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue, and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id. at 533-534. The Court therefore refused to treat the salary claim and dismissed the entire action as moot. [p498]

Respondents believe that Powell's salary claim is also a "mere incident" to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request. ^[n10] By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official. ^[n11]

Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitutional House resolution. That claim is still unresolved, and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available [p499] when Alejandrino was decided. ^[n12] A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers v. Mitchell, supra, at 93; cf. United States v. California, 332 U.S. 19, 25-26 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir.1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir.1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot. ^[n13] There is no suggestion that petitioners' averments as to declaratory relief are insufficient, and Powell's allegedly unconstitutional deprivation of salary remains unresolved.

Respondents further argue that Powell's "wholly incidental and subordinate" demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the "primary and principal relief" sought was the seating of petitioner Powell in the 90th Congress, rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U.S. 116 (1966), rejects respondents' theory that the mootness of a "primary" claim requires a conclusion that all "secondary" claims are moot. At the Bond oral argument, it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered [p500] the case moot. We replied:

The State has not pressed this argument, and it could not do so, because the State has stipulated that, if Bond succeeds on this appeal, he will receive back salary for the term from which he was excluded.

385 U.S. at 128, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966, ^[n14] and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated, while, in this case, Powell has been. ^[n15] Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot.

Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation. ^[n16] [p501]

III

SPEECH OR DEBATE CLAUSE

Respondents assert that the Speech or Debate Clause of the Constitution, Art. I, § 6, ^[n17] is an absolute bar to petitioners' action. This Court has on four prior occasions -- Dombrowski v. Eastland, 387 U.S. 82 (1967); United States v. Johnson, 383 U.S. 169 (1966); Tenney v. Brandhove, 341 U.S. 367 (1951), and Kilbourn v. Thompson, 103 U.S. 168 (1881) -- been called upon to determine if allegedly unconstitutional action taken by legislators or legislative employees is insulated from judicial review by the Speech or Debate Clause. Both parties insist that their respective positions find support in these cases, and tender for decision three distinct issues: (1) whether respondents, in participating in the exclusion of petitioner Powell, were "acting in the sphere of legitimate legislative activity," Tenney v. Brandhove, supra, at 376; (2) assuming that respondents were so acting, whether the fact that petitioners seek neither damages from any of the respondents nor a criminal prosecution lifts the bar of the clause; ^[n18] and (3) even if this [p502] action may not be maintained against a Congressman, whether those respondents who are merely employees of the House may plead the bar of the clause. We find it necessary to treat only the last of these issues.

The Speech or Debate Clause, adopted by the Constitutional Convention without debate or opposition, ^[n19] finds its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689. ^[n20] Drawing upon this history, we concluded in United States v. Johnson, supra, at 181, that the purpose of this clause was "to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile Judiciary." Although the clause sprang from a fear of seditious libel actions instituted by the Crown to punish unfavorable speeches made in Parliament, ^[n21] we have held that it would be a "narrow view" to confine the protection of the Speech or Debate Clause to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are "things generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, supra, at 204. Furthermore, the clause not only provides a [p503] defense on the merits, but also protects a legislator from the burden of defending himself. Dombrowski v. Eastland, supra, at 85; see Tenney v. Brandhove, supra, at 377.

Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. Thus, in Tenney v. Brandhove, supra, at 373, the Court quoted the writings of James Wilson as illuminating the reason for legislative immunity:

In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of everyone, however powerful, to whom the exercise of that liberty may occasion offence. ^[n22]

Legislative immunity does not, of course, bar all judicial review of legislative acts. That issue was settled by implication as early as 1803, see Marbury v. Madison, 1 Cranch 137, and expressly in Kilbourn v. Thompson, the first of this Court's cases interpreting the reach of the Speech or Debate Clause. Challenged in Kilbourn was the constitutionality of a House Resolution ordering the arrest and imprisonment of a recalcitrant witness who had refused to respond to a subpoena issued by a House investigating committee. While holding that the Speech or Debate Clause barred Kilbourn's action for false imprisonment brought against several members of the House, the Court nevertheless reached the merits of Kilbourn's attack, and decided that, since the House had no power to punish for contempt, Kilbourn's imprisonment [p504] pursuant to the resolution was unconstitutional. It therefore allowed Kilbourn to bring his false imprisonment action against Thompson, the House's Sergeant at Arms, who had executed the warrant for Kilbourn's arrest.

The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland ^[n23] the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees -- the Sergeant at Arms, the Doorkeeper and the Clerk -- as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that, in Kilbourn, the presence of the Sergeant at Arms, and, in Dombrowski, the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. Here, they continue, the relief sought relates to actions taken by House agents solely within the House. Alternatively, respondents insist that Kilbourn and Dombrowski prayed for damages, while petitioner Powell asks that the Sergeant at Arms disburse funds, an assertedly greater interference with the legislative process. We reject the proffered distinctions.

That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision. [p505] Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned. ^[n24] Respondents' suggestions thus ask us to distinguish between affirmative acts of House employees and situations in which the House orders its employees not to act or between actions for damages and claims for salary. We can find no basis in either the history of the Speech or Debate Clause or our cases for either distinction. The purpose of the protection afforded legislators is not to forestall judicial review of legislative action, but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions. A legislator is no more or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. Nor is the distraction or hindrance increased because the claim is for salary, rather than damages, or because the litigation questions action taken by the employee within, rather than without, the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves. ^[n25] In Kilbourn and Dombrowski, [p506] we thus dismissed the action against members of Congress, but did not regard the Speech or Debate Clause as a bar to reviewing the merits of the challenged Congressional action, since congressional employees were also sued. Similarly, though this action may be dismissed against the Congressmen, petitioners are entitled to maintain their action against House employees and to judicial review of the propriety of the decision to exclude petitioner Powell. ^[n26] As was said in Kilbourn, in language which time has not dimmed:

Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws because, living under a written constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution, and, if they have not, to treat their acts as null and void.

103 U.S. at 199.

IV

EXCLUSION OR EXPULSION

The resolution excluding petitioner Powell was adopted by a vote in excess of two-thirds of the 434 Members of [p507] Congress, 307 to 116. 113 Cong.Rec. 5037-5038. Article I, § 5, grants the House authority to expel a member "with the Concurrence of two thirds." ^[n27] Respondents assert that the House may expel a member for any reason whatsoever, and that, since a two-thirds vote was obtained, the procedure by which Powell was denied his seat in the 90th Congress should be regarded as an expulsion, not an exclusion. Cautioning us not to exalt form over substance, respondents quote from the concurring opinion of Judge McGowan in the court below:

Appellant Powell's cause of action for a judicially compelled seating thus boils down, in my view, to the narrow issue of whether a member found by his colleagues . . . to have engaged in official misconduct must, because of the accidents of timing, be formally admitted before he can be either investigated or expelled. The sponsor of the motion to exclude stated on the floor that he was proceeding on the theory that the power to expel included the power to exclude, provided a 2/3 vote was forthcoming. It was. Therefore, success for Mr. Powell on the merits would mean that the District Court must admonish the House that it is form, not substance, that should govern in great affairs, and accordingly command the House members to act out a charade.

129 U.S.App.D.C. at 383-384, 395 F.2d at 606-607. [p508]

Although respondents repeatedly urge this Court not to speculate as to the reasons for Powell's exclusion, their attempt to equate exclusion with expulsion would require a similar speculation that the House would have voted to expel Powell had it been faced with that question. Powell had not been seated at the time House Resolution No. 278 was debated and passed. After a motion to bring the Select Committee's proposed resolution to an immediate vote had been defeated, an amendment was offered which mandated Powell's exclusion. ^[n28] Mr. Celler, chairman of the Select Committee, then posed a parliamentary inquiry to determine whether a two-thirds vote was necessary to pass the resolution if so amended "in the sense that it might amount to an expulsion." 113 Cong.Rec. 5020. The Speaker replied that "action by a majority vote would be in accordance with the rules." Ibid. Had the amendment been regarded as an attempt to expel Powell, a two-thirds vote would have been constitutionally required. The Speaker ruled that the House was voting to exclude Powell, and we will not speculate what the result might have been if Powell had been seated and expulsion proceedings subsequently instituted.

Nor is the distinction between exclusion and expulsion merely one of form. The misconduct for which Powell was charged occurred prior to the convening of the 90th Congress. On several occasions, the House has debated whether a member can be expelled for actions taken during a prior Congress, and the House's own manual of procedure applicable in the 90th Congress states that "both Houses have distrusted their power to punish in such cases." Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., 25 (1967); [p509] see G. Galloway, History of the House of Representatives 32 (1961). The House rules manual reflects positions taken by prior Congress. For example, the report of the Select Committee appointed to consider the expulsion of John W. Langley states unequivocally that the House will not expel a member for misconduct committed during an earlier Congress:

[I]t must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, "That has been so frequently decided in the House that it is no longer a matter of dispute."

H.R.Rep. No. 30, 69th Cong., 1st Sess., 1-2 (1925). ^[n29] [p510] Members of the House having expressed a belief that such strictures apply to its own power to expel, we will not assume that two-thirds of its members would have expelled Powell for his prior conduct had the Speaker announced that House Resolution No. 278 was for expulsion, rather than exclusion. ^[n30]

Finally, the proceedings which culminated in Powell's exclusion cast considerable doubt upon respondents' assumption that the two-thirds vote necessary to expel would have been mustered. These proceedings have been succinctly described by Congressman Eckhardt:

The House voted 202 votes for the previous question ^[n31] leading toward the adoption of the [Select] Committee report. It voted 222 votes against the previous question, opening the floor for the Curtis Amendment, which ultimately excluded Powell. [p511]

Upon adoption of the Curtis Amendment, the vote again fell short of two-thirds, being 248 yeas to 176 nays. Only on the final vote, adopting the Resolution as amended, was more than a two-thirds vote obtained, the vote being 307 yeas to 116 nays. On this last vote, as a practical matter, members who would not have denied Powell a seat if they were given the choice to punish him had to cast an aye vote or else record themselves as opposed to the only punishment that was likely to come before the House. Had the matter come up through the processes of expulsion, it appears that the two-thirds vote would have failed, and then members would have been able to apply a lesser penalty. ^[n32]

We need express no opinion as to the accuracy of Congressman Eckhardt's prediction that expulsion proceedings would have produced a different result. However, the House's own views of the extent of its power to expel [p512] combined with the Congressman's analysis counsel that exclusion and expulsion are not fungible proceedings. The Speaker ruled that House Resolution No. 278 contemplated an exclusion proceeding. We must reject respondents' suggestion that we overrule the Speaker, and hold that, although the House manifested an intent to exclude Powell, its action should be tested by whatever standards may govern an expulsion.

V

SUBJECT MATTER JURISDICTION

As we pointed out in Baker v. Carr, 369 U.S. 186, 198 (1962), there is a significant difference between determining whether a federal court has "jurisdiction of the subject matter" and determining whether a cause over which a court has subject matter jurisdiction is "justiciable." The District Court determined that "to decide this case on the merits . . . would constitute a clear violation of the doctrine of separation of powers." and then dismissed the complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F.Supp. 354, 359, 360 (D.C. D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is "justiciable." We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case. ^[n33] However, for reasons set forth in Part VI, infra we disagree with the Court of Appeals' conclusion that this case is not justiciable.

In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the [p513] cause does not "arise under" the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a "case or controversy" within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see Part VI, B(1), infra) that this cause presents no nonjusticiable "political question" disposes of respondents' contentions ^[n34] that this cause is not a "case or controversy." ^[n35]

Respondents first contend that this is not a case "arising under" the Constitution within the meaning of Art. III. They emphasize that Art. I, § 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that, under Art. I, § 3, the Senate has the "sole power" to try all impeachments. Respondents argue that these delegations (to "judge," to "punish," and to "try") to the Legislative Branch are explicit grants of "judicial power" to the Congress, and constitute specific exceptions [p514] to the general mandate of Art. III that the "judicial power" shall be vested in the federal courts. Thus, respondents maintain, the

power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed. ^[n36]

We reject this contention. Article III, § 1, provide that the "judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish." Further, § 2 mandates that the "judicial Power shall extend to all Cases . . . arising under this Constitution. . . ." It has long been held that a suit "arises under" the Constitution if a petitioner's claim "will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another." ^[n37] Bell v. Hood, 327 U.S. 678, 685 (1946). See King County v. Seattle School District No. 1, 263 U.S. 361, 363-364 (1923). Cf. Osborn v. Bank of the United States, 9 Wheat. 738 (1824). See generally C. Wright, Federal Courts 48-52 (1963). Thus, this case clearly is one "arising under" the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.

Respondents next contend that the Court of Appeals erred in ruling that petitioners' suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. § 1331(a). [p515] Section 1331(a) provides that district courts shall have jurisdiction in "all civil actions wherein the matter in controversy . . . arises under the Constitution. . . ." Respondents urge that, even though a case may "arise under the Constitution" for purposes of Art. III, it does not necessarily "arise under the Constitution" for purposes of § 1331(a). Although they recognize there is little legislative history concerning the enactment of § 1331(a), respondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of "federal question" jurisdiction.

Respondents claim that the passage of the Force Act ^[n38] in 1870 lends support to their interpretation of the intended scope of § 1331. The Force Act gives the district courts jurisdiction over

any civil action to recover possession of any office . . . wherein it appears that the sole question . . . arises out of denial of the right to vote . . . on account of race, color or previous condition of servitude.

However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen.

We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects coextensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U.S. 241, 246, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal "Question" in the District Courts, 53 Col.L.Rev. [p516] 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 6 645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112 (1936); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913).

As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. See 28 U.S.C. § 1344. Further, the Act was passed five years before the original version of 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges, ^[n39] there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in § 1331.

VI

JUSTICIABILITY

Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim [p517] presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a "political question" -- that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.

A. General Considerations

In deciding generally whether a claim is justiciable, a court must determine whether

the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.

Baker v. Carr, supra, at 198. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements, and that he was nevertheless excluded.

Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to "mold effective relief for resolving this case." Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention.

We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. § 2201 provides that a district court may "declare the rights . . . of any interested party . . . whether or not further relief is or could be sought." The [p518] availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U.S. 103 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell, 330 U.S. 75, 93 (1947); 6A J. Moore, Federal Practice ¶ 57.08[3] (2d ed.1966); cf. United States v. California, 332 U.S. 19, 25-26 (1947). We thus conclude that, in terms of the general criteria of justiciability, this case is justiciable.

B. Political Question Doctrine1. Textually Demonstrable Constitutional Commitment.

Respondents maintain that, even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U.S. 433 (1939); Oetjen v. Central Leather Co., 246 U.S. 297 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality [p519] of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217.

Respondents' first contention is that this case presents a political question because, under Art. I, 5, there has been a "textually demonstrable constitutional commitment" to the House of the "adjudicatory power" to determine Powell's qualifications. Thus, it is argued that the House, and the House alone, has power to determine who is qualified to be a member. ^[n40]

In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents [p520] maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution.

If examination of § 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, ^[n41] further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are [p521] "inextricable from the case at bar." ^[n42] Baker v. Carr, supra, at 217.

In other words, whether there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department" of government and what is the scope of such commitment are questions we must resolve for the first time in this case. ^[n43] For, as we pointed out in Baker v. Carr, supra,

[d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

Id. at 211.

In order to determine the scope of any "textual commitment" under Art. I, § 5, we necessarily must determine the meaning of the phrase to "be the Judge of the Qualifications of its own Members." Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period, and early congressional applications of Art. I, § 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that, by 1787, a legislature's power to judge the qualifications of its members was generally understood [p522] to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the "qualifications" expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish "standing incapacities," which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct, and that the Constitution leaves the House ^[n44] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

a. The Pre-Convention Precedents.

Since our rejection of respondents' interpretation of § 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents.

The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553

that Alex. Nowell, being Prebendary [i.e., a clergyman] in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House. . . .

J. Tanner, Tudor Constitutional Documents: A.D. 1485-1603, p. 596 (2d ed.1930). This decision, however, was [p523] consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons. ^[n45] See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead's English Constitutional History 14143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity. ^[n46] See 1 W. Blackstone's Commentaries *175. Nowell's exclusion, therefore, is irrelevant to the present case, for petitioners concedes -- and we agree -- that, if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, § 5. The earliest colonial exclusions also fail to support respondents' theory. ^[n47] [p524]

Respondents' remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787. ^[n48] Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for reelection, at least for the duration of the Parliament from which he was expelled, ^[n49] [p525] there is no indication that any were reelected and thereafter excluded. Respondents' colonial precedents during this period follow a similar pattern. ^[n50]

Apparently the reelection of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to "foraging the Troops," 17 H.C.Jour. 28, and committed him to the Tower. Nevertheless, two months later, he was reelected. The House thereupon resolved

[t]hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled [from] this House, . . . is incapable of being elected a Member to serve in this present Parliament. . . .

Id. at 128. (Second emphasis added.) A new election was ordered, and Walpole was not reelected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century. ^[n51] [p526]

Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. "The theory seems to have been that expulsion lasted as long as the parliament. . . ." Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone's Commentaries *176. Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i.e., that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. M. Clarke, Parliamentary Privilege in the American Colonies 196-202 (1943). ^[n52] Clearly, however, none of these cases supports respondents' contention that, by the 18th century the English Parliament [p527] and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled.

Even if these cases could be construed to support respondents' contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century -- the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown's ministers as "‘the tools of despotism and corruption.'" R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested. ^[n53] Prior to Wilkes' trial, the House of Commons expelled him for publishing "a false, scandalous, and seditious libel." 15 Parl.Hist.Eng. 1393 (1764). Wilkes then fled to France, and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956).

Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King's Bench. Wilkes was convicted of seditious libel and sentenced to 22 months' imprisonment. The new Parliament [p528] declared him ineligible for membership and ordered that he be "expelled this House." 16 Parl. Hist. Eng. 545 (1769). Although Wilkes was reelected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 11 Gipson, supra, at 207-215. ^[n54]

Wilkes was released from prison in 1770, and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of reelection expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were "subversive of the rights of the whole body of electors of this kingdom." 22 Parl.Hist.Eng. 1411 (1782).

With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that "the law of the land had regulated the qualifications of members to serve in parliament" and those qualifications were "not occasional, but fixed." 16 Parl.Hist.Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents' assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents [p529] for excluding a member-elect who had been previously expelled, ^[n55] it appears that the House of Commons also repudiated any "control over the eligibility of candidates, except in the administration of the laws which define their [standing] qualifications." T. May's Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585. ^[n56]

The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59-60, 196. Thus, in 1784, the Council of Censors of the Pennsylvania Assembly ^[n57] denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution. ^[n58] In the course of its report, the [p530] Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they "reflected dishonor on none but the authors of these violences." Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825).

Wilkes' struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes ^[n59] and his pursuit of the right to be [p531] seated in Parliament became a cause celebre for the colonists.

[T]he cry of "Wilkes and Liberty" echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wilkes' public career in the colonial press. . . . The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. . . . They named towns, counties, and even children in his honour.

11 Gipson, supra, at 222. ^[n60] It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes' final victory. [p532]

b. Convention Debates

Relying heavily on Charles Warren's analysis ^[n61] of the Convention debates, petitioners argue that the proceedings manifest the Framers' unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners' ultimate conclusion is correct.

The Convention opened in late May, 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then appointed a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause "‘requiring certain qualifications of landed property & citizenship'" and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be

impossible [p533] to make a compleat one, and a partial one would, by implication, tie up the hands of the Legislature from supplying the omissions.

Id. at 123. ^[n62] Dickinson's argument was rejected, and, after eliminating the disqualification of debtors and the limitation to "landed" property, the Convention adopted Mason's proposal to instruct the Committee of Detail to draft a property qualification. Id. at 116-117.

The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, § 2. Id. at 213. ^[n63]

On August 10, the Convention considered the Committee of Detail's proposal that the

Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.

Id. at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest

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 [p534] could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected as the number authorised to elect. . . . It was a power also which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised by the stronger in order to keep out partizans of [a weaker] faction.

Id. at 249-250. ^[n64] Significantly, Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison's arguments and those made in Wilkes' behalf is striking. ^[n65] [p535]

In view of what followed Madison's speech, it appears that, on this critical day, the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the "indisputable right [of the people] to return whom they thought proper" ^[n66] to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional, and "dangerous because it would be much more liable to abuse." Id. at 250. Gouverneur Morris then moved to strike "with regard to property" from the Committee's proposal. His intention was "to leave the Legislature entirely at large." Ibid. Hugh Williamson, of North Carolina, expressed concern that, if a majority of the legislature should happen to be "composed of any particular description of men, of lawyers for example, . . . the future elections might be secured to their own body." Ibid. ^[n67] Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected, and noted that

the abuse they had made of it was a lesson worthy of our attention. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.

Ibid. ^[n68] Shortly thereafter, [p536] the Convention rejected both Gouverneur Morris' motion and the Committee's proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be "the judge of the . . . qualifications of its own members." Id. at 254.

One other decision made the same day is very important to determining the meaning of Art. I, § 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison

observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum, and, in emergencies, [one] faction might be dangerously abused.

Id. at 254. He therefore moved that "with the concurrence of two-thirds" be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be overemphasized. None of the parties to this suit disputes that, prior to 1787, the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, § 5, cls. 1 and 2, support this conclusion. Thus, the Convention's decision to increase the vote required to expel, because that power was "too important to be exercised by a bare majority," while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted. ^[n69] [p537]

Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, § 2, cl. 2, by the Committee of Style. When the Committee of Detail reported the provision to the Convention, it read:

Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of [in] the United States for at least three years before his election, and shall be, at the time of his election, a resident of the State in which he shall be chosen.

Id. at 178. However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the "deliberations" of the Committee of Style. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the "standing incapacities" for membership in the House of Commons. See 1 W. Blackstone's Commentaries *175-176. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament, ^[n70] [p538] had added to his Commentaries after Wilkes' exclusion the assertion that individuals who were not ineligible for the Commons under the standing incapacities could still be denied their seat if the Commons deemed them unfit for other reasons. ^[n71] Since Blackstone's Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates' intention

only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis. ^[n72]

Respondents' argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents' argument misrepresents the function of the Committee of Style. It was appointed only "to revise the stile of and arrange the articles which had been agreed to. . . ." 2 Farrand 553. [p539]

[T]he Committee . . . had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so, and certainly the Convention had no belief . . . that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10. ^[n73]

Petitioners also argue that the post-Convention debates over the Constitution's ratification support their interpretation of § 5. For example, they emphasize Hamilton's reply to the anti-federalist charge that the new Constitution favored the wealthy and well born:

The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. 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 371 (Mentor ed.1961). (Emphasis in last sentence added.) [p540]

Madison had expressed similar views in an earlier essay, ^[n74] and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue.

Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, § 4, which authorizes Congress to regulate the times, places, and manner of electing members of Congress. They note that prominent anti-federalists had argued that this power could be used to "confer on the rich and well-born all honours." Brutus No. IV, N.Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents' contention, however, ignores Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution. ^[n75]

The debates at the state conventions also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized:

[T]he true principle of a republic is that [p541] the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.

2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot's Debates). ^[n76] In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, § 2, cl. 2, as it respects the qualifications of the elected:

It has ever been considered a great security to liberty that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state.

3 Elliot's Debates 8.

c. Post-Ratification.

As clear as these statements appear, respondents dismiss them as "general statements . . . directed to other issues." ^[n77] They suggest that far more relevant is Congress' own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded members-elect for reasons other than their [p542] failure to meet the Constitution's standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution.

Congress was first confronted with the issue in 1807, ^[n78] when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned:

The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications, and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules. . . .

17 Annals of Cong. 871 (1807). Lest there be any misunderstanding of the basis for the committee's recommendation, during the ensuing debate, the chairman explained the principles by which the committee was governed:

The Committee of Elections considered the qualifications of members to have been unalterably determined [p543] by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. . . . 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. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded.

Id. at 872. The chairman emphasized that the committee's narrow construction of the power of the House to judge qualifications was compelled by the "fundamental principle in a free government," id. at 873, that restrictions upon the people to choose their own representatives must be limited to those "absolutely necessary for the safety of the society." Id. at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id. at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States § 414 (1907) (hereinafter cited as Hinds).

There was no significant challenge to these principles for the next several decades. ^[n79] They came under heavy [p544] attack, however,

during the stress of civil war, [but initially] the House of Representatives declined to exercise the power [to exclude], even under circumstances of great provocation. ^[n80]

Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war's wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds § § 449-451. ^[n81]

This change was produced by the North's bitter emnity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power, and was given little doctrinal support.

Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U.Chi.L.Rev. 151, 157 (1967). ^[n82] From that time until [p545] the present, congressional practice has been erratic; ^[n83] and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the [p546] Constitution, there were frequently vigorous dissents. ^[n84] Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House's power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., § 12, pp. 7-8 (1967).

Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv.L.Rev. 673, 679 (1968). ^[n85] That an unconstitutional [p547] action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress' own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen's intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U.S. 52, 175 (1926). And what evidence we have of Congress' early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution's requirements for membership.

d. Conclusion

Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' [p548] own post-Civil War exclusion cases, against "vesting an improper & dangerous power in the Legislature." 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

For these reasons, we have concluded that Art. I, § 5, is, at most, a "textually demonstrable commitment" to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the "textual commitment" formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims.

2. Other Considerations.

Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a "potentially embarrassing confrontation between coordinate branches" of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a "lack of the respect due [a] coordinate [branch] of government," nor does it involve an "initial policy determination of a kind clearly for nonjudicial [p549] discretion." Baker v. Carr, 369 U.S. 186, at 217. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility. ^[n86] See United States v. Brown, 381 U.S. 437, 462 (1965); 369 U.S. 186, at 217. Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility. ^[n86] See United States v. Brown, 381 U.S. 437, 462 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613-614 (1952) (Frankfurter, J., concurring); 343 U.S. 579, 613-614 (1952) (Frankfurter, J., concurring); Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).

Nor are any of the other formulations of a political question "inextricable from the case at bar." Baker v. Carr, supra, at 217. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution -- a determination for which clearly there are "judicially . . . manageable standards." Finally, a judicial resolution of petitioners' claim will not result in "multifarious pronouncements by various departments on one question." For, as we noted in Baker v. Carr, supra, at 211, it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch 137 (1803). Thus, we conclude that petitioners' claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.

VII

CONCLUSION

To summarize, we have determined the following: (1) This case has not been mooted by Powell's seating in [p550] the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it may be sustained against their agents. (3) The 90th Congress' denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.

Further, analysis of the "textual commitment" under Art. I, § 5 (see Part VI, B(1)), has demonstrated that, in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Petitioners seek additional forms of equitable relief, including mandamus for the release of petitioner Powell's backpay. The propriety of such remedies, however, is more appropriately considered in the first instance by the courts below. Therefore, as to respondents McCormack, Albert, Ford, Celler, and Moore, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. As to respondents Jennings, Johnson, and Miller, the judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded to the United States District Court for the District of Columbia with instructions to enter a declaratory judgment and for further proceedings consistent with this opinion.

It is so ordered. [p551]

1. Powell requested that he be given (1) notice of the charges pending against him, including a bill of particulars as to any accuser; (2) the opportunity to confront any accuser, to attend all committee sessions where evidence was given, and the right to cross-examine all witnesses; (3) public hearings; (4) the right to have the Select Committee issue its process to summon witnesses for his defense; (5) and a transcript of every hearing. Hearings on H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1, 90th Cong., 1st Sess., 54 (1967).

The Select Committee noted that it had given Powell notice of the matters it would inquire into, that Powell had the right to attend all hearings (which would be public) with his counsel, and that the Committee would call witnesses upon Powell's written request and supply a transcript of the hearings. Id. at 59.

2. The complaint also attacked the House Resolution as a bill of attainder, an ex post facto law, and as cruel and unusual punishment. Further, petitioners charged that the hearing procedures adopted by the Select Committee violated the Due Process Clause of the Fifth Amendment.

3. The District Court refused to convene a three-judge court, and the Court of Appeals affirmed. Petitioners did not press this issue in their petition for writ of certiorari, apparently recognizing the validity of the Court of Appeals' ruling. See Stamler v. Willis, 393 U.S. 217 (196).

4. Petitioners also requested that a writ of mandamus issue ordering that the named officials perform the same acts.

5. The District Court entered its order April 7, 1967, and a notice of appeal was filed the same day. On April 11, 1967, Powell was reelected to the House of Representatives in a special election called to fill his seat. The formal certification of election was received by the House on May 1, 1967, but Powell did not again present himself to the House or ask to be given the oath of office.

6. Respondents' authority for this assertion is a footnote contained in Gojack v. United States, 384 U.S. 702, 70, n. 4. (1966): "Neither the House of Representatives nor its committees are continuing bodies."

7. The rule that this Court lacks jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies. See Sibron v. New York, 392 U.S. 40, 57 (1968); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States §§ 270-271 (R. Wolfson & P. Kurland ed.1951); Diamond, Federal Jurisdiction To Decide Moot Cases, 94 U.Pa.L.Rev. 125 (1946); Note, Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772 (1955).

8. Petitioners do not press their claim that respondent McCormack should be required to administer the oath to Powell, apparently conceding that the seating of Powell has rendered this specific claim moot. Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests. See Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 353 (1922). Respondents also argue that the seating of petitioner Powell has mooted the claims of Powell's constituents. Since this case will be remanded, that issue, as well as petitioners' other claims, can be disposed of by the court below.

9. Alejandrino's brief did not consider either the possibility that his request for injunctive relief had become moot or whether his salary claim required that the Court treat the propriety of his suspension. No brief was filed on behalf of respondents.

10. After discussing the insufficiency of Alejandrino's averments as to the officer responsible for his salary, the Court stated:

Were that set out, the remedy of the Senator would seem to be by mandamus to compel such official in the discharge of his ministerial duty to pay him the salary due. . . .

271 U.S. at 534. That the insufficiency of Alejandrino's averments was the reason for dismissal is further substantiated by a later passage:

As we are not able to derive from the petition sufficient information upon which properly to afford such a remedy [mandamus], we must treat the whole cause as moot, and act accordingly.

Id. at 535.

11. Paragraph 1b of petitioners' complaint avers that "Leake W. Johnson, as Sergeant-at-Arms of the House" is responsible for and refuses to pay Powell's salary, and prays for an injunction restraining the Sergeant at Arms from implementing the House resolution depriving Powell of his salary, as well as mandamus to order that the salary be paid.

12. Federal courts were first empowered to grant declaratory judgments in 1934, see 48 Stat. 955, 10 years after Alejandrino filed his complaint.

13. It was expressly stated in Alejandrino that a properly pleaded mandamus action could be brought, 271 U.S. at 535, impliedly holding that Alejandrino's salary claim had not been mooted by the expiration of his suspension.

14. Respondents do not supply any substantiation for their assertion that the term of the Georgia Legislature did not expire until December 31. Presumably, they base their statement upon Ga.Code Ann. §§ 2-1601, 2-1603 (Supp. 1968).

15. Respondents also suggest that Bond is not applicable because the parties in Bond had stipulated that Bond would be entitled to back salary if his constitutional challenges were accepted, while there is no stipulation in this case. However, if the claim in Bond was moot, a stipulation by the parties could not confer jurisdiction. See, e.g., California v. San Pablo & Tulare R. Co., 149 U.S. 308, 314 (1893).

16. Since the court below disposed of this case on grounds of justiciability, it did not pass upon whether Powell had brought an appropriate action to recover his salary. Where a court of appeals has misconceived the applicable law, and therefore failed to pass upon a question, our general practice has been to remand the case to that court for consideration of the remaining issues. See, e.g., Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 704 (1967); Bank of America National Trust & Savings Assn. v. Parnell, 352 U.S. 29, 34 (1956). We believe that such action is appropriate for resolution of whether Powell in this litigation is entitled to mandamus against the Sergeant at Arms for salary withheld pursuant to the House resolution.

17. Article I, § 6, provides: "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place."

18. Petitioners ask the Court to draw a distinction between declaratory relief sought against members of Congress and either an action for damages or a criminal prosecution, emphasizing that our four previous cases concerned "criminal or civil sanctions of a deterrent nature." Brief for Petitioners 171.

19. See 5 Debates on the Federal Constitution 406 (J. Elliot ed. 1876); 2 Records of the Federal Convention of 1787, p. 246 (M. Farrand rev. ed.1966) (hereinafter cited as Farrand).

20. The English Bill of Rights contained a provision substantially identical to Art. I, § 6:

That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.

1 W. & M., Sess. 2, c. 2. The English and American colonial history is traced in some detail in Cella, The Doctrine of Legislative Privilege of Freedom of Speech and Debate: Its Past, Present and Future as a Bar to Criminal Prosecutions in the Courts, 2 Suffolk U.L.Rev. 1, 3-16 (1968), and Yankwich, The Immunity of Congressional Speech -- Its Origin, Meaning and Scope, 99 U.Pa.L.Rev. 960, 961-966 (1951).

21. United States v. Johnson, 383 U.S. 169, 182-183 (1966).

22. 1 The Works of James Wilson 421 (R. McCloskey ed.1967).

23. In Dombrowski, $500,000 in damages was sought against a Senator and the chief counsel of a Senate Subcommittee chaired by that Senator. Record in No. 118, O.T. 1966, pp. 10-11. We affirmed the grant of summary judgment as to the Senator, but reversed as to subcommittee counsel.

24. The Court in Kilbourn quoted extensively from Stockdale v. Hansard, 9 Ad. & E. 1, 114, 112 Eng.Rep. 1112, 1156 (Q.B. 1839), to refute the assertion that House agents were immune because they were executing orders of the House:

[I]f the Speaker, by authority of the House, order an illegal Act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles' warrant for levying ship-money could justify his revenue officer.

Kilbourn eventually recovered $20,000 against Thompson. See Kilbourn v. Thompson, MacArth. & M. 401, 432 (Sup.Ct.D.C. 1883).

25. A Congressman is not, by virtue of the Speech or Debate Clause, absolved of the responsibility of filing a motion to dismiss, and the trial court must still determine the applicability of the clause to plaintiff's action. See Tenney v. Brandhove, 341 U.S. 367, 377 (1951).

26. Given our disposition of this issue, we need not decide whether, under the Speech or Debate Clause, petitioners would be entitled to maintain this action solely against members of Congress where no agents participated in the challenged action and no other remedy was available. Cf. Kilbourn v. Thompson, 103 U.S. 168, 204-205 (1881).

27. Powell was "excluded" from the 90th Congress, i.e., he was not administered the oath of office, and was prevented from taking his seat. If he had been allowed to take the oath and subsequently had been required to surrender his seat, the House's action would have constituted an "expulsion." Since we conclude that Powell was excluded from the 90th Congress, we express no view on what limitations may exist on Congress' power to expel or otherwise punish a member once he has been seated.

28. House Resolution No. 278, as amended and adopted, provided: "That said Adam Clayton Powell . . . be and the same hereby is excluded from membership in the 90th Congress. . . ." 113 Cong.Rec. 5020. (Emphasis added.)

29. Other Congresses have expressed an identical view. The Report of the Judiciary Committee concerning the proposed expulsion of William S. King and John G. Schumaker informed the House:

Your committee are of opinion that the House of Representatives has no authority to take jurisdiction of violations of law or offenses committed against a previous Congress. This is purely a legislative body, and entirely unsuited for the trial of crimes. The fifth section of the first article of the Constitution authorizes

each house to determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

This power is evidently given to enable each house to exercise its constitutional function of legislation unobstructed. It cannot vest in Congress a jurisdiction to try a member for an offense committed before his election; for such offense a member, like any other citizen, is amenable to the courts alone.

H.R.Rep. No. 815, 44th Cong., 1st Sess., (1876). See also 15 Cong.Rec. 4434 (1884) (ruling of the Speaker); H.R.Rep. No. 81, 42d Cong., 3d Sess., 8 (1873) (expulsion of James Brooks and Oakes Ames); H.R.Rep. No. 179, 35th Cong., 1st Sess., 4-5 (1858) (expulsion of Orsamus B. Matteson).

30. We express no view as to whether such a ruling would have been proper. A further distinction between expulsion and exclusion inheres in the fact that a member whose expulsion is contemplated may, as a matter of right, address the House and participate fully in debate, while a member-elect apparently does not have a similar right. In prior cases, the member whose expulsion was under debate has been allowed to make a long, and often impassioned, defense. See Cong.Globe, 42d Cong., 3d Sess., 1723 (1873) (expulsion of Oakes Ames); Cong.Globe, 41st Cong., 2d Sess., 1524-1525, 1544 (1870) (expulsion of B. F. Whittemore); Cong.Globe, 34th Cong., 3d Sess., 925-926 (1857) (expulsion of William A. Gilbert); Cong.Globe, 34th Cong., 3d Sess., 947-951 (1857) (expulsion of William W. Welch); 9 Annals of Cong. 2966 (1799) (expulsion of Matthew Lyon). On at least one occasion, the member has been allowed to cross-examine other members during the expulsion debate. 2 A. Hinds, Precedents of the House of Representatives § 1643 (1907).

31. A motion for the previous question is a debate-limiting device which, when carried, has the effect of terminating debate and of forcing a vote on the subject at hand. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., §§ 804-809 (1967); Cannon's Procedure in the House of Representatives, H.R.Doc. No. 610, 87th Cong., 2d Sess., 277-281 (1963).

32. Eckhardt, The Adam Clayton Powell Case, 45 Texas L.Rev. 1205, 1209 (1967). The views of Congressman Eckhardt were echoed during the exclusion proceedings. Congressman Cleveland stated that, although he voted in favor of and supported the Select Committee's recommendation, if the exclusion amendment received a favorable vote on the motion for the previous question, then he would support the amendment "on final passage." 113 Cong.Rec. 5031. Congressman Gubser was even more explicit:

I shall vote against the previous question on the Curtis amendment simply because I believe future and perfecting amendments should be allowed. But if the previous question is ordered, then I will be placed on the horns of an impossible dilemma.

Mr. Speaker, I want to expel Adam Clayton Powell by seating him first, but that will not be my choice when the Curtis amendment is before us. I will be forced to vote for exclusion, about which I have great constitutional doubts, or to vote for no punishment at all. Given this raw and isolated issue, the only alternative I can follow is to vote for the Curtis amendment. I shall do so, Mr. Speaker, with great reservation.

Ibid.

33. Although each judge of the panel wrote a separate opinion, all were clear in stating that the District Court possessed subject matter jurisdiction. Powell v. McCormack, 129 U.S.App.D.C. 354, 368, 384, 385, 395 F.2d 577, 591, 607, 608 (1968).

34. We have determined that the case is not moot. See Part II, supra.

35. Indeed, the thrust of respondents' argument on this jurisdictional issue is similar to their contentions that this case presents a nonjusticiable "political question." They urge that it would have been "unthinkable" to the Framers of the Constitution for courts to review the decision of a legislature to exclude a member. However, we have previously determined that a claim alleging that a legislature has abridged an individual's constitutional rights by refusing to seat an elected representative constitutes a "case or controversy" over which federal courts have jurisdiction. See Bond v. Floyd, 385 U.S. 116, 131 (1966). To the extent the expectations of the Framers are discernible and relevant to this case, they must therefore relate to the special problem of review by federal courts of actions of the federal legislature. This is, of course, a problem of separation of powers, and is to be considered in determining justiciability. See Baker v. Carr, 369 U.S. 186, 210 (1962).

36. Brief for Respondents 39.

37. Petitioners' complaint is predicated, inter alia, on several sections of Article I, Article III, and several amendments to the Constitution. Respondents do not challenge the substantiality of these claims.

38. Act of May 31, 1870, § 23, 16 Stat. 146. The statute is now 28 U.S.C. § 1344.

39. Cong.Globe,41st Cong., 2d Sess., 3872 (1870).

40. Respondents rely on Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929). Barry involved the power of the Senate to issue an arrest warrant to summon a witness to give testimony concerning a senatorial election. The Court ruled that issuance of the warrant was constitutional, relying on the power of the Senate under Art. I, § 5, to be the judge of the elections of its members. Respondents particularly rely on language the Court used in discussing the power conferred by Art. I, § 5. The Court noted that, under § 5, the Senate could "render a judgment which is beyond the authority of any other tribunal to review." Id. at 613.

Barry provides no support for respondents' argument that this case is not justiciable, however. First, in Barry, the Court reached the merits of the controversy, thus indicating that actions allegedly taken pursuant to Art. I, § 5, are not automatically immune from judicial review. Second, the quoted statement is dictum; and, later in the same opinion, the Court noted that the Senate may exercise its power subject "to the restraints imposed by or found in the implications of the Constitution." Id. at 614. Third, of course, the statement in Barry leaves open the particular question that must first be resolved in this case: the existence and scope of the textual commitment to the House to judge the qualifications of members.

41. In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from "any Office of honor, Trust or Profit under the United States"; Art. I, § 6, cl. 2, provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office", and § 3 of the 14th Amendment disqualifies any person

who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a "qualification" within the meaning of Art. I, § 5, than those set forth in Art. I, § 2. Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 111-115 (1968). We need not reach this question, however, since both sides agree that Powell was not ineligible under any of these provisions.

42. Consistent with this interpretation, federal courts might still be barred by the political question doctrine from reviewing the House's factual determination that a member did not meet one of the standing qualifications. This is an issue not presented in this case, and we express no view as to its resolution.

43. Indeed, the force of respondents' other arguments that this case presents a political question depends in great measure on the resolution of the textual commitment question. See Part VI, B(2), infra.

44. Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualifications of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. 1, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate.

45. Since the reign of Henry IV (1399-1413), no clergyman had sat in the House of Commons. 1 E. Porritt, The Unreformed House of Commons 125 (1963).

46. Because the British do not have a written constitution, standing incapacities or disqualifications for membership in Parliament are derived from "the custom and law of parliament." 1 W. Blackstone's Commentaries *162; see id. at *175. The groups thus disqualified as of 1770 included aliens; minors; judges who sat in the House of Lords; clergy who were represented in their own convocation; persons "attainted of treason or felony"; sheriffs, mayors, and bailiffs as representatives for their own jurisdictions, and certain taxing officials and officers of the Crown. Id. at *175-176. Not until the exclusion of John Wilkes, discussed infra, did Blackstone subscribe to the theory that, in addition, the Commons could declare ineligible an individual "in particular [unspecified] circumstances . . . for that parliament" if it deemed him unfit to serve on grounds not encompassed by the recognized standing incapacities. As we explain infra, this position was subsequently repudiated by the House in 1782. A Clerk of the House of Commons later referred to cases in which this theory was relied upon "as examples of an excess of . . . jurisdiction by the Commons; for one house of Parliament cannot create a disability unknown to the law." T. May's Parliamentary Practice 67 (13th ed. T. Webster 1924).

47. In 1619, the Virginia House of Burgesses challenged the eligibility of certain delegates on the ground that they did not hold their plantations under proper patents from the Virginia Company in England. See generally 7 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 3783-3810 (F. Thorpe ed.1909) (hereinafter cited as Thorpe). One of them, a Captain Warde, was admitted on condition that he obtain the necessary patent. The others, representatives from Martin's Brandon plantation, were excluded on the ground that the owner of the plantation had claimed that his patent exempted him from the colony's laws. See Journals of the House of Burgesses of Virginia:1619-1658/59, pp. 4-5 (1915); M. Clarke, Parliamentary Privilege in the American Colonies 133-134 (1943). The questions presented by these two cases, therefore, seem to be jurisdictional in nature -- that is, an attempt was made to gain representation for plantations over which the assembly may have had no power to act. Thus viewed, these cases are analogous to the exclusions for failure to comply with standing qualifications. They certainly are not precedents which support the view that a legislative body could exclude members for mere character defects or prior misconduct disapproved by the assembly. See generally Clarke, supra, at 132-204; J. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies:1689-1776, pp. 171-204 (1963).

48. For example, in 1585, the Commons expelled a Doctor Parry for unspecified misbehavior. A Compleat Journal of the Votes, Speeches and Debates of the House of Lords and House of Commons Throughout the Whole Reign of Queen Elizabeth, of Glorious Memory 352 (S. D'Ewes ed. 1708), and in 1628 Sir Edmund Sawyer was expelled because he had sought to induce a witness to suppress evidence against Sir Edmund in testimony before the House. 1 H.C.Jour. 917.

49. In expelling Sir Edmund Sawyer in 1628, the Commons declared "him to be unworthy ever to serve as a Member of this House." Ibid. Almost identical language was used in the expulsion of H. Benson in 1641. 2 id. at 301. But, by 1642, the formula had been changed to "disabled to serve any longer in this Parliament as a Member of this House. . . ." Id. at 703. (Emphasis added.) By the 18th century, it was apparently well established that an expulsion by the House of Commons could last no longer than the duration of the Parliament from which the member was expelled. See 1 W. Blackstone's Commentaries *176.

50. For example, in 1652, the Virginia House of Burgesses expelled two members for prior conduct disapproved by the assembly, Journals of the House of Burgesses, supra, at 85, and, in 1683, Rhode Island expelled a member "from acting in this present Assembly" for refusing to answer a court summons. 1 S. Arnold, History of the State of Rhode Island and Providence Plantations 289 (1859). See generally Clarke, supra, at 173-204.

51. In 1726, the Massachusetts House of Representatives excluded Gershom Woodle, who had been expelled on three previous occasions as "unworthy to be a Member." 7 Journals of the House of Representatives of Massachusetts 1726-1727, pp. 4-5, 15, 68-69 (1926). In 1758, North Carolina expelled Francis Brown for perjury. He was reelected twice in 1760 and excluded on both occasions; however, when he was elected at the 1761 general elections, he was allowed to take his seat. 5 Colonial Records of North Carolina 1057-1058 (1887); 6 id. at 375, 474, 662-663, 672-673 (1888). There may have been similar exclusions of two men elected in 1710 to the New Jersey Assembly. See Clarke, supra, at 197-198.

52. Significantly, the occasional assumption of this broader expulsion power did not go unchallenged, Clarke, supra, at 196-202, and it was not supported by the only parliamentary precedent, the Walpole case.

53. Pursuant to a general warrant, Wilkes was arrested, his home ransacked, and his private papers seized. In his later election campaigns, Wilkes denounced the use of general warrants, asserting that he was fighting for liberty itself. See 11 L. Gipson The British Empire Before the American Revolution 213-214 (1965).

54. The issue before the Commons was clear: could the Commons "put in any disqualification, that is not put in by the law of the land." 1 H. Cavendish's Debates 384 (J. Wright ed. 1841). The affirmative answer was somewhat less than resounding. After Wilkes' third reelection, the motion to seat his opponent carried 197 to 143.

55. The validity of the House's action against Wilkes rested to a large extent on the validity of the Walpole precedent. Taswell-Langmead, supra, at 585. Thus, the House of Commons resolution expunging, as subversive to the rights of the whole electorate, the action taken against Wilkes was also a tacit repudiation of the similar action taken against Walpole in 1712.

56. English law is apparently the same today. See T. May's Parliamentary Practice 105-108 (17th ed. B. Cocks 1964).

57. The Council of Censors was established by the 1776 Pennsylvania Constitution. It was an elected body that was specifically charged with the duty

to enquire whether the constitution has been preserved inviolate in every part, and whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the constitution.

Pa.Const. of 1776, § 47, 5 Thorpe 3091. See Pennsylvania Convention Proceedings:1776 and 1790, Introduction, p. IV (1825).

58. In discussing the case, respondents characterize the earlier action as an exclusion. The Council of Censors, however, stated that the general assembly had resolved that the member "is expelled from his seat." Pennsylvania Convention Proceedings, supra, at 89. The account of the dissenting committee members suggests that the term expulsion was properly used. They note that, in February, 1783, the assembly received a letter from the Comptroller General charging the assemblyman with fraud. Not until September 9, 1783, did the assembly vote to expel him. Presumably, he held his seat until that time. But, even if he had been excluded, arguably he was excluded for not meeting a standing incapacity, since the Pennsylvania Constitution of 1776 required assemblymen to be "most noted for wisdom and virtue." Pa.Const. of 1776, § 7, 5 Thorpe 3084. (Emphasis added.) In fact, the dissenting members of the Committee argued that the expelled member was ineligible under this very provision. Pennsylvania Convention Proceedings, supra, at 89.

Respondents cite one other exclusion during the period between the Declaration of Independence and the Constitutional Convention 11 years later. In 1780, the Virginia Assembly excluded John Breckenridge because he was a minor. Minority, of course, was a traditional standing incapacity, and Charles Warren therefore appears to have been correct in concluding that this exclusion was probably based upon an interpretation of the state constitutional requirement that members must be duly qualified according to law. Va.Const., 7 Thorpe 3816. See C. Warren, The Making of the Constitution 423, n. 1 (1928). Respondents, based upon their misinterpretation of the Pennsylvania case just discussed, criticize Charles Warren for concluding that there had been only one exclusion during this period. Our research, however, has disclosed no other cases.

59. Wilkes had established a reputation both in England and the Colonies as a champion of free elections, freedom from arbitrary arrest and seizure, and freedom of the press. See 11 Gipson, supra, at 191-222.

60. See R. Postgate, That Devil Wilkes 171-172, 173-174 (1929). During the House of Commons debates in 1781, a member remarked that expelling Wilkes had been "one of the great causes which had separated . . . [England] from America." 22 Parl.Hist.Eng. 100-101 (1781).

The writings of the pamphleteer "Junius" were widely reprinted in colonial newspapers, and lent considerable support to the revolutionary cause. See 3 Dictionary of American History 190 (1940). Letter XVIII of the "Letters of Junius" bitterly attacked the exclusion of Wilkes. This letter, addressed to Blackstone, asserted:

You cannot but know, sir, that what was Mr. Wilkes' case yesterday may be yours or mine tomorrow, and that, consequently, the common right of every subject of the realm is invaded by it. . . . If the expulsion of a member, not under any legal disability, of itself creates in him an incapacity to be elected, I see a ready way marked out by which the majority may, at any time, remove the honestest and ablest men who happen to be in opposition to them. To say that they will not make this extravagant use of their power would be a language unfit for a man so learned in the laws as you are. By your doctrine, sir, they have the power: and laws, you know, are intended to guard against what men may do, not to trust to what they will do.

1 Letters of Junius, Letter XVIII, p. 118 (1821).

61. See Warren, supra, at 399-426.

62. Dickinson also said that a built-in veneration for wealth would be inconsistent with the republican ideal that merit alone should determine who holds the public trust. 2 Farrand 123.

63. On August 10, a delegate moved to reconsider the citizenship qualification. The delegate proposed to substitute a three-year requirement for the seven-year requirement already agreed upon. The motion passed. Id. at 251. However, when this proposal was considered on August 13, it was rejected. Id. at 265-266.

64. Charles Pinckney proposed that the President, judges, and legislators of the United States be required to swear that they possessed a specified amount of unencumbered property. Benjamin Franklin expressed his strong opposition, observing that "[s]ome of the greatest rogues he was ever acquainted with were the richest rogues." Id. at 249. He voiced the fear that a property requirement would "discourage the common people from removing to this Country." Ibid. Thereafter, "the Motion of Mr. Pinkney [sic] was rejected by so general a no that the States were not called." Ibid. (Emphasis in original.)

65.

That the right of the electors to be represented by men of their own choice was so essential for the preservation of all their other rights that it ought to be considered as one of the most sacred parts of our constitution. . . . That the law of the land had regulated the qualifications of members to serve in parliament, and that the freeholders . . . had an indisputable right to return whom they thought proper, provided he was not disqualified by any of those known laws. . . . They are not occasional, but fixed: to rule and govern the question as it shall arise; not to start up on a sudden, and shift from side to side as the caprice of the day or the fluctuation of party shall direct.

16 Parl.Hist.Eng. 589-590 (1769).

66. Id. at 589.

67. Wilkes had made essentially the same argument in one of his early attempts to have the resolutions denying him a seat expunged:

This usurpation, if acquiesced under, would be attended with the most alarming consequences. If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self-existing. You may expel till you approve, and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realm will be lost.

18 Parl.Hist.Eng. 367 (1775).

68. Charles Warren concluded that "Madison's reference was undoubtedly to the famous election case of John Wilkes. . . ." Warren, supra, at 420, n. 1. It is also possible, however, that he was referring to the Parliamentary Test Act, 30 Car. 2, Stat. 2, c. 1 (1678), which had excluded Catholics as a group from serving in Parliament.

69. Charles Warren, upon whose interpretation of these events petitioners rely, concluded that the Convention's decision to reject Gouverneur Morris' proposal and the more limited proposal of the Committee of Detail was an implicit adoption of Madison's position that the qualifications of the elected "were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution." 2 Farrand 249-250. See Warren, supra, at 420-421. Certainly, Warren argued,

[s]uch action would seem to make it clear that the Convention did not intend to grant to a single branch of Congress . . . the right to establish any qualifications for its members, other than those qualifications established by the Constitution itself. . . . For certainly it did not intend that a single branch of Congress should possess a power which the Convention had expressly refused to vest in the whole Congress.

Id. at 421. See 1 J. Story, Commentaries on the Constitution of the United States § 625, at 445 (1873). Although Professor Chafee argued that congressional precedents do not support this construction, he nevertheless stated that forbidding any additions to the qualifications expressed in the Constitution was "the soundest policy." Z. Chafee, Free Speech in the United States 256 (1941).

70. See 10 W. Holdsworth, A History of English Law 540-542 (1938).

71. Holdsworth notes that, in the first edition of Blackstone's Commentaries, Blackstone enumerated various incapacities and then concluded that,

subject to these standing restrictions and disqualifications, every subject of the realm is eligible [for membership in the House of Commons] of common right.

1 W. Blackstone's Commentaries *176. Blackstone was called upon in Commons to defend Wilkes' exclusion, and the passage was quoted against him. Blackstone retaliated by writing a pamphlet and making two additions to later editions of his Commentaries in an effort to justify the decision of Parliament. Holdsworth, supra, at 540-541.

72. Appendix D to Brief for Respondents 52.

73. Warren, supra, at 422, n. 1. Charles Warren buttressed his conclusion by noting that the Massachusetts Constitution of 1780 "contained affirmative qualifications for Representatives and exactly similar negative qualifications for Senators." Ibid. Apparently, these provisions were not considered substantively different, for each house was empowered in identical language to "judge of the elections, returns and qualifications of their own members, as pointed out in the constitution." Mass.Const., pt. 2, c. I, § 2, Art. IV, 3 Thorpe 1897, and § 3, Art. X, 3 Thorpe 1899. (Emphasis added.) See Warren, supra, at 422-423, n. 1.

74. In No. 52 of The Federalist, Madison stated:

The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. [He then enumerated the qualifications for both representatives and Senators.] . . . Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession or religious faith.

The Federalist Papers 326 (Mentor ed.1961).

75. Respondents dismiss Madison's assertion that the

qualifications of the elected, . . . being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention

as nothing more than a refutation of the charge that the new national legislature would be free to establish additional "standing incapacities." However, this conclusion cannot be reconciled with the pre-Convention history on this question, the Convention debates themselves, and, in particular, the delegates' decision to require a two-thirds vote for expulsion.

76. At the same convention, Robert Livingston, one of the new Constitution's most ardent supporters and one of the State's most substantial landowners, endorsed this same fundamental principle:

The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.

2 Elliot's Debates 292-293.

77. Appendix D to Brief for Respondents 62.

78. In 1797, during the 5th Congress, 1st Session, the House considered expelling Matthew Lyon, a Republican, for sedition. The vote to expel, however, was 49 to 45, and broke down largely along partisan lines. Although Lyon's opponents, the Federalists, retained a majority in the 6th Congress, to which Lyon was reelected, and although there were political advantages to be gained from trying to prevent him from taking his seat, there was no effort made to exclude him. See Dionisopoulos, A Commentary on the Constitutional Issues in the Powell and Related Cases, 17 J.Pub.L. 103, 123-127 (1968).

79. Another Maryland representative was unsuccessfully challenged in 1808 on grounds almost identical to those asserted in the challenge of McCreery. See 18 Annals of Cong. 1848-1849 (1808). In 1844, the Senate declined to exclude John M. Niles, who was accused of being mentally incompetent, after a special committee reported him competent. Cong.Globe, 28th Cong., 1st Sess., 564-565, 602 (1844). In 1856, the House rejected an attempt to exclude Samuel Marshall for violating an Illinois law prohibiting state judges from running for other offices. 1 Hinds § 415. That same year, the Senate refused to exclude Lyman Trumbull for violating the same Illinois law. Ibid.

80. Between 1862 and 1867, both the House and Senate resisted several attempts to exclude members-elect who were accused of being disloyal to the Union during the Civil War. See id., §§ 448, 455, 458; Senate Election, Expulsion and Censure Cases, S.Doc. No. 71, 87th Cong., 2d Sess., 21 (1962) (hereinafter cited as Senate Cases).

81. That same year, the Senate also excluded a supporter of the Confederacy. Senate Cases 40. The House excluded two others shortly thereafter, one for the same offense, and another for selling appointments to the Military and Naval Academies. See 1 Hinds §§ 459, 464; 2 Hinds § 1273.

82. This departure from previous House construction of its power to exclude was emphasized by Congressman William P. Fessenden:

[T]he power which we have under the Constitution to judge of the qualifications of members of the body is not a mere arbitrary power, to be exerted according to the will of the individuals who may vote upon the subject. It ought to be a power subject to certain rules and founded upon certain principles. So it was up to a very late period, until the rebellion. The rule simply was, if a man came here and presented proper credentials from his State to allow him to take the ordinary oath, which we all took, to support the Constitution, and be admitted, and if there was any objection to him to try that question afterward.

Cong.Globe, 40th Cong., 2d Sess., 685 (1868).

83. For example, in 1870, the House refused to exclude a Texas Congressman accused of a variety of criminal acts, 1 Hinds § 465; but in 1882 and again in 1900, the House excluded a member-elect for practicing polygamy. 1 Hinds §§ 473, 477-480. Thereafter, it apparently did not consider excluding anyone until shortly after World War I, when it twice excluded Victor L. Berger, an avowed Socialist, for giving aid and comfort to the enemy. Significantly, the House committee investigating Berger concluded that he was ineligible under the express provision of § 3 of the Fourteenth Amendment. 6 C. Cannon, Precedents of the House of Representatives of the United States §§ 56-59 (1935) (hereinafter cited as Cannon). Berger, the last person to be excluded from the House prior to Powell, was later reelected and finally admitted after his criminal conviction was reversed. 65 Cong.Rec. 7 (1923).

The House next considered the problem in 1925, when it contemplated excluding John W. Langley for his alleged misconduct. Langley resigned after losing a criminal appeal, and the House therefore never voted upon the question. 6 Cannon § 238. The most recent exclusion attempt prior to Powell's occurred in 1933, when the House refused to exclude a Representative from Minnesota who had been convicted of sending defamatory matter through the mail. See 77 Cong.Rec. 73-74, 131-139 (1933).

The Senate has not excluded anyone since 1929; in that year, it refused to seat a member-elect because of improper campaign expenditures. 6 Cannon § 180. In 1947, a concerted effort was made to exclude Senator Theodore G. Bilbo of Mississippi for allegedly accepting gifts from war contractors and illegally intimidating Negroes in Democratic primaries. See 93 Cong.Rec. 3-28 (1947). He died, however, before a decision was reached.

84. During the debates over H.R.Res. No. 278, Congressman Celler, chairman of both the Select Committee and the Judiciary Committee, forcefully insisted that the Constitution "unalterably fixes and defines" the qualifications for membership in the House, and that any other construction of Art. I, § 5, would be "improper and dangerous." 113 Cong.Rec. 4998. See H.R.Rep. No. 484, 43d Cong., 1st Sess., 11-15 (1874) (views of minority); H.R.Rep. No. 85, 56th Cong., 1st Sess., 53-77 (1900) (views of minority). In the latter report, the dissenters argued:

A small partisan majority might render the desire to arbitrarily exclude, by a majority vote, in order to more securely intrench itself in power, irresistible. Hence, its exercise is controlled by legal rules. In case of expulsion, when the requisite two-thirds can be had, the motive for the exercise of arbitrary power no longer exists, as a two-thirds partisan majority is sufficient for every purpose. . . . The power of exclusion is a matter of law, to be exercised by a majority vote in accordance with legal principles, and exists only where a member-elect lacks some of the qualifications required by the Constitution.

Id. at 76-77.

85.

Determining the basis for a congressional action is itself difficult; since a congressional action, unlike a reported judicial decision, contains no statement of the reasons for the disposition, one must fall back on the debates and the committee reports. If more than one issue is raised in the debates, one can never be sure on what basis the action was predicated. Unlike a court, which is presumed to be disinterested, in an exclusion case, the concerned house is, in effect, a party to the controversy that it must adjudicate. Consequently, some members may be inclined to vote for exclusion though they strongly doubt its constitutionality.

81 Harv.L.Rev. at 679.

86. In fact, the Court has noted that it is an "inadmissible suggestion" that action might be taken in disregard of a judicial determination. McPherson v. Blacker, 146 U.S. 1, 24 (1892).

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