A Speaker Must Be a Member of the House
Newt Gingrich or Mitt Romney for Speaker? Balderdash!
Newt Gingrich or Mitt Romney for Speaker? Balderdash!
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Since 1377 when the Rolls of Parliament noted that the House of Commons had a “Speaker,” it has been unbroken tradition, whether in England or the United States, that the Speaker has been a member of the body that has chosen him.
In England, the King used to be able to consent to the nomination of Speaker, and in Tudor times, when the crown was seeking to become like France, the King used his threat of veto to influence who would be the Speaker. But the Speaker was still drawn from the House.
By the end of the Eighteenth Century, Parliament had wrested complete control of the choice of Speaker to itself. In fact, the last time a King attempted to veto the choice of Speaker for political reasons was over a century earlier in the 1600s. But just when Parliament had won the battle, the role of the Speaker of the House of Commons changed. Previously, it had been a post of significant power. He could determine what bills would come to the floor for a vote, and he was often the person who represented Parliament’s position to the King. But after the eighteenth century, the Speaker’s function devolved into something like an umpire over the debates. In contrast, the American Speaker of the House has, from the very beginning, been an office of great power and influence and has remained so.
In the American states after independence, the Speaker was always a member of the assembly. The Massachusetts constitution of 1780, written by John Adams, was highly influential in the drafting of the federal Constitution in 1787. The Massachusetts constitution declared, “The House of Representatives…shall choose their own speaker.”
The Articles of Confederation declared, “The United States in Congress assembled shall have authority… to appoint one of their number to preside,” codifying the unbroken practice. In the Constitution, however, there is only the more pithy “The House of Representatives shall chuse their Speaker,” omitting “one of their number” from the Articles of Confederation, or “choose their own speaker” from the Massachusetts constitution.
From this tiny textual lacuna, some would conclude that the Speaker need not be a member of the House. But the text of the Constitution was intentionally made more concise from the Articles of Confederation. That was the genius of Gouverneur Morris, who, as chair of the Committee on Style at the Constitutional Convention, shaped such an elegant document. Article IV noting the Privileges and Immunities of citizens was a similar condensation of Article IV of the Articles of Confederation.
Genuine originalism looks to the contemporary understanding of the text of the Constitution, including what was left out. In the carefully crafted separation of powers, the framers made sure that each branch of government, and each part of the national legislature, would be drawn from a different constituency. The House of Representatives represented the people as a whole. It would have been unthinkable for the House to have broken centuries of practice and appoint a person who had not been elected by the people to what had immediately become a powerful position.
Newt Gingrich and Mitt Romney can be in the House of Representatives—but in the galleries, not the Speaker’s chair.
United States Court of Appeals, Fourth Circuit
James Harvie Wilkinson III is an Article III federal judge on the United States Court of Appeals for the Fourth Circuit. He joined the Court in 1984 after being nominated by President Ronald Reagan.
Born in New York City, New York, Wilkinson graduated from Yale University with his Bachelor's degree in 1967. Wilkinson served in the United States Army from 1968 to 1969 and received his Juris Doctor degree from the University of Virginia School of Law in 1972.
On the recommendation of Virginia U.S. Senator John Warner, Wilkinson was nominated to the United States Court of Appeals for the Fourth Circuit by President Ronald Reagan on January 30, 1984 to a seat vacated by John Butzner, Jr.,. Wilkinson was confirmed by the Senate on August 9, 1984 on a Senate vote and received commission on August 13, 1984. Wilkinson served as the Chief Judge of the Court from 1996 to 2003.
Garwood Visiting Professor and Visiting Fellow, James Madison Pr, Cleveland-Marshall College of Law
David F. Forte is Professor of Law at Cleveland State University, where he was the inaugural holder of the Charles R. Emrick, Jr.- Calfee Halter & Griswold Endowed Chair. This fall, Professor Forte will be the Garwood Visiting Professor at Princeton University in the Department of Politics, and Visiting Fellow at the James Madison Program in American Ideals and Institutions. He holds degrees from Harvard College, Manchester University, England, the University of Toronto and Columbia University.
During the Reagan administration, Professor Forte served as chief counsel to the United States delegation to the United Nations and alternate delegate to the Security Council. He has authored a number of briefs before the United States Supreme Court, and has frequently testified before the United States Congress and consulted with the Department of State on human rights and international affairs issues. His advice was specifically sought on the approval of the Genocide Convention, on world-wide religious persecution, and Islamic extremism. He has appeared and spoken frequently on radio and television, both nationally and internationally. In 2002, the Department of State sponsored a speaking tour for Professor Forte in Amman, Jordan, and he was also a featured speaker to the Meeting of Peoples in Rimini, Italy, a meeting which gathers over 500,000 people from all over Europe. He has also been called to testify before the state legislatures of Ohio, Kansas, and Idaho as well as the New York City Council. He has assisted in drafting a number of pieces of legislation for the Ohio General Assembly dealing with abortion, international trade, and federalism. He has sat as acting judge on the municipal court of Lakewood Ohio and was chairman of Professional Ethics Committee of the Cleveland Bar Association. He has received a number of awards for his public service, including the Cleveland Bar Association’s President’s Award, the Cleveland State University Award for Distinguished Service, the Cleveland State University Distinguished Teaching Award, and the Cleveland-Marshall College of Law Alumni Award for Faculty Excellence. He served as Consultor to the Pontifical Council for the Family under Pope St. John Paul II and Pope Benedict XVI. In 2003, Dr. Forte was a Distinguished Fulbright Chair at the University of Trento and returned there in 2004 as a Visiting Professor. For the academic year, 2008-2009, Professor Forte was Senior Visiting Scholar at the Center for the Study of Religion and the Constitution in at the Witherspoon Institute in Princeton, New Jersey. He was the Robert E. Henderson Constitution Day Lecturer at the Ashbrook Center at Ashland University, and he has given over 300 invited addresses and papers at more than 100 academic institutions. His work has been cited by the U.S. Supreme Court.
Professor Forte was a Bradley Scholar at the Heritage Foundation, and Visiting Scholar at the Liberty Fund. He has been President of the Ohio Association of Scholars, was on the Board of Directors of the Philadelphia Society, and is also adjunct Scholar at the Ashbrook Center. He has been appointed to the Ohio State Advisory Committee to the U.S. Commission on Civil Rights. He has also been a Civil War re-enactor and a Merit Badge Counselor for the Boy Scouts.
He writes and speaks nationally on topics such as constitutional law, religious liberty, Islamic law, the rights of families, and international affairs. He served as book review editor for the American Journal of Jurisprudence and has edited a volume entitled, Natural Law and Contemporary Public Policy, published by Georgetown University Press. His book, Islamic Law Studies: Classical and Contemporary Applications, has been published by Austin & Winfield. He is Senior Editor of The Heritage Guide to the Constitution (2006), 2d edition (2014), published by Regnery & Co, a clause by clause analysis of the Constitution of the United States.
His teaching competencies include Constitutional Law, the First Amendment, Islamic Law, Jurisprudence, Natural Law, International Law, International Human Rights, the Presidency, and Constitutional History.