Article 1, Section 5, Clauses 1--4

Document 21

Joseph Story, Commentaries on the Constitution 2:§§ 831--36, 838--46

§ 831. It is obvious, that a power must be lodged somewhere to judge of the elections, returns, and qualifications of the members of each house composing the legislature; for otherwise there could be no certainty, as to who were legitimately chosen members, and any intruder, or usurper, might claim a seat, and thus trample upon the rights, and privileges, and liberties of the people. Indeed, elections would become, under such circumstances, a mere mockery; and legislation the exercise of sovereignty by any self-constituted body. The only possible question on such a subject is, as to the body, in which such a power shall be lodged. If lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger. No other body, but itself, can have the same motives to preserve and perpetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own character, and to preserve the rights, and sustain the free choice of its constituents. Accordingly, the power has always been lodged in the legislative body by the uniform practice of England and America.

§ 832. The propriety of establishing a rule for a quorum for the despatch of business is equally clear; since otherwise the concerns of the nation might be decided by a very small number of the members of each body. In England, where the house of commons consists of nearly six hundred members, the number of forty-five constitutes a quorum to do business. In some of the state constitutions a particular number of the members constitutes a quorum to do business; in others, a majority is required. The constitution of the United States has wisely adopted the latter course; and thus, by requiring a majority for a quorum, has secured the public from any hazard of passing laws by surprise, or against the deliberate opinion of a majority of the representative body.

§ 833. It may seem strange, but it is only one of many proofs of the extreme jealousy, with which every provision in the constitution of the United States was watched and scanned, that though the ordinary quorum in the state legislatures is sometimes less, and rarely more, than a majority; yet it was said, that in the congress of the United States more than a majority ought to have been required; and in particular cases, if not in all, more than a majority of a quorum should be necessary for a decision. Traces of this opinion, though very obscure, may perhaps be found in the convention itself. To require such an extraordinary quorum for the decision of questions would, in effect, be to give the rule to the minority, instead of the majority; and thus to subvert the fundamental principle of a republican government. If such a course were generally allowed, it might be extremely prejudicial to the public interests in cases, which required new laws to be passed, or old ones modified, to preserve the general, in contradistinction to local, or special interests. If it were even confined to particular cases, the privilege might enable an interested minority to screen themselves from equitable sacrifices to the general weal; or, in particular cases, to extort undue indulgences. It would also have a tendency to foster and facilitate the baneful practice of secession, a practice, which has shown itself even in states, where a majority only is required, which is subversive of all the principles of order and regular government, and which leads directly to public convulsions, and the ruin of republican institutions.

§ 834. But, as a danger of an opposite sort required equally to be guarded against, a smaller number is authorized to adjourn from day to day, thus to prevent a legal dissolution of the body, and also to compel the attendance of absent members. Thus, the interests of the nation, and the despatch of business, are not subject to the caprice, or perversity, or negligence of the minority. It was a defect in the articles of confederation, sometimes productive of great public mischief, that no vote, except for an adjournment, could be determined, unless by the votes of a majority of the states; and no power of compelling the attendance of the requisite number existed.

§ 835. . . . No person can doubt the propriety of the provision authorizing each house to determine the rules of its own proceedings. If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority. But the power to make rules would be nugatory, unless it was coupled with a power to punish for disorderly behaviour, or disobedience to those rules. And as a member might be so lost to all sense of dignity and duty, as to disgrace the house by the grossness of his conduct, or interrupt its deliberations by perpetual violence or clamour, the power to expel for very aggravated misconduct was also indispensable, not as a common, but as an ultimate redress for the grievance. But such a power, so summary, and at the same time so subversive of the rights of the people, it was foreseen, might be exerted for mere purposes of faction or party, to remove a patriot, or to aid a corrupt measure; and it has therefore been wisely guarded by the restriction, that there shall be a concurrence of two thirds of the members, to justify an expulsion. This clause, requiring a concurrence of two thirds, was not in the original draft of the constitution, but it was inserted by a vote of ten states, [Volume 2, Page 315] one being divided. A like general authority to expel, exists in the British house of commons; and in the legislative bodies of many of the states composing the Union.

§ 836. What must be the disorderly behaviour, which the house may punish, and what punishment, other than expulsion, may be inflicted, do not appear to have been settled by any authoritative adjudication of either house of congress. A learned commentator supposes, that members can only be punished for misbehaviour committed during the session of congress, either within, or without the walls of the house; though he is also of opinion, that expulsion may be inflicted for criminal conduct committed in any place. He does not say, whether it must be committed during the session of congress or otherwise. In July, 1797, William Blount was expelled from the senate, for "a high misdemeanour, entirely inconsistent with his public trust and duty as a senator." The offence charged against him was an attempt to seduce an American agent among the Indians from his duty, and to alienate the affections and confidence of the Indians from the public authorities of the United States, and a negotiation for services in behalf of the British government among the Indians. It was not a statuteable offence; nor was it committed in his official character; nor was it committed during the session of congress; nor at the seat of government. Yet by an almost unanimous vote he was expelled from that body; and he was afterwards impeached (as has been already stated) for this, among other charges. It seems, therefore, to be settled by the senate upon full deliberation, that expulsion may be for any misdemeanour, which, though not punishable by any statute, is inconsistent with the trust and duty of a senator. In the case of John Smith (a senator) in April, 1808, the charge against him was for participation in the supposed treasonable conspiracy of Colonel Burr. But the motion to expel him was lost by a want of the constitutional majority of two thirds of the members of the senate. The precise ground of the failure of the motion does not appear; but it may be gathered from the arguments of his counsel, that it did not turn upon any doubt, that the power of the senate extended to cases of misdemeanour, not done in the presence or view of the body; but most probably it was decided upon some doubt as to the facts. It may be thought difficult to draw a clear line of distinction between the right to inflict the punishment of expulsion, and any other punishment upon a member, founded on the time, place, or nature of the offence. The power to expel a member is not in the British house of commons confined to offences committed by the party as a member, or during the session of parliament; but it extends to all cases, where the offence is such, as, in the judgment of the house, unfits him for parliamentary duties.

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§ 838. This clause [1.5.3] in its actual form did not pass in the convention without some struggle and some propositions of amendment. The first part finally passed by an unanimous vote; the exception was carried by a close vote of six states against four, one being divided; and the remaining clause, after an ineffectual effort to strike out "one fifth," and insert in its stead, "if every member present," was finally adopted by an unanimous vote. The object of the whole clause is to ensure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism, and integrity, and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture, but by positive facts. Mr. Justice Blackstone seems, indeed, to suppose, that votes openly and publicly given are more liable to intrigue and combination, than those given privately and by ballot. "This latter method," says he, "may be serviceable to prevent intrigues and unconstitutional combinations. But it is impossible to be practised with us, at least in the house of commons, where every member's conduct is subject to the future censure of his constituents, and therefore should be openly submitted to their inspection."

§ 839. The history of public assemblies, or of private votes, does not seem to confirm the former suggestion of the learned author. Intrigue and combination are more commonly found connected with secret sessions, than with public debates, with the workings of the ballot box, than with the manliness of viva voce votes. At least, it may be questioned, if the vote by ballot has, in the opinion of a majority of the American people, obtained any decisive preference over viva voce voting, even at elections. The practice in New England is one way, and at the South another way. And as to the votes of representatives and senators in congress, no man has yet been bold enough to vindicate a secret or ballot vote, as either more safe, or more wise, more promotive of independence in the members, or more beneficial to their constituents. So long as known and open responsibility is valuable as a check, or an incentive among the representatives of a free people, so long a journal of their proceedings, and their votes, published in the face of the world, will continue to enjoy public favour, and be demanded by public opinion. When the people become indifferent to the acts of their representatives, they will have ceased to take much interest in the preservation of their liberties. When the journals shall excite no public interest, it will not be matter of surprise, if the constitution itself is silently forgotten, or deliberately violated.

§ 840. The restriction of calls of the yeas and nays to one fifth is founded upon the necessity of preventing too frequent a recurrence to this mode of ascertaining the votes, at the mere caprice of an individual. A call consumes a great deal of time, and often embarrasses the just progress of beneficial measures. It is said to have been often used to excess in the congress under the confederation; and even under the present constitution it is notoriously used, as an occasional annoyance, by a dissatisfied minority, to retard the passage of measures, which are sanctioned by the approbation of a strong majority. The check, therefore, is not merely theoretical; and experience shows, that it has been resorted to, at once to admonish, and to control members, in this abuse of the public patience and the public indulgence.

§ 841. . . . It is observable, that the duration of each session of congress, (subject to the constitutional termination of their official agency,) depends solely upon their own will and pleasure, with the single exception, as will be presently seen, of cases, in which the two houses disagree in respect to the time of adjournment. In no other case is the president allowed to interfere with the time and extent of their deliberations. And thus their independence is effectually guarded against any encroachment on the part of the executive. Very different is the situation of parliament under the British constitution; for the king may, at any time, put an end to a session by a prorogation of parliament, or terminate the existence of parliament by a dissolution, and a call of a new parliament. It is true, that each house has authority to adjourn itself separately; and this is commonly done from day to day, and sometimes for a week or a month together, as at Christmas and Easter, or upon other particular occasions. But the adjournment of one house is not the adjournment of the other. And it is usual, when the king signifies his pleasure, that both, or either of the houses should adjourn themselves to a certain day, to obey the king's pleasure, and adjourn accordingly; for otherwise a prorogation would certainly follow.

§ 842. Under the colonial governments, the undue exercise of the same power by the royal governors constituted a great public grievance, and was one of the numerous cases of misrule, upon which the declaration of independence strenuously relied. It was there solemnly charged against the king, that he had called together legislative [colonial] bodies at places, unusual, uncomfortable, and distant from the repository of the public records; that he had dissolved representative bodies, for opposing his invasions of the rights of the people; and after such dissolutions, he had refused to reassemble them for a long period of time. It was natural, therefore, that the people of the United States should entertain a strong jealousy on this subject, and should interpose a constitutional barrier against any such abuse by the prerogative of the executive. The state constitutions generally contain some provision on the same subject, as a security to the independence of the legislature.

§ 842. [sic] These are all the powers and privileges, which are expressly vested in each house of congress by the constitution. What further powers and privileges they incidentally possess has been a question much discussed, and may hereafter be open, as new cases arise, to still further discussion. It is remarkable, that no power is conferred to punish for any contempts committed against either house; and yet it is obvious, that, unless such a power, to some extent, exists by implication, it is utterly impossible for either house to perform its constitutional functions. For instance, how is either house to conduct its own deliberations, if it may not keep out, or expel intruders? If it may not require and enforce upon strangers silence and decorum in its presence? If it may not enable its own members to have free ingress, egress, and regress to its own hall of legislation? And if the power exists, by implication, to require the duty, it is wholly nugatory, unless it draws after it the incidental authority to compel obedience, and to punish violations of it. It has been suggested by a learned commentator, quoting the language of Lord Bacon, that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated; and hence he deduces the conclusion, that, as the power to punish contempts is not among those enumerated, as belonging to either house, it does not exist. Now, however wise or correct the maxim of Lord Bacon is in a general sense, as a means of interpretation, it is not the sole rule. It is no more true, than another maxim of a directly opposite character, that where the end is required, the means are, by implication, given. Congress are required to exercise the powers of legislation and deliberation. The safety of the rights of the nation require this; and yet, because it is not expressly said, that congress shall possess the appropriate means to accomplish this end, the means are denied, and the end may be defeated. Does not this show, that rules of interpretation, however correct in a general sense, must admit of many qualifications and modifications in their application to the actual business of human life and human laws? Men do not frame constitutions of government to suspend its vital interests, and powers, and duties, upon metaphysical doubts, or ingenious refinements. Such instruments must be construed reasonably, and fairly, according to the scope of their purposes, and to give them effect and operation, not to cripple and destroy them. They must be construed according to the common sense applied to instruments of a like nature; and in furtherance of the fundamental objects proposed to be attained; and according to the known practice and incidents of bodies of a like nature.

§ 843. We may resort to the common law to aid us in interpreting such instruments, and their powers; for that law is the common rule, by which all our legislation is interpreted. It is known, and acted upon, and revered by the people. It furnishes principles equally for civil and criminal justice, for public privileges, and private rights. Now, by the common law, the power to punish contempts of this nature belongs incidentally to courts of justice, and to each house of parliament. No man ever doubted, or denied its existence, as to our colonial assemblies in general, whatever may have been thought, as to particular exercises of it. Nor is this power to be viewed in an unfavourable light. It is a privilege, not of the members of either house; but, like all other privileges of congress, mainly intended as a privilege of the people, and for their benefit. Mr. Justice Blackstone has, with great force, said, that "laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice to suppress such contempts, &c., results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal." . . .

§ 844. This subject has of late undergone a great deal of discussion both in England and America; and has finally received the adjudication of the highest judicial tribunals in each country. In each country upon the fullest consideration the result was the same, viz. that the power did exist, and that the legislative body was the proper and exclusive [Volume 2, Page 317] forum to decide, when the contempt existed, and when there was a breach of its privileges; and, that the power to punish followed, as a necessary incident to the power to take cognizance of the offence. The judgment of the Supreme Court of the United States, in the case alluded to, contains so elaborate and exact a consideration of the whole argument on each side, that it will be far more satisfactory to give it in a note, as it stands in the printed opinion, than to hazard, by any abridgment, impairing the just force of the reasoning.

§ 845. This is not the only case, in which the house of representatives has exerted the power to arrest, and punish for a contempt committed within the walls of the house. The power was exerted in the case of Robert Randall, in December, 1795, for an attempt to corrupt a member: in 1796, in the case of ------, a challenge given to a member, which was held a breach of privilege; and in May, 1832, in the case of Samuel Houston, for an assault upon a member for words spoken in his place, and afterwards printed, reflecting on the character of Houston. In the former case, the house punished the offence by imprisonment; in the latter, by a reprimand by the speaker. So in 1800, in the case of William Duane, for a printed libel against the senate, the party was held guilty of a contempt, and punished by imprisonment. Nor is there any thing peculiar in the claim under the constitution of the United States. The same power has been claimed, and exercised repeatedly, under the state governments, independent of any special constitutional provision, upon the broad ground stated, by Mr. Chief Justice Shippen, that the members of the legislature are legally, and inherently possessed of all such privileges, as are necessary to enable them, with freedom and safety, to execute the great trust reposed in them by the body of the people, who elected them.

§ 846. The power to punish for contempts, thus asserted both in England and America, is confined to punishment during the session of the legislative body, and cannot be extended beyond it. It seems, that the power of congress to punish cannot, in its utmost extent, proceed beyond imprisonment; and then it terminates with the adjournment, or dissolution of that body. Whether a fine may not be imposed, has been recently made a question in a case of contempt before the house of lords; upon which occasion Lord Chancellor Brougham expressed himself in the negative, and the other law lords, Eldon and Tenterden, in the affirmative; but the point was not then solemnly decided. It had, however, been previously affirmed by the house of lords in the case of Rex v. Flower, (8 T. R. 314,) in case of a libel upon one of the Bishops. Lord Kenyon then said, that in ascertaining and punishing for a contempt of its privileges, the house acted in a judicial capacity.

The Founders' Constitution
Volume 2, Article 1, Section 5, Clauses 1--4, Document 21
http://press-pubs.uchicago.edu/founders/documents/a1_5s21.html
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.