Article 1, Section 6, Clause 2
[Volume 2, Page 372]
Joseph Story, Commentaries on the Constitution 2:§§ 864--691833
§ 864. . . . This clause does not appear to have met with any opposition in the convention, as to the propriety of some provision on the subject, the principal question being, as to the best mode of expressing the disqualifications. It has been deemed by one commentator an admirable provision against venality, though not perhaps sufficiently guarded to prevent evasion. And it has been elaborately vindicated by another with uncommon earnestness. The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness. The actual provision, however, does not go to the extent of the principle; for his appointment is restricted only "during the time, for which he was elected;" thus leaving in full force every influence upon his mind, if the period of his election is short, or the duration of it is approaching its natural termination. It has sometimes been matter of regret, that the disqualification had not been made co-extensive with the supposed mischief; and thus have for ever excluded members from the possession of offices created, or rendered more lucrative by themselves. Perhaps there is quite as much wisdom in leaving the provision, where it now is.
§ 865. It is not easy, by any constitutional or legislative enactments, to shut out all, or even many of the avenues of undue or corrupt influence upon the human mind. The great securities for society--those, on which it must for ever rest in a free government--are responsibility to the people through elections, and personal character, and purity of principle. Where these are wanting, there never can be any solid confidence, or any deep sense of duty. Where these exist, they become a sufficient guaranty against all sinister influences, as well as all gross offences. It has been remarked with equal profoundness and sagacity, that, as there is a degree of depravity in mankind, which requires a certain degree of circumspection and distrust; so there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher form, than any other. It might well be deemed harsh to disqualify an individual from any office, clearly required by the exigencies of the country, simply because he had done his duty. And, on the other hand, the disqualification might operate upon many persons, who might find their way into the national councils, as a strong inducement to postpone the creation of necessary offices, lest they should become victims of their high discharge of duty. The chances of receiving an appointment to a new office are not so many, or so enticing, as to bewilder many minds; and if they are, the aberrations from duty are so easily traced, that they rarely, or never escape the public reproaches. And if influence is to be exerted by the executive for improper purposes, it will be quite as easy, and in its operation less seen, and less suspected, to give the stipulated patronage in another form, either of office, or of profitable employment, already existing. And even a general disqualification might be evaded by suffering the like patronage silently to fall into the hands of a confidential friend, or a favourite child or relative. A dishonourable traffic in votes, if it should ever become the engine of party or of power in our country, would never be restrained by the slight network of any constitutional provisions of this sort. It would seek, and it would find its due rewards in the general patronage of the government, or in the possession of the offices conferred by the people, which would bring emolument, as well as influence, and secure power by gratifying favourites. The history of our state governments (to go no farther) will scarcely be thought by any ingenuous mind to afford any proofs, that the absence of such a disqualification has rendered state legislation less pure, or less intelligent; or, that the existence of such a disqualification would have retarded one rash measure, or introduced one salutary scruple into the elements of popular or party strife. History, which teaches us by examples, establishes the truth beyond all reasonable question, that genuine patriotism is too lofty in its honour, and too enlightened in its object, to need such checks; and that weakness and vice, the turbulence of faction, and the meanness of avarice, are easily bought, notwithstanding all the efforts to fetter, or ensnare them.
§ 866. The other part of the clause, which disqualifies persons holding any office under the United States from being members of either house during their continuance in office, has been still more universally applauded; and has been vindicated upon the highest grounds of public policy. It is doubtless founded in a deference to state jealousy, and a sincere desire to obviate the fears, real or imaginary, that the general government would obtain an undue preference over the state governments. It has also the strong recommendation, that it prevents any undue influence from office, either upon the party himself, or those, with whom he is associated in legislative deliberations. [Volume 2, Page 373] The universal exclusion of all persons holding office is (it must be admitted) attended with some inconveniences. The heads of the departments are, in fact, thus precluded from proposing, or vindicating their own measures in the face of the nation in the course of debate; and are compelled to submit them to other men, who are either imperfectly acquainted with the measures, or are indifferent to their success or failure. Thus, that open and public responsibility for measures, which properly belongs to the executive in all governments, and especially in a republican government, as its greatest security and strength, is completely done away. The executive is compelled to resort to secret and unseen influence, to private interviews, and private arrangements, to accomplish its own appropriate purposes; instead of proposing and sustaining its own duties and measures by a bold and manly appeal to the nation in the face of its representatives. One consequence of this state of things is, that there never can be traced home to the executive any responsibility for the measures, which are planned, and carried at its suggestion. Another consequence will be, (if it has not yet been,) that measures will be adopted, or defeated by private intrigues, political combinations, irresponsible recommendations, and all the blandishments of office, and all the deadening weight of silent patronage. The executive will never be compelled to avow, or to support any opinions. His ministers may conceal, or evade any expression of their opinions. He will seem to follow, when in fact he directs the opinions of congress. He will assume the air of a dependent instrument, ready to adopt the acts of the legislature, when in fact his spirit and his wishes pervade the whole system of legislation. If corruption ever eats its way silently into the vitals of this republic, it will be, because the people are unable to bring responsibility home to the executive through his chosen ministers. They will be betrayed, when their suspicions are most lulled by the executive, under the disguise of an obedience to the will of congress. If it would not have been safe to trust the heads of departments, as representatives, to the choice of the people, as their constituents, it would have been at least some gain to have allowed them a seat, like territorial delegates, in the house of representatives, where they might freely debate without a title to vote. In such an event, their influence, whatever it would be, would be seen, and felt, and understood, and on that account would have involved little danger, and more searching jealousy and opposition; whereas, it is now secret and silent, and from that very cause may become overwhelming.
§ 867. One other reason in favour of such a right is, that it would compel the executive to make appointments for the high departments of government, not from personal or party favourites, but from statesmen of high public character, talents, experience, and elevated services; from statesmen, who had earned public favour, and could command public confidence. At present, gross incapacity may be concealed under official forms, and ignorance silently escape by shifting the labours upon more intelligent subordinates in office. The nation would be, on the other plan, better served; and the executive sustained by more masculine eloquence, as well as more liberal learning.
§ 868. In the British parliament no restrictions of the former sort exist, and few of the latter, except such as have been created by statute. It is true, that an acceptance of any office under the crown is a vacation of a seat in parliament. This is wise; and secures the people from being betrayed by those, who hold office, and whom they do not choose to trust. But generally, they are re-eligible; and are entitled, if the people so choose, again to hold a seat in the house of commons, notwithstanding their official character. The consequence is, that the ministers of the crown assume an open public responsibility; and if the representation of the people in the house of commons were, as it is under the national government, founded upon a uniform rule, by which the people might obtain their full share of the government, it would be impossible for the ministry to exercise a controlling influence, or escape (as in America they may) a direct palpable responsibility. There can be no danger, that a free people will not be sufficiently watchful over their rulers, and their acts, and opinions, when they are known and avowed; or, that they will not find representatives in congress ready to oppose improper measures, or sound the alarm upon arbitrary encroachments. The real danger is, when the influence of the rulers is at work in secret, and assumes no definite shape; when it guides with a silent and irresistible sway, and yet covers itself under the forms of popular opinion, or independent legislation; when it does nothing, and yet accomplishes every thing.
§ 869. Such is the reasoning, by which many enlightened statesmen have not only been led to doubt, but even to deny the value of this constitutional disqualification. And even the most strenuous advocates of it are compelled so far to admit its force, as to concede, that the measures of the executive government, so far as they fall within the immediate department of a particular officer, might be more directly and fully explained on the floor of the house. Still, however, the reasoning from the British practice has not been deemed satisfactory by the public; and the guard interposed by the constitution has been received with general approbation, and has been thought to have worked well during our experience under the national government. Indeed, the strongly marked parties in the British parliament, and their consequent dissensions have been ascribed to the non-existence of any such restraints; and the progress of the influence of the crown, and the supposed corruptions of legislation, have been by some writers traced back to the same original blemish.
Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.
© 1987 by The University of Chicago