Article 1, Section 3, Clauses 4 and 5

[Volume 2, Page 246]

Document 4

Joseph Story, Commentaries on the Constitution 2:§§ 732--33, 735--39


§ 732. The original article, as first reported, authorized the senate to choose its own president, and other officers; and this was adopted in the convention. But the same draft authorized the president of the senate, in case of the removal, death, resignation, or disability of the president, to discharge his duties. When at a late period of the convention it was deemed advisable, that there should be a vice president, the propriety of retaining him, as presiding officer of the senate, seems to have met with general favour, eight states voting in the affirmative, and two only in the negative.

§ 733. Some objections have been taken to the appointment of the vice president to preside in the senate. It was suggested in the state conventions, that the officer was not only unnecessary, but dangerous; that it is contrary to the usual course of parliamentary proceedings to have a presiding officer, who is not a member; and that the state, from which he comes, may thus have two votes, instead of one. It has also been coldly remarked by a learned commentator, that "the necessity of providing for the case of a vacancy in the office of president doubtless gave rise to the creation of that officer; and for want of something else for him to do, whilst there is a president in office, he seems to have been placed, with no very great propriety, in the chair of the senate."

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§ 735. There is no novelty in the appointment of a person to preside, as speaker, who is not a constituent member of the body, over which he is to preside. In the house of lords in England the presiding officer is the lord chancellor, or lord keeper of the great seal, or other person appointed by the king's commission; and if none such be so appointed, then it is said, that the lords may elect. But it is by no means necessary, that the person appointed by the king should be a peer of the realm or lord of parliament. Nor has this appointment by the king ever been complained of, as a grievance, nor has it operated with inconvenience or oppression in practice. It is on the contrary deemed an important advantage, both to the officer, and to the house of peers, adding dignity and weight to the former, and securing great legal ability and talent in aid of the latter. This consideration alone might have had some influence in the convention. The vice president being himself chosen by the states, might well be deemed, in point of age, character, and dignity, worthy to preside over the deliberations of the senate, in which the states were all assembled and represented. His impartiality in the discharge of its duties might be fairly presumed; and the employment would not only bring his character in review before the public; but enable him to justify the public confidence, by performing his public functions with independence, and firmness, and sound discretion. A citizen, who was deemed worthy of being one of the competitors for the presidency, could scarcely fail of being distinguished by private virtues, by comprehensive acquirements, and by eminent services. In all questions before the senate he might safely be appealed to, as a fit arbiter upon an equal division, in which case alone he is entrusted with a vote.

§ 736. But the strong motive for this appointment was of another sort, founded upon state jealousy, and state equality in the senate. If the speaker of the senate was to be chosen from its own members, the state, upon whom the choice would fall, might possess either more or less, than its due share of influence. If the speaker were not allowed to vote, except where there was an equal division, independent of his own vote, then the state might lose its own voice; if he were allowed to give his vote, and also a casting vote, then the state might, in effect, possess a double vote. Either alternative would of itself present a predicament sufficiently embarrassing. On the other hand, if no casting vote were allowed in any case, then the indecision and inconvenience might be very prejudicial to the public interests, in case of an equality of votes. It might give rise to dangerous feuds, or intrigues, and create sectional and state agitations. The smaller states might well suppose, that their interests were less secure, and less guarded, than they ought to be. Under such circumstances, the vice president would seem to be the most fit arbiter to decide, because he would be the representative, not of one state only, but of all; and must be presumed to feel a lively interest in promoting all measures for the public good. This reasoning appears to have been decisive in the convention, and satisfactory to the people. It establishes, that there was a manifest propriety in making the arrangement conducive to the harmony of the states, and the dignity of the general government. And as the senate possesses the power to make rules for its own proceedings, there is little danger, that there can ever arise any abuse of the presiding power. The danger, if any, is rather the other way, that the presiding power will be either silently weakened, or openly surrendered, so as to leave the office little more, than the barren honour of a place, without influence and without action.

§ 737. A question, involving the authority of the vice president, as presiding officer in the senate, has been [Volume 2, Page 247] much discussed in consequence of a decision recently made by that officer. Hitherto the power of preserving order during the deliberations of the senate in all cases, where the rules of the senate did not specially prescribe another mode, had been silently supposed to belong to the vice president, as an incident of office. It had never been doubted, much less denied, from the first organization of the senate; and its existence had been assumed, as an inherent quality, constitutionally delegated, subject only to such rules, as the senate should from time to time prescribe. In the winter session of 1826, the vice president decided in effect, that, as president of the senate, he had no power of preserving order, or of calling any member to order, for words spoken in the course of debate, upon his own authority, but only so far, as it was given, and regulated by the rules of the senate. This was a virtual surrender of the presiding power (if not universally, at least in that case) into the hands of the senate; and disarmed the officer even of the power of self-protection from insult or abuse, unless the senate should choose to make provision for it. If, therefore, the senate should decline to confer the power of preserving order, the vice president might become a mere pageant and cipher in that body. If, indeed, the vice president had not this power virtute officii, there was nothing to prevent the senate from confiding it to any other officer chosen by itself. Nay, if the power to preside had not this incident, it was difficult to perceive, what other incident it had. The power to put questions, or to declare votes, might just as well, upon similar reasoning, be denied, unless it was expressly conferred. The power of the senate to prescribe rules could not be deemed omnipotent. It must be construed with reference to, and in connexion with the power to preside; and the latter, according to the common sense of mankind, and of public bodies, was always understood to include the power to keep order; upon the clear ground, that the grant of a power includes the authority to make it effectual, and also of self-preservation.

§ 738. The subject at that time attracted a good deal of discussion; and was finally, as a practical inquiry, put an end to in 1828, by a rule made by the senate, that "every question of order shall be decided by the president without debate, subject to appeal to the senate." But still the question, as one of constitutional right and duty, liable to be regulated, but not to be destroyed by the senate, deserves, and should receive, the most profound investigation of every man solicitous for the permanent dignity and independence of the vice presidency.

§ 739. The propriety of entrusting the senate with the choice of its other officers, and also of a president pro tempore in the absence of the vice president, or when he exercises the office of president, seems never to have been questioned; and indeed is so obvious, that it is wholly unnecessary to vindicate it. Confidence between the senate and its officers, and the power to make a suitable choice, and to secure a suitable responsibility for the faithful discharge of the duties of office, are so indispensable for the public good, that the provision will command universal assent, as soon as it is mentioned. It has grown into a general practice for the vice president to vacate the senatorial chair a short time before the termination of each session, in order to enable the senate to choose a president pro tempore, who might already be in office, if the vice president in the recess should be called to the chair of state. The practice is founded in wisdom and sound policy, as it immediately provides for an exigency, which may well be expected to occur at any time; and prevents the choice from being influenced by temporary excitements or intrigues, arising from the actual existence of a vacancy. As it is useful in peace to provide for war; so it is likewise useful in times of profound tranquillity to provide for political agitations, which may disturb the public harmony.

The Founders' Constitution
Volume 2, Article 1, Section 3, Clauses 4 and 5, Document 4
The University of Chicago Press

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