Salvaging the Speaker Clause: The Constitutional Case Against Non-Member Speakers of the House

Abstract

As the Founding generation understood the word, “Speaker” meant an elected member of the House. Yet modern representatives often nominate non-House-members for the speakership. To correct this constitutional drift, this Article closely analyzes the text of the Speaker Clause, the structure of constitutional government, and 700 years of history and tradition to show that the Constitution absolutely requires the Speaker of the House to be a member of the House.

It also considers practical law. If, as this Article argues, the Constitution bars nonmembers from the speakership, who can enforce that rule, especially if Congress itself is the one violating it? The Article addresses the problem of justiciability and considers Congress’s own independent duty to interpret and uphold the Constitution.

This Article’s conclusion is significant. It clarifies the procedure and rationale involved in choosing a Speaker of the House. And by excluding nonmembers as candidates for the speakership, this Article’s conclusion promises to make future speakership negotiations and votes smoother, eliminating one potential avenue for meaningless protest votes.