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

55 Pages Posted: 9 Jan 2023 Last revised: 15 Mar 2023

See all articles by Tanner Wadsworth

Tanner Wadsworth

United States District Courts

Kade Allred

United States District Courts; BYU Law School

Adam Reed Moore

BYU Law School

Date Written: January 6, 2023

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.

Suggested Citation

Wadsworth, Tanner and Allred, Kade and Moore, Adam Reed, Salvaging the Speaker Clause: The Constitutional Case Against Non-Member Speakers of the House (January 6, 2023). University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2023, Available at SSRN: https://ssrn.com/abstract=4318948

Tanner Wadsworth (Contact Author)

United States District Courts ( email )

Pocatello, ID 83201
United States

Kade Allred

United States District Courts

Pocatello, ID 83201
United States

BYU Law School ( email )

Adam Reed Moore

BYU Law School ( email )

Provo, UT
United States

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