Powell v. McCormack/Concurrence Douglas

by William O. Douglas

Mr. Justice DOUGLAS.

While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, § 2, cl. 2, of the Constitution. ^[1] Up to now the understanding has been quite clear to the effect that such authority does not exist. ^[2] To be sure, Art. I, § 5, provides that: 'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * *.' Contests may arise over whether an elected official meets the 'qualifications' of the Constitution, in which event the House is the sole judge. ^[3] But the House is not the sole judge when 'qualifications' are added which are not specified in the Constitution. ^[4]

A man is not seated because he is a Socialist or a Communist. ^[5]

Another is not seated because in his district members of a minority are systematically excluded from voting. ^[6]

Another is not seated because he has spoken out in opposition to the war in Vietnam. ^[7]

The possible list is long. Some cases will have the racist overtones of the present one.

Others may reflect religious or ideological clashes. ^[8]

At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of 'one man, one vote.' When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?

By Art. I, § 5, the House may 'expel a Member' by a vote of two-thirds. And if this were an expulsion case I would think that no justiciable controversy would be presented, the vote of the House being two-thirds or more. But it is not an expulsion case. Whether it could have been won as an expulsion case, no one knows. Expulsion for 'misconduct' may well raise different questions, different considerations. Policing the conduct of members, a recurring problem in the Senate and House as well, is quite different from the initial decs ion whether an elected official should be seated. It well might be easier to bar admission than to expel one already seated.

The House excluded Representative-elect Powell from the 90th Congress allegedly for misappropriating public funds and for incurring the contempt of New York courts. ^[9] Twenty-six years earlier, members of the upper chamber attempted to exclude Senator-elect William Langer of North Dakota for like reasons. ^[10] Langer first became State's Attorney for Morton County, North Dakota, from 1914 to 1916, and then served as State Attorney General from 1916 to 1920. He became Governor of the State in 1932 and took office in January 1933. In 1934 he was indicted for conspiring to interfere with the enforcement of federal law by illegally soliciting political contributions from federal employees, and suit was filed in the State Supreme Court to remove him from office. ^[11] While that suit was pending, he called the State Legislature into special session. ^[12] When it became clear that the court would order his ouster, he signed a Declaration of Independence, invoked martial law, and called out the National Guard. ^[13] Nonetheless, when his own officers refused to recognize him as the legal head of state, he left office in July 1934. As with Adam Clayton Powell, however, the people of the State still wanted him. In 1937 they re-elected him Governor and, in 1940, they sent him to the United States Senate.

During the swearing-in ceremonies, Senator Barkley drew attention to certain complaints filed against Langer by citizens of North Dakota, yet asked that he be allowed to take the oath of office

'without prejudice, which is a two-sided proposition-without prejudice to the Senator and without prejudice to the Senate in the exercise of its right (to exclude him).' ^[14]

The matter of Langer's qualifications to serve in the Senate was referred to committee which held confidential hearings on January 9 and 16, 1941, and open hearings on November 3 and 18, 1941. By a vote of 14 to 2, the committee reported that a majority of the Senate had jurisdiction under Art. I, § 5, cl. 1, of the Constitution to exclude Langer; and, by a vote of 13 to 3, it reported its recommendation that Langer not be seated. ^[15]

The charges against Langer were various. As with Powell, they included claims that he had misappropriated public funds ^[16] and that he had interfered with the judicial process in a way that beclouded the dignity of Congress. ^[17] Reference was also made to his professional ethics as a lawyer. ^[18]

Langer enjoyed the powerful advocacy of Senator Murdock from Utah. The Senate debate itself raged for over a year. ^[19] Much of it related to purely factual allegations of 'moral turpitude.' Some of it, however, was addressed to the power of the Senate under Art. I, § 5, cl. 1, to exclude a member-elect for lacking qualifications not enumerated in Art. I, § 3.

'Mr. MURDOCK. * * * (U)nder the Senator's theory that the Senate has the right to add qualifications which are not specified in the Constitution, does the Senator believe the Senate could adopt a rule specifying intellectual and moral qualifications? ^[20]

'Mr. LUCAS. The Senate can do anything it wants to do * * *. Yes; the Senate can deny a person his seat simply because it does not like the cut of his jaw, if it wishes to.' ^[21]

Senator Murdock argued that the only qualifications for service in the Senate were those enumerated in the Constitution; that Congress had the power to review those enumerated qualifications; but that it could not-while purporting to 'judge' those qualifications-in reality add to them.

'Mr. LUCAS. The Senator referred to article I, section 5. What does he think the framers of the Constitution meant when they gave to each House the power to determine or to judge the qualifications, and so forth, of its own Members? ^[22]

'Mr. MURDOCK. I construe the term 'judge' to mean what it is held to mean in its common, ordinary usage. My understanding of the definition of the word 'judge' as a verb is this: When we judge of a thing it is supposed that the rules are laid out; the law is there for us to look at and to apply to the facts.

'But whoever heard the word 'judge' used as meaning the power to add to what already is the law?' ^[23]

It was also suggested from the floor that the enumerated qualifications in § 3 were only a minimum which the Senate could supplement; and that the Founding Fathers so intended by using words of the negative. To which Senator Murdock replied-

'Mr. President, I think it is the very distinguished and able Senator from Georgia who makes the contention that the constitutional provisions relating to qualifications, because they are stated in the negative-that is, 'no person shall be a Senator'-are merely restrictions or prohibitions on the State; but-and I shall read it later on-when we read what Madison said, when we read what Hamilton said, when we read what the other framers of the Constitution said on that question, there cannot be a doubt as to what they intended and what they meant. ^[24]

'Madison knew that the qualifications should be contained in the Constitution and not left to the whim and caprice of the legislature. ^[25]

'Bear that in mind, that the positive or affirmative phraseology was not changed to the negative by debate or by amendment in the convention, but it was changed by the committee of which Madison was a member, the committee on style.' ^[26]

The Senate was nonetheless troubled by the suggestion that the Constitution compelled it to accept anyone whom the people might elect, no matter how egregious and even criminal his behavior. No need to worry, said Murdock. It is true that the Senate cannot invoke its majority power to 'judge' under Art. I, § 5, cl. 1, as a device for excluding men elected by the people who possess the qualifications enumerated by the Constitution. But it does have the power under Art. I, § 5, cl. 2, to expel anyone it designates by a two-thirds vote. None-theless, he urged the Senate not to bypass the two-thirds requirement for expulsion b wrongfully invoking its power to exclude. ^[27]

'Mr. LUCAS. * * * The position the Senator from Utah takes is that it does not make any difference what a Senator does in the way of crime, that whenever he is elected by the people of his State, comes here with bona fide credentials, and there is no fraud in the election, the Senate cannot refuse to give him the oath. That is the position the Senator takes?

'Mr. MURDOCK. That is my position; yes. ^[28]

'My position is that we do not have the right to exclude anyone who comes here clothed with the proper credentials and possessing the constitutional qualifications. My position is that we do not have the right under the provision of the Constitution to which the Senator from Florida referred, to add to the qualifications. My position is that the State is the sole judge of the intellectual and the moral qualifications of the representatives it sends to Congress.' ^[29]

'MR. MURDOCK (quoting Senator Philander Knox). 'I know of no defect in the plain rule of the Constitution for which I am contending. * * * I cannot see that any danger to the Senate lies in the fact that an improper character cannot be excluded without a two-thirds vote. It requires the unanimous vote of a jury to convict a man accused of crime; it should require, and I believe that it does require, a two-thirds vote to eject a Senator from his position of honor and power, to which he has been elected by a sovereign State." ^[30]

Thus, after a year of debate, on March 27, 1942, the Senate overruled the recommendation of its committee and voted 52 to 30 to seat Langer.

I believe that Senator Murdock stated the correct constitutional principle governing the present case.

Notes

1  U.S.Const., Art. I, § 2, cl. 2:

'No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.'

2  The Constitutional Convention had the occasion to consider several proposals for giving Congress discretion to shape its own qualifications for office and explicitly rejected them. James Madison led the opposition by arguing that such discretion would be

'an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution.' 2 M. Farrand, Records of the Federal Convention of 1787, pp. 249-250 (1911). Alexander Hamilton echoed that same conclusion:

'The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.' The Federalist Papers, No. 60, p. 371 (Mentor ed. 1961).

And so, too, the early Congress of 1807 decided to seat Representative-elect William McCreery on the ground that its power to 'judge' was limited by the enumerated qualifications.

'The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed b an authority equal to that which framed the Constitution at first * * *. Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only.' 17 Annals of Cong. 872 (1807) (remarks of Rep. Findley, Chairman of House Committee of Elections).

Constitutional scholars of two centuries have reaffirmed the principle that congressional power to 'judge' the qualifications of its members is limited to those enumerated in the Constitution. 1 J. Story, Commentaries on the Constitution 462 (5th ed. 1891); C. Warren, The Making of the Constitution 420-426 (1928). See also remarks by Emmanuel Celler, Chairman of the House Select Committee which inquired into the qualifications of Adam Clayton Powell, Jr., and which recommended seating him: 'The Constitution lays down three qualifications for one to enter Congress-age, inhabitancy, citizenship. Mr. Powell satisfies all three. The House cannot add to these qualifications.' 113 Cong.Rec. 4998.

3  Baker v. Carr, 369 U.S. 186, 242, 82 S.Ct. 691, 723, 7 L.Ed.2d 663, n. 2 (Douglas, J., concurring.)

4  The question whether Congress has authority under the Constitution to add to enumerated qualifications for office is itself a federal question within the particular expertise of this Court. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706. Where that authority has been exceeded, redress may be properly sought here. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60. Congress itself suspected no less in deciding to exclude Rep. Powell:

'(C)ases may readily be postulated where the action of a House in excluding or expelling a Member may directly impinge upon rights under other provisions of the Constitution. In such cases, the unavailability of judicial review may be less certain. Suppose, for example, that a Member was excluded or expelled because of his religion or race, contrary to the equal protection clause, or for making an unpopular speech protected by the first amendment * * *. (E) xclusion of the member-elect on grounds other than age, citizenship, or inhabitancy could raise an equally serious constitutional issue.' H.R.Rep.No.27, 90th Cong., 1st Sess., 30 (1967).

See also 113 Cong.Rec. 4994.

5  Case of Victor Berger, 6 C. Cannon, Precedents of the House of Representatives of the United States § 56 (1935).

6  Id., at § 122.

7  See, .e.g., Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235.

8  1 A. Hinds, Precedents of the House of Representatives of the United States § 481 (1907).

9  113 Cong.Rec. 4997.

10  S.Doc. No. 71 on Senate Election, Expulsion and Censure Cases from 1789 to 1960, 87th Cong., 2d Sess., 140 (1962).

11  Hearings on A Protest to the Seating of William Langer, before the Senate Committee on Privileges and Elections, 77th Cong., 1st Sess., 820 (Nov. 3, 18, 1941) (hereinafter Hearings).

12  Hearings 821.

13  Hearings 820.

14  87 Cong.Rec. 3-4 (1941).

15  S.Rep.No.1010, 77th Cong., 2d Sess. (1942).

16  It was alleged that he had conspired as Governor to have municipal and county bonds sold to a friend of his who made a profit of $300,000 on the purchase, and purportedly rebated as much as $56,000 to Langer himself. Hearings 822-823.

17  At the retrial of his conviction for conspiring to interfere with the enforcement of federal law, he was said to have paid money to have a friend of his, Judge Wyman, be given control of the litigation, and to have 'meddled' with the jury. Hearings 20-42, 120-130.

18  He was charged as a lawyer with having accepted $2,000 from the mother of a boy in prison on the promise that he would obtain his pardon, when he knew, in fact, that a pardon was out of the question. He was also said to have counseled a defendant-client of his to marry the prosecution's chief witness in order to prevent her from testifying against him. And finally, it was suggested that he once bought an insurance policy during trial from one of the jurors sittn g in judgment of his client. Hearings 820-830.

19  87 Cong.Rec. 3-4, 34, 460 (1941); 88 Cong.Rec. 822, 828, 1253, 2077, 2165, 2239, 2328, 2382, 2412, 2472, 2564, 2630, 2699, 2759, 2791, 2801, 2842, 2858, 2914, 2917, 2959, 2972, 2989, 3038, 3051, 3065, 5668 (1942).

20  88 Cong.Rec. 2401.

21  Ibid.

22  88 Cong.Rec. 2474.

23  Ibid.

24  Ibid.

25  88 Cong.Rec. 2483.

26  88 Cong.Rec. 2484.

27  Although the House excluded Adam Clayton Powell by over two-thirds vote, it was operating on the assumption that only a majority was needed. For the suggestion that the House could never have rallied the votes to exclude Powell on the basis of a two-thirds ground rule, see Note, 14 How.L.J. 162 (1968); Note, 42 N.Y.U.L.Rev. 716 (1967).

28  88 Cong.Rec. 2488.

29  88 Cong.Rec. 2490.

30  88 Cong.Rec. 2488. Senator Knox of Pennsylvania had defended Senator-elect Reed Smoot of Utah in 1903 against charges that he ought to be excluded because of his affiliation with a group (Mormons) that countenanced polygamy. S.Doc.No.71, 87th Cong., 2d Sess., 97.