Can the House Elect a Non-Member Speaker?

At Liberty Law Blog, Diana Schaub (Loyola Maryland, Political Science) says no: Dysfunction Is No Excuse for Misreading the Constitution.  From the core of the argument:

There is an inescapable logic to the setting forth of the Constitution’s sections which should guide interpretation. In Article 1, Section 1, we learn that Congress is vested with specified legislative powers and that Congress “shall consist of a Senate and House of Representatives.” In Article 1, Section 2, Clause 1, we learn that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

These definitions govern the meaning of subsequent clauses. I admit that it would have put the kibosh on the present foolishness if the fifth clause had included the words in italics: “The House of Representatives shall choose from among their number their Speaker.” I think it simply never occurred to them that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator. The possessive pronoun is important. The House chooses “their” Speaker—a Speaker, we might say, who is of the House, by the House, and for the House. According to Article 1, Section 2, Clause 1, the House is composed of members and only members. The existing members of the House cannot summon into being a new member. The drafters thought the chain of connection from Sections 1 and 2 to Section 5 was clear enough; and for over 200 years, it was.

The first Congress clearly thought the Speaker must be drawn from the current membership. When they assembled on April 1, 1789, the first order of business was the drafting of rules. By April 7, they had adopted the “STANDING RULESand ORDERS of this HOUSE,” the first of which laid out “the DUTY of the SPEAKER.” Among the duties:

In all cases of ballot by the house, the speaker shall vote; in other cases he shall not vote, unless the house be equally divided, or unless his vote, if given to the minority, will make the division equal, and in case of such equal division, the question shall be lost. 

(With further originalist/textualist arguments, all worth reading.  Contra argument from Connor Ewing here; additional thoughts from Matthew Franck [NRO] here and [more strongly] here).

I’m inclined to agree with Professor Schaub, and I would add this:  it appears that the Speaker of the House of Commons in England in the eighteenth century had by longstanding practice been a member of the House.  The U.S. Speaker is clearly modeled in part on the English Speaker, as shown by the title (even if the offices have diverged considerably in the modern era).  Plus, I bet that, to the extent early state legislatures had an equivalent office, it had to be held by a member.  So the background assumption was likely that the office of Speaker must be held by a member.

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