Earl Warren

“ When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the 'qualifications' expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish 'standing incapacities,' which could be altered only by a constitutional amendment. ”

“ In order to determine whether there has been a textual commitment to a coordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through Art. I, § 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. Respondents maintain that the House has broad power under § 5, and, they argue, the House may determine which are the qualifications necessary for membership. ”

“ Our cases make it clear that the legislative immunity created by the Speech or Debate Clause performs an important function in representative government. It insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation. ”

“ For these reasons, we have concluded that Art. I, § 5, is at most a 'textually demonstrable commitment' to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the 'textual commitment' formulation of the political question doctrine does not bar federal courts from adjudicating petitioners' claims. ”

“ Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that by 1787, a legislature's power to judge the qualifications of its members was generally understood to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. ”

“ Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitional House resolution. That claim is still unresolved and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available when Alejandrino was decided. [12] A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. ”

“ When the Committee of Detail reported the provision to the Convention, it read:
'Every member of the House of Representatives shall be of the age of twenty five years at least; shall have been a citizen of (in) the United States for at least three years before his election; and shall be, at the time of his election, a resident of the State in which he shall be chosen.' Id., at 178.
However, as finally drafted by the Committee of Style, these qualifications were stated in their present negative form. Respondents note that there are no records of the 'deliberations' of the Committee of Style. ”

“ Nor is the distraction or hindrance increased because the claim is for salary rather than damages, or because the litigation questions action taken by the employee within rather than without the House. Freedom of legislative activity and the purposes of the Speech or Debate Clause are fully protected if legislators are relieved of the burden of defending themselves. ”

“ Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow constuction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, 'that the people should choose whom they please to govern them.' 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. ”

“ The Force Act gives the district courts jurisdiction over 'any civil action to recover possession of any office * * * wherein it appears that the sole question * * * arises out of denial of the right to vote * * * on account of race, color or previous condition of servitude.' However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen. ”

“ The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions A legislator is nom ore or no less hindered or distracted by litigation against a legislative employee calling into question the employee's affirmative action than he would be by a lawsuit questioning the employee's failure to act. ”

“ Respondents' alternate contention is that the case presents a political question because judicial resolution of petitioners' claim would produce a 'potentially embarrassing confrontation between coordinate branches' of the Federal Government. But, as our interpretation of Art. I, § 5, discloses, a determination of petitioner Powell's right to sit would require no more than an interpretation of the Constitution. ”

“ The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland, [23] the doctrine that, although an action against a Congressman may be barred by the Speech or Debate Clause, legislative employees who participated in the unconstitutional activity are responsible for their acts. Despite the fact that petitioners brought this suit against several House employees-the Sergeant at Arms, the Doorkeeper and the Clerk-as well as several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. ”

“ With the successful resolution of Wilkes' long and bitter struggle for the right of the British electorate to be represented by men of their own choice, it is evident that, on the eve of the Constitutional Convention, English precedent stood for the proposition that 'the law of the land had regulated the qualifications of members to serve in parliament' and those qualification were 'not occasional but fixed.' 16 Parl.Hist.Eng. ”

“ On the other hand, petitioners allege that the Constitution provides that an elected representative may be denied his seat only if the House finds he does not meet one of the standing qualifications expressly prescribed by the Constitution. ”

“ For example, James Madison urged its rejection, stating that the proposal would vest
'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. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. ”

“ Thus, Walpole's exclusion justifies only the proposition that an expulsion lasted for the remainder of the particular Parliament, and the expelled member was therefore subject to subsequent exclusion if reelected prior to the next general election. The two colonial cases arguably support a somewhat broader principle, i.. , that the assembly could permanently expel. Apparently the colonies did not consistently adhere to the theory that an expulsion lasted only until the election of a new assembly. ”

“ As respondents recognize, there is nothing in the wording or legislative history of § 1331 or in the decisions of this Court which would indicate that there is any basis for the interpretation they would give that section. Nor do we think the passage of the Force Act indicates that § 1331 does not confer jurisdiction in this case. The Force Act is limited to election challenges where a denial of the right to vote in violation of the Fifteenth Amendment is alleged. ”

“ His intention was 'to leave the Legislature entirely at large.' Ibid. Hugh Williamson, of North Carolina, expressed concern that if a majority of the legislature should happen to be 'composed of any particular description of men, of lawyers for example, * * * the future elections might be secured to their own body.' Ibid. [67] Madison then referred to the British Parliament's assumption of the power to regulate the qualifications of both electors and the elected and noted that 'the abuse they had made of it was a lesson worthy of our attention. ”

“ Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House [44] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution. ”

“ That House employees are acting pursuant to express orders of the House does not bar judicial review of the constitutionality of the underlying legislative decision Kilbourn decisively settles this question, since the Sergeant at Arms was held liable for false imprisonment even though he did nothing more than execute the House Resolution that Kilbourn be arrested and imprisoned. ”

“ Respondents do no seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined he met the standing requirements set forth in the Constitution. ”

“ Conceding that in Kilbourn the presence of the Sergeant at Arms and in Dombrowski the presence of a congressional subcommittee counsel as defendants in the litigation allowed judicial review of the challenged congressional action, respondents urge that both cases concerned an affirmative act performed by the employee outside the House having a direct effect upon a private citizen. ”

“ Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat Petitioner Powell and that, since the House of Representatives is not a continuing body [6] and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved and thus this litigation presents a 'case o controversy' within the meaning of Art. III: [7] (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress ”

“ Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all 'prerogatives, privileges and emoluments' for the period of his suspension. ”

“ Speaker, I want to expel Adam Clayton Powell, by seating him first, but that will not be my choice when the Curtis amendment is before us. I will be forced to vote for exclusion, about which I have great constitutional doubts, or to vote for no punishment at all. Given this raw and isolated issue, the only alternative I can follow is to vote for the Curtis amendment. I shall do so, Mr. Speaker, with great reservation.' Ibid.
33 Although each judge of the panel wrote a separate opinion, all were clear in stating that the District Court possessed subject matter jurisdiction. Powell v. ”

“ If you can reject those disagreeable to a majority, and expel whom you please, the House of Commons will be self-created and self-existing. You may expel til you approve, and thus in effect you nominate. The original idea of this House being the representative of the Commons of the realm will be lost.' 18 Parl.Hist.Eng. 367 (1775) .
68 Charles Warren concluded that 'Madison's reference was undoubtedly to the famous election case of John Wilkes * * *.' Warren, supra, at 420, n. 1. ”

“ The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell's qualifications as to age, citizenship, and residency; his involvement in a civil suit (in which he had been held in contempt) ; and ' (m) atters of * * * alleged official misconduct since January 3, 1961.' See Hearings on H.R. Res. No. 1 before Select Committee Pursuant to H.R. Res. No. ”

“ I, § 6, [17] is an absolute bar to petitioners' action. This Court has on four prior occasions-Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) ; United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966) ; Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) ; and Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881) -been called upon to determine if allegedly unconstitutional action taken by legislators or legislatie employees is insulated from judicial review by the Speech or Debate Clause. ”

“ Minority, of course, was a traditional standing incapacity, and Charles been cr rect in concluding that this exclusion been correct in concluding that this exlcusion was probably based upon an interpretation of the state constitutional requirement that members must be duly qualified according to law. Va.Const., 7 Thorpe 3816. See C. Warren, The Making of the Constitution 423, n. 1 (1928) . Respondents, based upon their misinterpretation of the Pennsylvania case just discussed, criticize Charles Warren for concluding that there had been only one exclusion during this period. ”