Article 1, Section 5, Clause 2 — Historical Background On Expulsion Clause

prev | next

Article I, Section 5, Clause 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

The Expulsion Clause states that “[e]ach House may [ . . . ] punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” [1](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn1art1 " U.S. Const. art. I, § 5, cl. 2. ") Thus, the Constitution requires that expulsion of a Member of Congress may only be enforced “with the Concurrence of two-thirds.” [2](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn2art1 " Id. ") While the Expulsion Clause does not specify the measure of the two-thirds majority, the standard is generally understood to be assessed relative to the number of Members of that body who are present and voting.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn3art1 " 14 Lewis Deschler, Deschler’s Precedents of the United States House of Representatives ch. 30, § 5.2; William Brown, House Practice: A Guide to the Rules, Precedents, and Procedures of the House, ch. 58, § 28 (2011). ") The two-thirds majority requirement mirrors the standard by which Congress may likewise remove officials in the Executive and Judicial Branches of government through the impeachment process.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn4art1 " See Gerald T. McLaughlin, Congressional Self-Discipline: The Power to Expel, To Exclude and To Punish, 41 Fordham L. Rev. 43, 48 fn. 37 (1972) (citing Special Committee on Congressional Ethics, Association of the Bar of the City of New York, Congress and the Public Trust 204 (1970)). ")

Like other constitutional provisions relating to the powers and privileges of the Congress,[5](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn5art1 " See, e.g., U.S. Const. art. I, § 5, cl. 2 (authorizing each house to “determine the Rules of its Proceedings . . . ” ); Id. (authorizing each house to “punish its Members” ); Id. art. I, § 6, cl.1 (providing that “for any speech or Debate” Members “shall not be questioned in any other Place” ). ") the origins of the Expulsion Clause lay with the practices of the British Parliament.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn6art1 " For a discussion of the exercise of the expulsion power by the House of Commons, see Dorian Bowman & Judith Farris Bowman, Article 1, Section 5: Congress’s Power to Expel-An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071, 1073–83 (1978). ") The English House of Commons historically exercised an inherent authority to expel members by a simple majority vote.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn7art1 " See 1 Joseph Story, Commentaries on the Constitution of the United States § 837 (1833) (hereinafter Story); Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine” : Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 243 (2014). ") That power was viewed as one to be wielded at the body’s “absolute discretion” with few recognized limitations, and as a result, it was historically used more liberally in England than it has been in the United States.[8](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn8art1 " Bowman & Bowman, supra note 6, at 1083. ") Moreover, the House of Commons expulsion power was used in a relatively ad hoc manner with, for example, no established standards governing the type of conduct warranting expulsion.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn9art1 " Id. ") As a result, hundreds of members were expelled from Parliament before the turn of the nineteenth century on grounds ranging from publishing slanderous writings to treason.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn10art1 " Id. at 1074. ") Early parliamentary expulsions were motivated not only by a desire to preserve the integrity of the legislative process, but also to expel unpopular or dissenting legislators for political or religious reasons.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn11art1 " Id. at 1073–78. ")

One contemporary English expulsion case that influenced the members of the Constitutional Convention was that of John Wilkes.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn12art1 " Cassady, supra note 7, at 222–49. ") Wilkes was a Member of Parliament who in 1763 criticized the King’s peace treaty with France.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn13art1 " See Powell v. McCormack, 395 U.S. 486, 527 (1969). ") Wilkes was arrested, expelled from the House of Commons, and fled into exile. He later returned to England and was reelected to Parliament in 1768, only to be convicted of seditious libel and again expelled from the House.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn14art1 " Id. ") Wilkes was repeatedly reelected, but each time Parliament excluded him, prevented him from taking his seat, and ultimately declared him ineligible for reelection.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn15art1 " Id. at 528. ") Wilkes was finally permitted to serve following his election in 1774, after which the House of Commons expunged his expulsions and exclusions, acknowledging that it had acted in a manner “subversive of the rights of the whole body of electors of this kingdom.” [16](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn16art1 " Id. (citing 22 Parl. Hist. Eng. 1411 (1782)). ")

English precedents and traditions concerning expulsion were incorporated into the proceedings of the colonial legislatures, where legislators were expelled for an equally wide array of reasons.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn17art1 " Bowman & Bowman, supra note 6, at 1083–85. ") But the Wilkes case had a “significant impact in the American colonies,” and after the Revolution, “few expulsions occurred in the new state legislatures.” [18](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn18art1 " See Powell, 395 U.S. at 531 (characterizing Wilkes’ struggles as a “cause celebre” for the colonists); Bowman & Bowman, supra note 6, at 1086. ") The House of Commons’s use of the expulsion power in the Wilkes case likely led to two constitutional restrictions on each house’s authority to judge its membership and discipline its members: constitutionally fixed qualifications for service in the House and Senate and a two-thirds supermajority requirement to expel a Member.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn19art1 " U.S. Const. art. I, § 5, cl. 1; Id. at art. I, § 5, cl. 2; Cassady, supra note 7, at 242–43. ")

Early draft versions of the Expulsion Clause from the Convention’s Committee of Detail[20](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn20art1 " The Committee of Detail was appointed to draft the Constitution based on previously adopted resolutions. ") distinguished the power to expel from the power to punish members for “disorderly behavior” [21](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn21art1 " See Bowman & Bowman, supra note 6, at 1087–90. ") and may have contributed to the lack of significant debate on the Expulsion Clause at the Constitutional Convention.[22](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn22art1 " Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 207 (2007). ") In early drafts, the “disorderly behavior” language appears to have been entirely separate from, and therefore inapplicable to, the power to expel.[23](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn23art1 " A draft presented to that committee distinguished between the power to punish and the power to expel: “Each House shall have authority . . . to punish its own Members for disorderly Behavior. Each House may expel a Member, but not a second time for the same Offence.” 2 Records of the Federal Convention of 1787 156 (Max Farrand ed., 1911). ") It was not until late in the Convention’s consideration of the provision that the body approved the two-thirds requirement for expulsion. James Madison recommended the addition, noting that “the right of expulsion was too important to be exercised by a bare majority . . . . ” [24](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn24art1 " Id. at 254 (remarks of James Madison). Madison’s view won out over that of Gouverneur Morris, who was concerned that by imposing a supermajority requirement “a few men from factious motives may keep in a member who ought to be expelled.” Id. ") No mention was made at the Convention in regards to the type of misconduct that would warrant expulsion.[25](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn25art1 " See Bowman & Bowman, supra note 6, at 1072. ") Accordingly, it appears that the Founders viewed the chief barrier to the expulsion power’s abuse as the procedural requirement of the approval of a supermajority of a house of Congress, as opposed to any substantive requirement that defines what sort of conduct warrants expulsion.[26](https://www.law.cornell.edu/constitution-conan/article-1/section-5/clause-2/historical-background-on-expulsion-clause#fn26art1 " See 1 Joseph Story, Commentaries on the Constitution of the United States § 835 (1833) (noting that the expulsion power “might be exerted for mere purposes of faction or party, to remove a patriot, or to aid a corrupt measure; and it has therefore been wisely guarded by the restriction, that there shall be a concurrence of two thirds of the members, to justify an expulsion” ). Th