Article 1: Part 3

Another weekend, another chunk of the Constitution. I’m going to try to stagger these with other posts, because if I let this project dominate my blog too much I think I’ll just get frustrated and abandon the project, and I’m finally starting to write with some frequency again.

As usual, please don’t mistake me for any kind of expert. I’m probably learning far more than I’m teaching, here.

Okay, let’s get a little farther in. 

Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

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

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

From the U.S. Constitution Online. 

Section 5 begins with a classic example of eighteenth century dense writing. Seriously, it’s all one sentence, and yet look how much is packed into it! Each house decides if it was elected fairly and if a prospective member is qualified, which I’m sure has never been abused by a majority party to maintain power. It also states that more than half of the members have to be there to actually do anything, and if there aren’t enough to do Business then the people who showed up can schedule a future meeting of the entire house.

I tripped up a bit over the way they use “adjourn”, these days it usually means just ending a meeting. It does include that here, “We don’t have quorum, so we’ll adjourn until Tuesday,” but in this context the vital part of it is setting a time to resume.

The houses make their own rules, enforce their own rules, and can kick someone out with a two-thirds vote. So in theory the democratic will of your entire state can be overridden by 67 senators, right? Well, kind of. I mean, the election establishes who gets in, it never says they have to keep them. In a weird way they’re all in it together, they’re held to the same standards and all know that whatever they can do to someone can also be done to them, so as a body the senate is surprisingly tolerant of its own. According to Wikipedia only 15 senators have actually been expelled in the entire history, and only another 18 even had proceedings initiated. So it’s a thing, but it’s rare.

I want to take a moment to consider what it says about our political climate that I felt a need to so carefully examine the idea that elected officials might try to get each other expelled from office. I really want to believe that they’re more rational and sensible people than they appear from all the shit they say in speeches, but clearly on some level I don’t.

Next up we have the journals. I fell down a rabbit hole looking up the journals, there’s some interesting stuff in the history, and probably in the journals themselves although I didn’t dare look into them with so little time to spare.

In particular I’d like to draw attention to this Heritage essay which states that having the journals published was not at all a controversial decision back when the Constitution was being drafted, but that the provision to keep some things secret was. There was also some arguing over the “from time to time” bit, since it implies that Congress could put off publication and keep some secrets for a while.

The founders have a near-mythical status in the United States. They’re usually referred to as the “Founding Fathers” (A convention I absolutely hate, by the way. They were not our parents, and fuck patriarchy.) and spoken of as if they were more than human, and all we can do is try to interpret their will as best we can.

The truth is, of course, that they were just as human as we are, and had sharp divides over their competing interests and ideologies. The context in which they worked is pretty alien to modern Americans; they had just spent ten years trying to hash out a government out of the chaos of the revolution, they had to figure out a way to work together even though they sometimes had radically different goals and motivations.

The dislike of secrecy seems uncharacteristic of government now, but at the time these guys knew they were going to be living under this system for a long time (or else getting absorbed by one of the European powers) and that nobody was guaranteed a place at the top. Furthermore, the country was filled with people who were demonstrably willing to overthrow a government they felt was unjust so any system had to keep them content or else those at the top had no guarantee of safety, either.

The checks and balances throughout the Constitution were not just a philosophical idea of justice, they were a practical step to get this project off the ground and stable before the United States dissolved into a dozen little nation-states. This is why power is dived up the way it is, the President leads the military, but only Congress can declare war. The Legislature makes laws, but must accept the Court’s interpretation of them. The Supreme Court can overturn any law Congress can make, but Justices are chosen by the President, and Congress must approve these appointments. The list goes on and on, my point is that everybody knew enough history to know that revolutions have been used many, many times as a way for tyrants to get into power and nobody was willing to accept that unless they knew damn well that they’d be the tyrant in question.

Possibly some of them wouldn’t even accept it then, but that’s just speculation.

For all my cynicism, there probably was some truly noble idealism going on. But I still suspect that if any one of the founders had been powerful enough to get away with it, they would have done as Napoleon did a decade later.

I’ve wandered far, far afield here, so let’s try to get back on track.

The last paragraph of Section 5 sets a rule I never noticed before: Each house of Congress needs permission from the other to take more than three days off or to move the meeting place. Apparently this is to keep one house from sabotaging their other.

This is already long, but I think I can squeeze in one more section.

Section 6. (The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.) (The preceding words in parentheses were modified by the 27th Amendment.) They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

From the U.S. Constitution Online. 

Okay. So Congress gets paid by the U.S. government, and that pay is decided by law. Congress also makes the law. You may have noticed a potential issue, here… The 27th Amendment, which tries to patch that problem, has a fascinating history which I’m not going to tell you about for a long, lone time.

Whether or not to pay Congress was a big question during the composition of the Constitution. The thinking seems to have gone that if they aren’t paid, only the rich will be able to afford to actually be members of Congress, and we get a plutocracy. This seems downright hilarious now, because while there are probably one or two Congressmembers who don’t count as “rich”, maybe even a few who came from actual poverty, the standard image of a member of our legislative branch is not only a rich guy, but one from a rich family.

Adrian Vermeule writes that there was a fear that unpaid congressmen would turn to corruption to supplement their income, and I’m sure I’ve lost my audience to tears of laughter at that thought. Honestly, I expect that to most congressbeasts, the money paid by the Treasury is a supplement to their primary income of corruption. Perhaps I’m just being cynical again.

Congresscritters are also immune to arrest when congress is in session, except for cases of treason, felonies, and breach of the peace. I’m sure at least once a congressperson has decided to stop on the way to commit as many misdemeanors as possible. I’m not going to look that up just now, I’m almost done with this painfully long post. (I caught a glance of an analysis while looking up something else, and it sounds like this is a very narrow, effectively obsolete privilege which does not do what, to modern eyes, it immediately appears to do. Perhaps I’ll look it up some more someday.)

Finally, nobody in Congress can be appointed to any civil office during their term. This is a straightforward attempt to prevent the President from bribing the legislature with cushy jobs, which was a problem in the British government at the time. These days what happens instead is that the military-industrial complex rewards the right kind of congressbastards with a cushy job after they leave the legislature.

The problem with political writing is that too much of it will inevitably put me in a foul mood, and as someone once said, “Everything is political.”

Anyway, I’m going to post this beast of a blog entry and go take a long shower. Have a great weekend everyone, and I’ll see you next time.

About Leo Tarvi

Mostly fictional.

Posted on August 27, 2016, in U.S. Constitution and tagged , , , , , , . Bookmark the permalink. Leave a comment.

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