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Why exactly is the Senate permitted to expel a felon?

By Jack M. Balkin

Sen. Majority Leader Harry Reid is apparently confident that Sen. Ted Stevens (R-Alaska) is not long for the Senate:

On CNN today, Senate Majority Leader Harry Reid . . . declared that Mr. Stevens will not, will not be in the Senate, come the next session. Asked about Senator Daniel Inouye?s declaration that Mr. Stevens of course could return, Mr. Reid said:

All the Republicans ? John Ensign, head of the Republican Senatorial Campaign Committee, Republican Leader McConnell and a long list of people ? said that he?s going to be kicked out of the Senate. Of course he is. He is not going to survive.

I find it altogether unclear why Sen. Reid believes so confidently that the Senate will be permitted, as a constitutional matter to kick Sen. Stevens out of the Senate. Let's begin with this question: Could a state require that a candidate for the Senate not be a convicted felon? One might believe that the answer would be "of course," but I take it that the meaning of the Term Limits v. Thornton, 514 U.S. 779 (1995), is that states cannot add to the bare qualifications set out by the Constitution itself, which are limited to "hav[ing] attained to the Age of thirty Years, and been nine Years a Ciizen of the United States, and who shall..., when elected, be an Inhabitant of the State in which he shall be chosen." So, if a "textual" reading of this clause prohibits Arkansas from adding to the list of qualifications "shall not have already served X terms in the Senate"--for what it is worth, I agreed with the dissenters, Thomas, Scalia, Rehnquist, and O'Connor--then I fail to see how it could add a requirement "shall not have been convicted of a felony." If anyone believes that I am wrong on the meaning of Thornton, I await correction with interest.

But, of course, Article I, Section 5 states that "Each House shall be the Judge of the . . . Qualifications of its own Members...." and a certain kind of mindless textualism could read this as supporting the proposition that Congress has complete and utter discretion. But that can't be right, even if, for sake of argument, we can stipulate that congressional decisions would be non-justiciable. If a "sovereign" (or "semi-sovereign" or whatever you want to call it) state can't add to the list of qualifications, why in the world can Congress? The most reasonable reading of the clause is that the Senate can determine whether a proposed member is 30, a citizen for nine years (which kept Albert Gallatin out of the Senate and, some argued in 1870, should have disqualified Hiram Revels, the African-American senator from Mississippi), and an inhabitant of the state the senator purports to represent (which, arguably, couldl support denying Elizabeth Dole her seat had the votes of North Carolina chosen to re-elect her). If one believes that the Senate does indeed have plenary power,

then, I presume, it would be perfectly legitimate, as a constitutional matter, to refuse to a newly-elected senator on racial or religious grounds, which, I presume, just can't be right, even if no court would intervene (and are we really confident that courts would choose to impotent in the case of such an outrage?). But every senator takes an oath to abide by the Constitution and such an exclusion would count, for any reasonable person, as a betrayal of that oath. But one might say that this is only because of the egregious substantive grounds, i.e., racial or religious prejudice. Other, "reasonable," grounds (such as the desire not to associate with felons) would be acceptable. But I suggest that Thornton rejects any such argument. It is eminently "reasonable" to adopt term limits, even if, as a matter of policy, I think they are bad ideas. But the majority in Thornton said that reasonableness is simply irrelevant (any more than, say, Sandra Day O'Connor would allow "reasonable" conscription of state officials for the administration of federal programs or Hugo Black would allow "reasonable" regulation of free speech.... you get the point).

If the people of Alaska want to be represented by a felon, then why not? To be sure, if he is sentenced to jail, there might be some additional problems, but then the good folks of Alaska might have considered that when casting their vote for Sen. Stevens. It is not unknown for states to be effectively "unrepresented" by their senators. After all, South Dakota was without the services of Sen. Tim Johnson while he was recovering from his stroke (and they just re-elected him by something like a 2/3 vote). To the extent that the role of a contemporary senator, alas, is constituent services, then the office could be organized to provide them even if the senator himself is in jail. Or, perhaps, the jail term could be served at night and during Senate recesses, which would be a reasonable way of handling Sen. Stevens's punishment.

My point is fully serious. Should Senator Stevens wish to fight his expulsion, I personally believe he has a very strong constitutional argument that I'm fully prepared to make on his behalf. If I am wrong, it is because a) you agree that Thornton was wrongly decided and, therefore, need not really be followed by a constitutionally conscientious senator; or b) you believe, for reasons that must be explained, that Congress has greater attributes of sovereignty than does Arkansas (in imposing term limits) or Alaska (in deciding that it wishes to be represented by a felon). I suppose that someone might simply cite earlier Senate precedents. But all of them preceded Thornton.

Full post as published by Balkinization on November 09, 2008 (boomark / email).