The Speaker of the House

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. paean says:

    Does the Constitution really impose such a requirement though? A fair argument could be made that it’s just longstanding tradition, which as you point out is not unanimous on the subject. Article I, Section 2 also vests the power to choose the Speaker (and other officers) in the House explicitly, suggesting that it’s an unreviewable matter of discretion (aside from the political question issues).

  2. I suppose you might also note that the Vice President is an officer of the Senate (per Article I, Section 3) despite the fact that he is not an elected member.

  3. Brett Bellmore says:

    I think we could do without this whole “unwritten constitution” business; The written constitution consists of laws which the government is under legal obligation to follow until duly amended. The unwritten “constitution” is just traditions which lack legal standing, and only last so long as people feel like following them.

    Totally different categories.

    They can pick anyone at all they want to be speaker. They’re not going to pick Gingrich, but that’s only because they don’t want to.

  4. Joe says:

    The “written constitution” involves lots of terms that only get meaning from things beyond the four corners of the text* as well as various structural and other principles that also are not expressly written in various respects. So, “just tradition” is quite important here and in fact influences things with clear “legal standing.”

    The immediate issue does raise an interesting question but since not once since 1789 was someone chosen from outside the House, tradition has strong force and many understand the office to require pre-existing membership in the House. This is not unreasonable and as a reflection of reality, it is an implicit requirement. The is not as set in stone as other things, but it still pretty important.

    I guess we can just ignore that sort of thing, but it doesn’t seem that realistic.

    [* e.g., what does ‘cruel and unusual’ means? What is “usual” is in part a matter of what is the normal “tradition” over a span of time. It is not “just” tradition but gives meat to the term itself]

  5. prometheefeu says:


    That the Constitution requires looking at traditions to interprets certain provisions does not mean that other traditions form an “unwritten constitution”. Regardless, this would be a poor candidate for an unwritten constitution. Speakers are chosen from the House for all sorts of political reasons (not least that being in the house probably gives you greater access to those who elect the speaker). But I don’t see any evidence of strong normative value attached to this tradition. If the House deviated, people would be confused, not angry.

  6. Joe says:


    If traditions are used to interpret the Constitution, the traditions themselves are part of the framework of the law overall in practice. I’m not sure what the point is here.

    Speakers were chosen from the House from the founding. We can predict (and for such predictions and a $1, we will have a $1) what the people will think if we suddenly change course. It is not out the realm of the possible that people would be angry if a body they are led to believe will be run by someone they voted for is suddenly not.

    I myself noted that it was only ‘pretty important’ and yes, other parts of the unwritten constitution, such as a vice president presiding at his/her own impeachment trial would upset more people.

  7. Joe says:

    edit: replace “run” by per Wikipedia “a leadership position in the majority party and the office-holder actively works to set that party’s legislative agenda; the office is therefore endowed with considerable political power”