Powell v. McCormack (1969)

Key Takeaway:

This case is a follow-up to Baker v. Carr and applies the formula for deciding whether a case is a political question.  Chief Justice Warren also explains the difference between subject matter jurisdiction and nonjusticiability.

Key Quotes:

“As we pointed out in Baker v. Carr, there is a significant difference between determining whether a federal court has ‘jurisdiction of the subject matter’ and determining whether a cause over which a court has subject matter jurisdiction is ‘justiciable.’ ”

“In deciding generally whether a claim is justiciable, a court must determine whether ‘the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.’ ”

POWELL V. MCCORMACK

Supreme Court of the United States, 1969

395 U.S. 486

Mr. Chief Justice WARREN delivered the opinion of the Court.

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V.

SUBJECT MATTER JURISDICTION.

 As we pointed out in Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699, 7 L.Ed.2d 663 (1962), there is a significant difference between determining whether a federal court has ‘jurisdiction of the subject matter’ and determining whether a cause over which a court has subject matter jurisdiction is ‘justiciable.’ The District Court determined that ‘to decide this case on the merits would constitute a clear violation of the doctrine of separation of powers’ and then dismissed the complaint ‘for want of jurisdiction of the subject matter.’ Powell v. McCormack, 266 F.Supp. 354, 359, 360 (D.C.D.C.1967). However, as the Court of Appeals correctly recognized, the doctrine of separation of powers is more properly considered in determining whether the case is ‘justiciable.’ We agree with the unanimous conclusion of the Court of Appeals that the District Court had jurisdiction over the subject matter of this case.³³ However, for reasons set forth in Part VI, infra, we disagree with the Court of Appeals’ conclusion that this case is not justiciable.

 In Baker v. Carr, supra, we noted that a federal district court lacks jurisdiction over the subject matter (1) if the cause does not ‘arise under’ the Federal Constitution, laws, or treaties (or fall within one of the other enumerated categories of Art. III); or (2) if it is not a ‘case or controversy’ within the meaning of that phrase in Art. III; or (3) if the cause is not one described by any jurisdictional statute. And, as in Baker v. Carr, supra, our determination (see Part VI, B(1) infra) that this cause presents no non-justiciable ‘political question’ disposes of respondents’ contentions³⁴ that this cause is not a ‘case or controversy.’³⁵

Respondents first contend that this is not a case ‘arising under’ the Constitution within the meaning of Art. III. They emphasize that Art. I, s 5, assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behavior. Respondents also note that under Art. I, s 3, the Senate has the ‘sole power’ to try all impeachments. Respondents argue that these delegations (to ‘judge,’ to ‘punish,’ and to ‘try’) to the Legislative Branch are explicit grants of ‘judicial power’ to the Congress and constitute specific exceptions to the general mandate of Art. III that the ‘judicial power’ shall be vested in the federal courts. Thus, respondents maintain, the ‘power conferred on the courts by article III does not authorize this Court to do anything more than declare its lack of jurisdiction to proceed.’³⁶

 We reject this contention. Article III, s 1, provides that the ‘judicial Power shall be vested in one supreme Court, and in such inferior Courts as the Congress may establish.’ Further, s 2 mandates that the ‘judicial Power shall extend to all Cases arising under this Constitution.’ It has long been held that a suit ‘arises under’ the Constitution if a petitioner’s claim ‘will be sustained if the Constitution (is) given one construction and will be defeated if (it is) given another.’³⁷ Bell v. Hood, 327 U.S. 678, 685, 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946). See King County v. Seattle School District No. 1, 263 U.S. 361, 363—364, 44 S.Ct. 127, 127—128, 68 L.Ed. 339 (1923). Cf. Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824). See generally C. Wright, Federal Courts 48—52 (1963). Thus, this case clearly is one ‘arising under’ the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners’ failure to state a claim based on federal law.

Respondents next contend that the Court of Appeals erred in ruling that petitioners’ suit is authorized by a jurisdictional statute, i.e., 28 U.S.C. s 1331(a) Section 1331(a) provides that district courts shall have jurisdiction in ‘all civil actions wherein the matter in controversy arises under the Constitution.’ Respondents urge that even though a case may ‘arise under the Constitution’ for purposes of Art. III, it does not necessarily ‘arise under the Constitution’ for purposes of s 1331(a). Although they recognize there is little legislative history concerning the enactment of s 1331(a), respondents argue that the history of the period when the section was first enacted indicates that the drafters did not intend to include suits questioning the exclusion of Congressmen in this grant of ‘federal question’ jurisdiction.

Respondents claim that the passage of the Force Act³⁸ in 1870 lends support to their interpretation of the intended scope of s 1331. 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.

 We have noted that the grant of jurisdiction in s 1331(a), while made in the language used in Art. III, is not in all respects co-extensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U.S. 241, 246, 88 S.Ct. 391, 394, 19 L.Ed.2d 444, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal ‘Question’ in the District Courts, 53 Col.L.Rev. 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 644—645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913).

 As respondents recognize, there is nothing in the wording or legislative history of s 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 s 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. See 28 U.S.C. s 1344. Further, the Act was passed five years before the original version of s 1331 was enacted. While it might be inferred that Congress intended to give each House the exclusive power to decide congressional election challenges,³⁹ there is absolutely no indication that the passage of this Act evidences an intention to impose other restrictions on the broad grant of jurisdiction in s 1331.

VI.

JUSTICIABILITY.

Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a ‘political question’—that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.

1. General Considerations.

 In deciding generally whether a claim is justiciable, a court must determine whether ‘the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.’ Baker v. Carr, supra, at 198, 82 S.Ct. at 700. Respondents do not 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. It is undisputed that he met those requirements and that he was nevertheless excluded.

Respondents do maintain, however, that this case is not justiciable because, they assert, it is impossible for a federal court to ‘mold effective relief for resolving this case.’ Respondents emphasize that petitioners asked for coercive relief against the officers of the House, and, they contend, federal courts cannot issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts. Respondents rely primarily on the Speech or Debate Clause to support this contention.

 We need express no opinion about the appropriateness of coercive relief in this case, for petitioners sought a declaratory judgment, a form of relief the District Court could have issued. The Declaratory Judgment Act, 28 U.S.C. s 2201, provides that a district court may ‘declare the rights of any interested party whether or not further relief is or could be sought.’ The availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers of America v. Mitchell, 330 U.S. 75, 93, 67 S.Ct. 556, 566, 91 L.Ed. 754 (1947); 6A J. Moore, Federal Practice 57.08(3) (2d ed. 1966); cf. United States v. California, 332 U.S. 19, 25—26, 67 S.Ct. 1658, 1661—1662, 91 L.Ed. 1889 (1947). We thus conclude that in terms of the general criteria of justiciability, this case is justiciable.

1. Political Question Doctrine.
2. Textually Demonstrable Constitutional Commitment.

 Respondents maintain that even if this case is otherwise justiciable, it presents only a political question. It is well established that the federal courts will not adjudicate political questions. See, e.g., Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726 (1918). In Baker v. Carr, supra, we noted that political questions are not justiciable primarily because of the separation of powers within the Federal Government. After reviewing our decisions in this area, we concluded that on the surface of any case held to involve a political question was at least one of the following formulations:

‘a textually demonstrable constitutional commitment of the issue to a co-ordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.’ 369 U.S., at 217, 82 S.Ct., at 710.

 Respondents’ first contention is that this case presents a political question because under Art. I, s 5, there has been a ‘textually demonstrable constitutional commitment’ to the House of the ‘adjudicatory power’ to determine Powell’s qualifications. Thus it is argued that the House, and the House alone, has power to determine who is qualified to be a member.⁴⁰

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, s 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 s 5, and, they argue, the House may determine which are the qualifications necessary for membership. 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.

If examination of s 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for membership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution,⁴¹ further consideration would be necessary to determine whether any of the other formulations of the political question doctrine are ‘inextricable from the case at bar.’⁴² Baker v. Carr, supra, at 217, 82 S.Ct. at 710.

In other words, whether there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department’ of government and what is the scope of such commitment are questions we must resolve for the first time in this case.⁴³ For, as we pointed out in Baker v. Carr, supra, ‘(d)eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.’ Id., at 211, 82 S.Ct. at 706.

 In order to determine the scope of any ‘textual commitment’ under Art. I, s 5, we necessarily must determine the meaning of the phrase to ‘be the Judge of the Qualifications of its own Members.’ Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period; and early congressional applications of Art. I, s 5, support their construction of the section. 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. 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. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct and that the Constitution leaves the House⁴⁴ without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

1. The Pre-Convention Precedents.

Since our rejection of respondents’ interpretation of s 5 results in significant measure from a disagreement with their historical analysis, we must consider the relevant historical antecedents in considerable detail. As do respondents, we begin with the English and colonial precedents.

The earliest English exclusion precedent appears to be a declaration by the House of Commons in 1553 ‘that Alex. Nowell, being Prebendary (i.e., a clergyman) in Westminster, and thereby having voice in the Convocation House, cannot be a member of this House.’ J. Tanner, Tudor Constitutional Documents: A.D. 1485—1603, p. 596 (2d ed. 1930). This decision, however, was consistent with a long-established tradition that clergy who participated in their own representative assemblies or convocations were ineligible for membership in the House of Commons.⁴⁵ See 1 E. Porritt, The Unreformed House of Commons 125 (1963); T. Taswell-Langmead’s English Constitutional History 142—143 (11th ed. T. Plucknett 1960). The traditional ineligibility of clergymen was recognized as a standing incapacity.⁴⁶ See 1 W. Blackstone’s Commentaries. Nowell’s exclusion, therefore, is irrelevant to the present case, for petitioners concede—and we agree—that if Powell had not met one of the standing qualifications set forth in the Constitution, he could have been excluded under Art. I, s 5. The earliest colonial exclusions also fail to support respondents’ theory.⁴⁷

Respondents’ remaining 16th and 17th century English precedents all are cases of expulsion, although some were for misdeeds not encompassed within recognized standing incapacities existing either at the time of the expulsions or at the time the Constitution was drafted in 1787.⁴⁸ Although these early expulsion orders occasionally contained statements suggesting that the individual expelled was thereafter ineligible for re-election, at least for the duration of the Parliament from which he was expelled,⁴⁹ there is no indication that any were re-elected and thereafter excluded. Respondents’ colonial precedents during this period follow a similar pattern.⁵⁰

Apparently the re-election of an expelled member first occurred in 1712. The House of Commons had expelled Robert Walpole for receiving kickbacks for contracts relating to ‘foraging the Troops,’ 17 H.C.Jur. 28, and committed him to the Tower. Nevertheless, two months later he was re-elected. The House thereupon resolved ‘(t)hat Robert Walpole, Esquire, having been, this Session of Parliament, committed a Prisoner to the Tower of London, and expelled (from) this House, is, incapable of being elected a Member to serve in this present Parliament.’ Id., at 128. (Second emphasis added.) A new election was ordered, and Walpole was not re-elected. At least two similar exclusions after an initial expulsion were effected in the American colonies during the first half of the 18th century.⁵¹

Respondents urge that the Walpole case provides strong support for their conclusion that the pre-Convention English and colonial practice was that members-elect could be excluded for their prior misdeeds at the sole discretion of the legislative body to which they had been elected. However, this conclusion overlooks an important limiting characteristic of the Walpole case and of both the colonial exclusion cases on which respondents rely: the excluded member had been previously expelled. Moreover, Walpole was excluded only for the remainder of the Parliament from which he had been expelled. ‘The theory seems to have been that expulsion lasted as long as the parliament.’ Taswell-Langmead, supra, at 584, n. 99. Accord, 1 W. Blackstone’s Commentaries. 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.e., 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. M. Clarke, Parliamentary Privilege in the American Colonies 196—202 (1943).⁵² Clearly, however, none of these cases supports respondents’ contention that by the 18th century the English Parliament and colonial assemblies had assumed absolute discretion to exclude any member-elect they deemed unfit to serve. Rather, they seem to demonstrate that a member could be excluded only if he had first been expelled.

Even if these cases could be construed to support respondents’ contention, their precedential value was nullified prior to the Constitutional Convention. By 1782, after a long struggle, the arbitrary exercise of the power to exclude was unequivocally repudiated by a House of Commons resolution which ended the most notorious English election dispute of the 18th century—the John Wilkes case. While serving as a member of Parliament in 1763, Wilkes published an attack on a recent peace treaty with France, calling it a product of bribery and condemning the Crown’s ministers as “the tools of despotism and corruption.” R. Postgate, That Devil Wilkes 53 (1929). Wilkes and others who were involved with the publication in which the attack appeared were arrested.⁵³ Prior to Wilkes’ trial, the House of Commons expelled him for publishing ‘a false, scandalous, and seditious libel.’ 15 Parl.Hist.Eng. 1393 (1764). Wilkes then fled to France and was subsequently sentenced to exile. 9 L. Gipson, The British Empire Before the American Revolution 37 (1956).

Wilkes returned to England in 1768, the same year in which the Parliament from which he had been expelled was dissolved. He was elected to the next Parliament, and he then surrendered himself to the Court of King’s Bench. Wilkes was convicted of seditious libel and sentenced to 22 months’ imprisonment. The new Parliament declared him ineligible for membership and ordered that he be ‘expelled this House.’ 16 Parl.Hist.Eng. 545 (1769). Although Wilkes was re-elected to fill the vacant seat three times, each time the same Parliament declared him ineligible and refused to seat him. See 1 Gipson, supra, at 207—215.⁵⁴

Wilkes was released from prison in 1770 and was again elected to Parliament in 1774. For the next several years, he unsuccessfully campaigned to have the resolutions expelling him and declaring him incapable of re-election expunged from the record. Finally, in 1782, the House of Commons voted to expunge them, resolving that the prior House actions were ‘subversive of the rights of the whole body of electors of this kingdom.’ 22 Parl.Hist.Eng. 1411 (1782).

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 qualifications were ‘not occasional but fixed.’ 16 Parl.Hist.Eng. 589, 590 (1769). Certainly English practice did not support, nor had it ever supported, respondents’ assertion that the power to judge qualifications was generally understood to encompass the right to exclude members-elect for general misconduct not within standing qualifications. With the repudiation in 1782 of the only two precedents for excluding a member-elect who had been previously expelled,⁵⁵ it appears that the House of Commons also repudiated any ‘control over the eligibility of candidates, except in the administration of the laws which define their (standing) qualifications.’ T. May’s Parliamentary Practice 66 (13th ed. T. Webster 1924). See Taswell-Langmead, supra, at 585.⁵⁶

The resolution of the Wilkes case similarly undermined the precedential value of the earlier colonial exclusions, for the principles upon which they had been based were repudiated by the very body the colonial assemblies sought to imitate and whose precedents they generally followed. See Clarke, supra, at 54, 59—60, 196. Thus, in 1784 the Council of Censors of the Pennsylvania Assembly⁵⁷ denounced the prior expulsion of an unnamed assemblyman, ruling that his expulsion had not been effected in conformity with the recently enacted Pennsylvania Constitution.⁵⁸ In the course of its report, the Council denounced by name the Parliamentary exclusions of both Walpole and Wilkes, stating that they ‘reflected dishonor on none but the authors of these violences.’ Pennsylvania Convention Proceedings: 1776 and 1790, p. 89 (1825).

Wilkes’ struggle and his ultimate victory had a significant impact in the American colonies. His advocacy of libertarian causes⁵⁹ and his pursuit of the right to be seated in Parliament became a cause ce lebre for the colonists. ‘(T)he cry of ‘Wilkes and Liberty’ echoed loudly across the Atlantic Ocean as wide publicity was given to every step of Wolkes’s public career in the colonial press. The reaction in America took on significant proportions. Colonials tended to identify their cause with that of Wilkes. They saw him as a popular hero and a martyr to the struggle for liberty. They named towns, counties, and even children in his honour.’ 11 Gipson, supra, at 222.⁶⁰ It is within this historical context that we must examine the Convention debates in 1787, just five years after Wilkes’ final victory.

1. Convention Debates.

Relying heavily on Charles Warren’s analysis⁶¹ of the Convention debates, petitioners argue that the proceedings manifest the Framers’ unequivocal intention to deny either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution. We do not completely agree, for the debates are subject to other interpretations. However, we have concluded that the records of the debates, viewed in the context of the bitter struggle for the right to freely choose representatives which had recently concluded in England and in light of the distinction the Framers made between the power to expel and the power to exclude, indicate that petitioners’ ultimate conclusion is correct.

The Convention opened in late May 1787. By the end of July, the delegates adopted, with a minimum of debate, age requirements for membership in both the Senate and the House. The Convention then appointed a Committee of Detail to draft a constitution incorporating these and other resolutions adopted during the preceding months. Two days after the Committee was appointed, George Mason, of Virginia, moved that the Committee consider a clause “requiring certain qualifications of landed property & citizenship” and disqualifying from membership in Congress persons who had unsettled accounts or who were indebted to the United States. 2 Farrand 121. A vigorous debate ensued. Charles Pinckney and General Charles C. Pinckney, both of South Carolina, moved to extend these incapacities to both the judicial and executive branches of the new government. But John Dickinson, of Delaware, opposed the inclusion of any statement of qualifications in the Constitution. He argued that it would be ‘impossible to make a compleat one, and a partial one would by implication tie up the hands of the Legislature from supplying the omissions.’ Id., at 123.⁶² Dickinson’s argument was rejected; and, after eliminating the disqualification of debtors and the limitation to ‘landed’ property, the Convention adopted Mason’s proposal to instruct the Committee of Detail to draft a property qualification. Id., at 116—117.

The Committee reported in early August, proposing no change in the age requirement; however, it did recommend adding citizenship and residency requirements for membership. After first debating what the precise requirements should be, on August 8, 1787, the delegates unanimously adopted the three qualifications embodied in Art. I, s 2. Id., at 213.⁶³

On August 10, the Convention considered the Committee of Detail’s proposal that the ‘Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.’ Id., at 179. The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. 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. It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of (a weaker) faction.’ Id., at 249—250.⁶⁴

Significantly, Madison’s argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications. The parallel between Madison’s arguments and those made in Wilkes’ behalf is striking.⁶⁵

In view of what followed Madison’s speech, it appears that on this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the ‘indisputable right (of the people) to return whom they thought proper’⁶⁶ to the legislature. Oliver Ellsworth, of Connecticut, noted that a legislative power to establish property qualifications was exceptional and ‘dangerous because it would be much more liable to abuse.’ Id., at 250. Gouverneur Morris then moved to strike ‘with regard to property’ from the Committee’s proposal. 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. They had made the changes in both cases subservient to their own views, or to the views of political or Religious parties.’ Ibid.⁶⁸ Shortly thereafter, the Convention rejected both Gouverneur Morris’ motion and the Committee’s proposal. Later the same day, the Convention adopted without debate the provision authorizing each House to be ‘the judge of the qualifications of its own members.’ Id., at 254.

One other decision made the same day is very important to determining the meaning of Art. I, s 5. When the delegates reached the Committee of Detail’s proposal to empower each House to expel its members, Madison ‘observed that the right of expulsion was too important to be exercised by a bare majority of a quorum: and in emergencies (one) faction might be dangerously abused.’ Id., at 254. He therefore moved that ‘with the concurrence of two-thirds’ be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition. The importance of this decision cannot be over-emphasized. None of the parties to this suit disputes that prior to 1787 the legislative powers to judge qualifications and to expel were exercised by a majority vote. Indeed, without exception, the English and colonial antecedents to Art. I, s 5, cls. 1 and 2, support this conclusion. Thus, the Convention’s decision to increase the vote required to expel, because that power was ‘too important to be exercised by a bare majority,’ while at the same time not similarly restricting the power to judge qualifications, is compelling evidence that they considered the latter already limited by the standing qualifications previously adopted.⁶⁹

Respondents urge, however, that these events must be considered in light of what they regard as a very significant change made in Art. I, s 2, cl. 2, by the Committee of Style. 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. Nevertheless, they speculate that this particular change was designed to make the provision correspond to the form used by Blackstone in listing the ‘standing incapacities’ for membership in the House of Commons. See 1 W. Blackstone’s Commentaries. Blackstone, who was an apologist for the anti-Wilkes forces in Parliament, ⁷⁰ had added to his Commentaries after Wilkes’ exclusion the assertion that individuals who were not ineligible for the Commons W. Blackstone’s Commentaries. be denied their seat if the Commons deemed them unfit for other reasons.⁷¹ Since Blackstone’s Commentaries was widely circulated in the Colonies, respondents further speculate that the Committee of Style rephrased the qualifications provision in the negative to clarify the delegates’ intention ‘only to prescribe the standing incapacities without imposing any other limit on the historic power of each house to judge qualifications on a case by case basis.’⁷²

Respondents’ argument is inherently weak, however, because it assumes that legislative bodies historically possessed the power to judge qualifications on a case-by-case basis. As noted above, the basis for that conclusion was the Walpole and Wilkes cases, which, by the time of the Convention, had been denounced by the House of Commons and repudiated by at least one State government. Moreover, respondents’ argument misrepresents the function of the Committee of Style. It was appointed only ‘to revise the stile of and arrange the articles which had been agreed to.’ 2 Farrand 553. ‘(T)he Committee had no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so; and certainly the Convention had no belief that any important change was, in fact, made in the provisions as to qualifications adopted by it on August 10.’⁷³

Petitioners also argue that the post-Convention debates over the Constitution’s ratification support their interpretation of s 5. For example, they emphasize Hamilton’s reply to the antifed-eralist charge that the new Constitution favored the wealthy and well-born:

‘The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms on part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.’

The Federalist Papers 371 (Mentor ed. 1961). (Emphasis in last sentence added.)

Madison had expressed similar views in an earlier essay,⁷⁴ and his arguments at the Convention leave no doubt about his agreement with Hamilton on this issue.

Respondents counter that Hamilton was actually addressing himself to criticism of Art. I, s 4, which authorizes Congress to regulate the times, places, and manner of electing members of Congress. They note that prominent antifederalists had argued that this power could be used to ‘confer on the rich and well-born, all honours.’ Brutus No. IV, N.Y. Journal, Nov. 29, 1787, p. 7. (Emphasis in original.) Respondents’ contention, however, ignores Hamilton’s express reliance on the immutability of the qualifications set forth in the Constitution.⁷⁵

The debates at the state conventions also demonstrate the Framers’ understanding that the qualifications for members of Congress had been fixed in the Constitution. Before the New York convention, for example, Hamilton emphasized: ‘(T)he true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.’ 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as Elliot’s Debates).⁷⁶ In Virginia, where the Federalists faced powerful opposition by advocates of popular democracy, Wilson Carey Nicholas, a future member of both the House and Senate and later Governor of the State, met the arguments that the new Constitution violated democratic principles with the following interpretation of Art. I, s 2, cl. 2, as it respects the qualifications of the elected: ‘It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state.’ 3 Elliot’s Debates 8.

1. Post-Ratification.

As clear as these statements appear, respondents dismiss them as ‘general statements directed to other issues.’⁷⁷ They suggest that far more relevant is Congress’ own understanding of its power to judge qualifications as manifested in post-ratification exclusion cases. Unquestionably, both the House and the Senate have excluded memberselect for reasons other than their failure to meet the Constitution’s standing qualifications. For almost the first 100 years of its existence, however, Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution.

Congress was first confronted with the issue in 1807,⁷⁸ when the eligibility of William McCreery was challenged because he did not meet additional residency requirements imposed by the State of Maryland. In recommending that he be seated, the House Committee of Elections reasoned:

‘The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules.’ 17 annals of Cong. 871 (1807).

Lest there be any misunderstanding of the basis for the committee’s recommendation, during the ensuing debate the chairman explained the principles by which the committee was governed:

‘The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them. Congress, by the Federal Constitution, are not authorized to prescribe the qualifications of their own members, but they are authorized to judge of their qualifications; in doing so, however, they must be governed by the rules prescribed by the Federal Constitution, and by them only. These are the principles on which the Election Committee have made up their report, and upon which their resolution is founded.’ Id., at 872.

The chairman emphasized that the committee’s narrow construction of the power of the House to judge qualifications was compelled by the ‘fundamental principle in a free government,’ id., at 873, that restrictions upon the people to choose their own representatives must be limited to those ‘absolutely necessary for the safety of the society.’ Id., at 874. At the conclusion of a lengthy debate, which tended to center on the more narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution, the House agreed by a vote of 89 to 18 to seat Congressman McCreery. Id., at 1237. See 1 A. Hinds, Precedents of the House of Representatives of the United States s 414 (1907) (hereinafter cited as Hinds).

There was no significant challenge to these principles for the next several decades.⁷⁹ They came under heavy attack, however, ‘during the stress of civil war (but initially) the House of Representatives declined to exercise the power (to exclude), even under circumstances of great provocation.’⁸⁰ Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., s 12, p. 7 (1967). The abandonment of such restraint, however, was among the casualties of the general upheaval produced in war’s wake. In 1868, the House voted for the first time in its history to exclude a member-elect. It refused to seat two duly elected representatives for giving aid and comfort to the Confederacy. See 1 Hinds ss 449—451.⁸¹ ‘This change was produced by the North’s bitter enmity toward those who failed to support the Union cause during the war, and was effected by the Radical Republican domination of Congress. It was a shift brought about by the naked urgency of power and was given little doctrinal support.’ Comment, Legislative Exclusion: Julian Bond and Adam Clayton Powell, 35 U.Chi.L.Rev. 151, 157 (1967).⁸² From that time until the present, congressional practice has been erratic;⁸³ and on the few occasions when a member-elect was excluded although he met all the qualifications set forth in the Constitution, there were frequently vigorous dissents.⁸⁴ Even the annotations to the official manual of procedure for the 90th Congress manifest doubt as to the House’s power to exclude a member-elect who has met the constitutionally prescribed qualifications. See Rules of the House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess., s 12, pp. 7—8 (1967).

 Had these congressional exclusion precedents been more consistent, their precedential value still would be quite limited. See Note, The Power of a House of Congress to Judge the Qualifications of its Members, 81 Harv.L.Rev. 673, 679 (1968).⁸⁵ That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date. Particularly in view of the Congress’ own doubts in those few cases where it did exclude members-elect, we are not inclined to give its precedents controlling weight. The relevancy of prior exclusion cases is limited largely to the insight they afford in correctly ascertaining the draftsmen’s intent. Obviously, therefore, the precedential value of these cases tends to increase in proportion to their proximity to the Convention in 1787. See Myers v. United States, 272 U.S. 52, 175, 47 S.Ct. 21, 45, 71 L.Ed. 160 (1926). And, what evidence we have of Congress’ early understanding confirms our conclusion that the House is without power to exclude any member-elect who meets the Constitution’s requirements for membership.

1. Conclusion.

 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. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning, borne out in the Wilkes case and some of Congress’ own post-Civil War exclusion cases, against ‘vesting an improper & dangerous power in the Legislature.’ 2 Farrand 249. Moreover, it would effectively nullify the Convention’s decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

 For these reasons, we have concluded that Art. I, s 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.

2. Other Considerations.

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 Nor are any of the other formulations of a political question ‘inextricable from the case at bar.’ Baker v. Carr, supra, at 217, 82 S.Ct. at 710. Petitioners seek a determination that the House was without power to exclude Powell from the 90th Congress, which, we have seen, requires an interpretation of the Constitution—a determination for which clearly there are ‘judicially manageable standards.’ Finally, a judicial resolution of petitioners’ claim will not result in ‘multifarious pronouncements by various departments on one question.’ For, as we noted in Baker v. Carr, supra, at 211, 82 S.Ct., at 706 it is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803). Thus, we conclude that petitioners’ claim is not barred by the political question doctrine, and, having determined that the claim is otherwise generally justiciable, we hold that the case is justiciable.

VII.

CONCLUSION.

To summarize, we have determined the following: (1) This case has not been mooted by Powell’s seating in the 91st Congress. (2) Although this action should be dismissed against respondent Congressmen, it may be sustained against their agents. (3) The 90th Congress’ denial of membership to Powell cannot be treated as an expulsion. (4) We have jurisdiction over the subject matter of this controversy. (5) The case is justiciable.

 Further, analysis of the ‘textual commitment’ under Art. I, s 5 (see Part VI, B (1)), has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

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It is so ordered.