U.S. Supreme Court Powell v. McCormack, 395
U.S. 486 (1969) Powell v. McCormack No. 138 Argued April 21, 1969 Decided June 16, 1969 395
U.S. 486 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus Petitioner Powell, who had been duly elected to serve in the
House of Representatives for the 90th Congress, was denied his seat
by the adoption of House Resolution No. 278 which the Speaker had
ruled was on the issue of excluding Powell and could be decided by
majority vote. The House's action followed charges that Powell had
misappropriated public funds and abused the process of the New York
courts. Powell and certain voters of his congressional district
thereafter brought suit in the District Court for injunctive,
mandatory, and declaratory relief against respondents, certain
named House members, the Speaker, Clerk, Sergeant at Arms, and
Doorkeeper of the House, alleging that the Resolution barring his
seating violated Art. I, § 2, cl. 1, of the Constitution as
contrary to the mandate that House members be elected by the people
of each State, and cl. 2, which sets forth the qualifications for
membership of age, citizenship, and residence (all concededly met
by Powell), which they claimed were exclusive. The complaint
alleged that the House Clerk threatened to refuse to perform the
service to which Powell as a duly elected Congressman was entitled;
that the Sergeant at Arms refused to pay Powell's salary, and that
the Doorkeeper threatened to deny Powell admission to the House
chamber. The District Court granted respondents' motion to dismiss
the complaint "for want of jurisdiction of the subject matter." The
Court of Appeals affirmed on somewhat different grounds. While the
case was pending in this Court, the 90th Congress ended and Powell
was elected to and seated by the 91st Congress. Respondents contend
that (1) the case is moot; (2) the Speech or Debate Clause (Art. I,
§ 6) forecloses judicial review; (3) the decision to exclude Powell
is supported by the expulsion power in Art. I, § 5, under which the
House, which "shall be the Judge of the . . . Qualifications of its
own embers," can by a two-thirds vote (exceeded here) expel a
member for any reason at all; (4) the Court lacks subject matter
jurisdiction over this litigation, or, alternatively, Page 395 U. S. 487 (5) the litigation is not justiciable under general criteria or
because it involves a political question. Held: 1. The case has not been mooted by Powell's seating in the 91st
Congress, since his claim for back salary remains a viable issue.
Pp. 395 U. S.
495 -500.

															(a) Powell's averments as to declaratory relief are sufficient. Alejandrino v. Quezon, 271 U. S. 528 ,
distinguished. Pp. 395 U. S.
496 -499.

															(b) The mootness of Powell's claim to a seat in the 90th
Congress does not affect the viability of his back salary claim
with respect to the term for which he was excluded. Bond v.
Floyd, 385 U. S. 116 . Pp. 395 U. S.
499 -500.

															2. Although the Speech or Debate Clause bars action against
respondent Congressmen, it does not bar action against the other
respondents, who are legislative employees charged with
unconstitutional activity, Kilbourn v. Thompson, 103 U. S. 168 ; Dombrowski v. Eastland, 387 U. S. 82 , and
the fact that House employees are acting pursuant to express orders
of the House does not preclude judicial review of the
constitutionality of the underlying legislative decision. Pp. 395 U. S.
501 -506.

															3. House Resolution No. 278 was an exclusion proceeding, and
cannot be treated as an expulsion proceeding (which House members
have viewed as not applying to pre-election misconduct). This Court
will not speculate whether the House would have voted to expel
Powell had it been faced with that question. Pp. 395 U. S.
506 -512.

															4. The Court has subject matter jurisdiction over petitioners'
action. Pp. 395 U. S.
512 -516.

															(a) The case is one "arising under" the Constitution within the
meaning of Art. III, since petitioners' claims "will be sustained
if the Constitution . . . [is] given one construction and will be
defeated if it [is] given another." Bell v. Hood, 327 U. S. 678 . Pp. 395 U. S.
513 -514.

															(b) The district courts are given a broad grant of jurisdiction
by 28 U.S.C. § 1331(a), over "all civil actions wherein the matter
in controversy . . . arises under the Constitution . . . ," and,
while that grant is not entirely coextensive with Art. III, there
is no indication that § 1331(a) was intended to foreclose federal
courts from entertaining suits involving the seating of
Congressmen. Pp. 395 U. S.
514 -516.

															5. This litigation is justiciable because the claim presented
and the relief sought can be judicially resolved. Pp. 395 U. S.
516 -518.

															(a) Petitioners' claim does not lack justiciability on the
ground that the House's duty cannot be judicially determined,
since, if Page 395 U. S. 488 petitioners are correct, the House had a duty to seat Powell
once it determined that he met the standing qualifications set
forth in the Constitution. P. 395 U. S.
517 .

															(b) The relief sought is susceptible of judicial resolution,
since, regardless of the appropriateness of a coercive remedy
against House personnel (an issue not here decided), declaratory
relief is independently available. Pp. 395 U. S.
517 -518.

															6. The case does not involve a "political question," which,
under the separation of powers doctrine, would not be justiciable.
Pp. 395 U. S.
518 -549.

															(a) The Court's examination of relevant historical materials
shows at most that Congress' power under Art. I, § 5, to judge the
"Qualifications of its Members" is a "textually demonstrable
constitutional commitment . . . to [that] co-ordinate political
department of government" ( Baker v. Carr, 369 U.
S. 186 , 369 U. S. 217 )
to judge only standing qualifications which are expressly set forth
in the Constitution; hence, the House has no power to exclude a
member-elect who meets the Constitution's membership requirements.
Pp. 395 U. S.
518 -548.

															(b) The case does not present a political question in the sense,
also urged by respondents, that it would entail a "potentially
embarrassing confrontation between coordinate branches" of the
Government, since our system of government requires federal courts
on occasion to interpret the Constitution differently from other
branches. Pp. 395 U. S.
548 -549.

															7. In judging the qualifications of its members under Art. I, §
5, Congress is limited to the standing qualifications expressly
prescribed by the Constitution. P. 395 U. S.
550 .

															129 U.S.App.D.C. 354, 395 F.2d 577, affirmed in part, reversed
in part, and remanded to the District Court for entry of a
declaratory judgment and for further proceedings. Page 395 U. S. 489 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

															In November, 1966, petitioner Adam Clayton Powell, Jr., was duly
elected from the 18th Congressional District of New York to serve
in the United States House of Representatives for the 90th
Congress. However, pursuant to a House resolution, he was not
permitted to take his seat. Powell (and some of the voters of his
district) then filed suit in Federal District Court, claiming that
the House could exclude him only if it found he failed to meet the
standing requirements of age, citizenship, and residence contained
in Art. I, § 2, of the Constitution -- requirements the House
specifically found Powell met -- and thus had excluded him
unconstitutionally. The District Court dismissed petitioners'
complaint "for want of jurisdiction of the subject matter." A panel
of the Court of Appeals affirmed the dismissal, although on
somewhat different grounds, each judge filing a separate opinion.
We have determined that it was error to dismiss the complaint, and
that petitioner Powell is entitled to a declaratory judgment that
he was unlawfully excluded from the 90th Congress. I FACTS During the 89th Congress, a Special Subcommittee on Contracts of
the Committee on House Administration conducted an investigation
into the expenditures of the Committee on Education and Labor, of
which petitioner Page 395 U. S. 490 Adam Clayton Powell, Jr., was chairman. The Special Subcommittee
issued a report concluding that Powell and certain staff employees
had deceived the House authorities as to travel expenses. The
report also indicated there was strong evidence that certain
illegal salary payments had been made to Powell's wife at his
direction. See H.R.Rep. No. 2349, 89th Cong., 2d Sess.,
6-7 (1966). No formal action was taken during the 89th Congress.
However, prior to the organization of the 90th Congress, the
Democratic members-elect met in caucus and voted to remove Powell
as chairman of the Committee on Education and Labor. See H.R.Rep. No. 27, 90th Cong., 1st Sess., 1-2 (1967).

															When the 90th Congress met to organize in January, 1967, Powell
was asked to step aside while the oath was administered to the
other members-elect. Following the administration of the oath to
the remaining members, the House discussed the procedure to be
followed in determining whether Powell was eligible to take his
seat. After some debate, by a vote of 363 to 65, the House adopted
House Resolution No. 1, which provided that the Speaker appoint a
Select Committee to determine Powell's eligibility. 113 Cong.Rec.
26-27. Although the resolution prohibited Powell from taking his
seat until the House acted on the Select Committee's report, it did
provide that he should receive all the pay and allowances due a
member during the period.

															The Select Committee, composed of nine lawyer-members, issued an
invitation to Powell to testify before the Committee. The
invitation letter stated that the scope of the testimony and
investigation would include Powell's qualifications as to age,
citizenship, and residency; his involvement in a civil suit (in
which he had been held in contempt), and "[m]atters of . . .
alleged official misconduct since January 3, 1961." See Hearings on Page 395 U. S. 491 H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No.
1, 90th Cong., 1st Sess., 5 (1967) (hereinafter Hearings). Powell
appeared at the Committee hearing held on February 8, 1967. After
the Committee denied in part Powell's request that certain
adversary-type procedures be followed, [ Footnote 1 ] Powell testified. He would, however, give
information relating only to his age, citizenship, and residency;
upon the advice of counsel, he refused to answer other
questions.

															On February 10, 1967, the Select Committee issued another
invitation to Powell. In the letter, the Select Committee informed
Powell that its responsibility under the House Resolution extended
to determining not only whether he met the standing qualifications
of Art. I, § 2, but also to

															"inquir[ing] into the question of whether you should be punished
or expelled pursuant to the powers granted . . . the House under
Article I, Section 5, . . . of the Constitution. In other words,
the Select Committee is of the opinion that, at the conclusion of
the present inquiry, it has authority to report back to the House
recommendations with respect to . . . seating, expulsion or other
punishment." See Hearings 110. Powell did Page 395 U. S. 492 not appear at the next hearing, held February 14, 1967. However,
his attorneys were present, and they informed the Committee that
Powell would not testify about matters other than his eligibility
under the standing qualifications of Art. I, § 2. Powell's
attorneys reasserted Powell's contention that the standing
qualifications were the exclusive requirements for membership, and
they further urged that punishment or expulsion was not possible
until a member had been seated. See Hearings 111-113.

															The Committee held one further hearing at which neither Powell
nor his attorneys were present. Then, on February 23, 1967, the
Committee issued its report, finding that Powell met the standing
qualifications of Art. I, § 2. H.R.Rep. No. 27, 90th Cong., 1st
Sess., 31 (1967). However, the Committee further reported that
Powell had asserted an unwarranted privilege and immunity from the
processes of the courts of New York; that he had wrongfully
diverted House funds for the use of others and himself, and that he
had made false reports on expenditures of foreign currency to the
Committee on House Administration. Id. at 31-32. The
Committee recommended that Powell be sworn and seated as a member
of the 90th Congress, but that he be censured by the House, fined
$40,000, and be deprived of his seniority. Id. at 33.

															The report was presented to the House on March 1, 1967, and the
House debated the Select Committee's proposed resolution. At the
conclusion of the debate, by a vote of 222 to 202 the House
rejected a motion to bring the resolution to a vote. An amendment
to the resolution was then offered; it called for the exclusion of
Powell and a declaration that his seat was vacant. The Speaker
ruled that a majority vote of the House would be sufficient to pass
the resolution if it were so Page 395 U. S. 493 amended. 113 Cong.Rec. 5020. After further debate, the amendment
was adopted by a vote of 248 to 176. Then the House adopted by a
vote of 307 to 116 House Resolution No. 278 in its amended form,
thereby excluding Powell and directing that the Speaker notify the
Governor of New York that the seat was vacant.

															Powell and 13 voters of the 18th Congressional District of New
York subsequently instituted this suit in the United States
District Court for the District of Columbia. Five members of the
House of Representatives were named as defendants individually and
"as representatives of a class of citizens who are presently
serving . . . as members of the House of Representatives." John W.
McCormack was named in his official capacity as Speaker, and the
Clerk of the House of Representatives, the Sergeant at Arms and the
Doorkeeper were named individually and in their official
capacities. The complaint alleged that House Resolution No. 278
violated the Constitution, specifically Art. I, § 2, cl. 1, because
the resolution was inconsistent with the mandate that the members
of the House shall be elected by the people of each State, and Art.
I, § 2, cl. 2, which, petitioners alleged, sets forth the exclusive
qualifications for membership. [ Footnote 2 ] The complaint further alleged that the Clerk
of the House threatened to refuse to perform the service for Powell
to which a duly elected Congressman is entitled, that the Sergeant
at Arms refused to pay Powell his salary, and that the Doorkeeper
threatened to deny Powell admission to the House chamber. Page 395 U. S. 494 Petitioners asked that a three-judge court be convened.
[ Footnote 3 ] Further, they
requested that the District Court grant a permanent injunction
restraining respondents from executing the House Resolution, and
enjoining the Speaker from refusing to administer the oath, the
Clerk from refusing to perform the duties due a Representative, the
Sergeant at Arms from refusing to pay Powell his salary, and the
Doorkeeper from refusing to admit Powell to the Chamber. [ Footnote 4 ] The complaint also
requested a declaratory judgment that Powell's exclusion was
unconstitutional.

															The District Court granted respondents' motion to dismiss the
complaint "for want of jurisdiction of the subject matter." Powell v. McCormack, 266 F.
Supp. 354 (D.C. D.C.1967). [ Footnote 5 ] The Court of Appeals for the District of
Columbia Circuit affirmed on somewhat different grounds, with each
judge of the panel filing a separate opinion. Powell v.
McCormack, 129 U.S.App.D.C. 354, 395 F.2d 577 (1968). We
granted certiorari. 393 U.S. 949 (1968). While the case was pending
on our docket, the 90th Congress officially terminated, and the
91st Congress was seated. In November, 1968, Powell was again
elected as the representative of the 18th Congressional District of
New York, and he was seated by the 91st Congress. The resolution
seating Powell also Page 395 U. S. 495 fined him $25,000. See H.R.Res. No. 2, 91st Cong., 1st
Sess., 115 Cong.Rec. H21 (daily ed., January 3, 1969). Respondents
then filed a suggestion of mootness. We postponed further
consideration of this suggestion to a hearing on the merits. 393
U.S. 1060 (1969).

															Respondents press upon us a variety of arguments to support the
court below; they will be considered in the following order. (1)
Events occurring subsequent to the grant of certiorari have
rendered this litigation moot. (2) The Speech or Debate Clause of
the Constitution, Art. I, § 6, insulates respondents' action from
judicial review. (3) The decision to exclude petitioner Powell is
supported by the power granted to the House of Representatives to
expel a member. (4) This Court lacks subject matter jurisdiction
over petitioners' action. (5) Even if subject matter jurisdiction
is present, this litigation is not justiciable either under the
general criteria established by this Court or because a political
question is involved. II MOOTNESS After certiorari was granted, respondents filed a memorandum
suggesting that two events which occurred subsequent to our grant
of certiorari require that the case be dismissed as moot. On
January 3, 1969, the House of Representatives of the 90th Congress
officially terminated, and petitioner Powell was seated as a member
of the 91st Congress. 115 Cong.Rec. H22 (daily ed., January 3,
1969). Respondents insist that the gravamen of petitioners'
complaint was the failure of the 90th Congress to seat petitioner
Powell, and that, since the House of Representatives is not a
continuing body [ Footnote
6 ] Page 395 U. S. 496 and Powell has now been seated, his claims are moot. Petitioners
counter that three issues remain unresolved, and thus this
litigation present a "case or controversy" within the meaning of
Art. III: [ Footnote 7 ] (1)
whether Powell was unconstitutionally deprived of his seniority by
his exclusion from the 90th Congress; (2) whether the resolution of
the 91st Congress imposing as "punishment" a $25,000 fine is a
continuation of respondents' allegedly unconstitutional exclusion, see H.R.Res. No. 2, 91st Cong., 1st Sess., 115 Cong.Rec.
H21 (daily ed., January 3, 1969), and (3) whether Powell is
entitled to salary withheld after his exclusion from the 90th
Congress. We conclude that Powell's claim for back salary remains
viable even though he has been seated in the 91st Congress, and
thus find it unnecessary to determine whether the other issues have
become moot. [ Footnote 8 ]

															Simply stated, a case is moot when the issues presented are no
longer "live" or the parties lack a legally cognizable interest in
the outcome. See E. Borchard, Declaratory Page 395 U. S. 497 Judgments 35-37 (2d ed.1941). Where one of the several issues
presented becomes moot, the remaining live issues supply the
constitutional requirement of a case or controversy. See United
Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 86 -94
(1947); 6A J. Moore, Federal Practice 1157.13 (2d ed.1966). Despite
Powell's obvious and continuing interest in his withheld salary,
respondents insist that Alejandrino v. Quezon, 271 U. S. 528 (1926), leaves us no choice but to dismiss this litigation as moot.
Alejandrino, a duly appointed Senator of the Philippine Islands,
was suspended for one year by a resolution of the Philippine Senate
and deprived of all "prerogatives, privileges and emoluments" for
the period of his suspension. The Supreme Court of the Philippines
refused to enjoin the suspension. By the time the case reached this
Court, the suspension had expired and the Court dismissed as moot
Alejandrino's request that the suspension be enjoined. Then, sua sponte, [ Footnote
9 ] the Court considered whether the possibility that
Alejandrino was entitled to back salary required it "to retain the
case for the purpose of determining whether he [Alejandrino] may
not have a mandamus for this purpose." Id. at 271 U. S. 533 .
Characterizing the issue of Alejandrino's salary as a "mere
incident" to his claim that the suspension was improper, the Court
noted that he had not briefed the salary issue, and that his
request for mandamus did not set out with sufficient clarity the
official or set of officials against whom the mandamus should
issue. Id. at 271 U. S.
533 -534. The Court therefore refused to treat the salary
claim and dismissed the entire action as moot. Page 395 U. S. 498 Respondents believe that Powell's salary claim is also a "mere
incident" to his insistence that he was unconstitutionally excluded
so that we should likewise dismiss this entire action as moot. This
argument fails to grasp that the reason for the dismissal in
Alejandrino was not that Alejandrino's deprivation of salary was
insufficiently substantial to prevent the case from becoming moot,
but rather that his failure to plead sufficient facts to establish
his mandamus claim made it impossible for any court to resolve the
mandamus request. [ Footnote
10 ] By contrast, petitioners' complaint names the official
responsible for the payment of congressional salaries and asks for
both mandamus and an injunction against that official. [ Footnote 11 ]

															Furthermore, even if respondents are correct that petitioners'
averments as to injunctive relief are not sufficiently definite, it
does not follow that this litigation must be dismissed as moot.
Petitioner Powell has not been paid his salary by virtue of an
allegedly unconstitutional House resolution. That claim is still
unresolved, and hotly contested by clearly adverse parties.
Declaratory relief has been requested, a form of relief not
available Page 395 U. S. 499 when Alejandrino was decided. [ Footnote 12 ] A court may grant declaratory
relief even though it chooses not to issue an injunction or
mandamus. See United Public Workers v. Mitchell, supra, at 330 U. S. 93 ; cf. United States v. California, 332 U. S.
19 , 332 U. S. 25 -26
(1947). A declaratory judgment can then be used as a predicate to
further relief, including an injunction. 28 U.S.C. § 2202; see
Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253
F.2d 29 (C.A.2d Cir.1958); United States Lines Co. v.
Shaughnessy, 195 F.2d 385 (C.A.2d Cir.1952). Alejandrino stands only for the proposition that, where
one claim has become moot and the pleadings are insufficient to
determine whether the plaintiff is entitled to another remedy, the
action should be dismissed as moot. [ Footnote 13 ] There is no suggestion that petitioners'
averments as to declaratory relief are insufficient, and Powell's
allegedly unconstitutional deprivation of salary remains
unresolved.

															Respondents further argue that Powell's "wholly incidental and
subordinate" demand for salary is insufficient to prevent this
litigation from becoming moot. They suggest that the "primary and
principal relief" sought was the seating of petitioner Powell in
the 90th Congress, rendering his presumably secondary claims not
worthy of judicial consideration. Bond v. Floyd, 385 U. S. 116 (1966), rejects respondents' theory that the mootness of a
"primary" claim requires a conclusion that all "secondary" claims
are moot. At the Bond oral argument, it was suggested that
the expiration of the session of the Georgia Legislature which
excluded Bond had rendered Page 395 U. S. 500 the case moot. We replied:

															"The State has not pressed this argument, and it could not do
so, because the State has stipulated that, if Bond succeeds on this
appeal, he will receive back salary for the term from which he was
excluded."

															385 U.S. at 385 U. S. 128 ,
n. 4. Bond is not controlling, argue respondents, because
the legislative term from which Bond was excluded did not end until
December 31, 1966, [ Footnote
14 ] and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated, while,
in this case, Powell has been. [ Footnote 15 ] Respondents do not tell us, however, why
these factual distinctions create a legally significant difference
between Bond and this case. We relied in Bond on
the outstanding salary claim, not the facts respondents stress, to
hold that the case was not moot.

															Finally, respondents seem to argue that Powell's proper action
to recover salary is a suit in the Court of Claims, so that, having
brought the wrong action, a dismissal for mootness is appropriate.
The short answer to this argument is that it confuses mootness with
whether Powell has established a right to recover against the
Sergeant at Arms, a question which it is inappropriate to treat at
this stage of the litigation. [ Footnote 16 ] Page 395 U. S. 501 III SPEECH OR DEBATE CLAUSE Respondents assert that the Speech or Debate Clause of the
Constitution, Art. I, § 6, [ Footnote 17 ] is an absolute bar to petitioners' action.
This Court has on four prior occasions -- Dombrowski v.
Eastland, 387 U. S. 82 (1967); United States v. Johnson, 383 U.
S. 169 (1966); Tenney v. Brandhove, 341 U. S. 367 (1951), and Kilbourn v. Thompson, 103 U.
S. 168 (1881) -- been called upon to determine if
allegedly unconstitutional action taken by legislators or
legislative employees is insulated from judicial review by the
Speech or Debate Clause. Both parties insist that their respective
positions find support in these cases, and tender for decision
three distinct issues: (1) whether respondents, in participating in
the exclusion of petitioner Powell, were "acting in the sphere of
legitimate legislative activity," Tenney v. Brandhove,
supra, at 341 U. S. 376 ;
(2) assuming that respondents were so acting, whether the fact that
petitioners seek neither damages from any of the respondents nor a
criminal prosecution lifts the bar of the clause; [ Footnote 18 ] and (3) even if this Page 395 U. S. 502 action may not be maintained against a Congressman, whether
those respondents who are merely employees of the House may plead
the bar of the clause. We find it necessary to treat only the last
of these issues.

															The Speech or Debate Clause, adopted by the Constitutional
Convention without debate or opposition, [ Footnote 19 ] finds its roots in the conflict between
Parliament and the Crown culminating in the Glorious Revolution of
1688 and the English Bill of Rights of 1689. [ Footnote 20 ] Drawing upon this history, we
concluded in United States v. Johnson, supra, at 383 U. S. 181 ,
that the purpose of this clause was "to prevent intimidation [of
legislators] by the executive and accountability before a possibly
hostile Judiciary." Although the clause sprang from a fear of
seditious libel actions instituted by the Crown to punish
unfavorable speeches made in Parliament, [ Footnote 21 ] we have held that it would be a "narrow
view" to confine the protection of the Speech or Debate Clause to
words spoken in debate. Committee reports, resolutions, and the act
of voting are equally covered, as are "things generally done in a
session of the House by one of its members in relation to the
business before it." Kilbourn v. Thompson, supra, at 103 U. S. 204 .
Furthermore, the clause not only provides a Page 395 U. S. 503 defense on the merits, but also protects a legislator from the
burden of defending himself. Dombrowski v. Eastland,
supra, at 387 U. S. 85 ; see Tenney v. Brandhove, supra, at 341 U. S.
377 .

															Our cases make it clear that the legislative immunity created by
the Speech or Debate Clause performs an important function in
representative government. It insures that legislators are free to
represent the interests of their constituents without fear that
they will be later called to task in the courts for that
representation. Thus, in Tenney v. Brandhove, supra, at 341 U. S. 373 ,
the Court quoted the writings of James Wilson as illuminating the
reason for legislative immunity:

															"In order to enable and encourage a representative of the
publick to discharge his publick trust with firmness and success,
it is indispensably necessary that he should enjoy the fullest
liberty of speech, and that he should be protected from the
resentment of everyone, however powerful, to whom the exercise of
that liberty may occasion offence. [ Footnote 22 ]"

															Legislative immunity does not, of course, bar all judicial
review of legislative acts. That issue was settled by implication
as early as 1803, See Marbury v.
Madison , 1 Cranch 137, and expressly in Kilbourn v. Thompson, the first of this Court's cases
interpreting the reach of the Speech or Debate Clause. Challenged
in Kilbourn was the constitutionality of a House
Resolution ordering the arrest and imprisonment of a recalcitrant
witness who had refused to respond to a subpoena issued by a House
investigating committee. While holding that the Speech or Debate
Clause barred Kilbourn's action for false imprisonment brought
against several members of the House, the Court nevertheless
reached the merits of Kilbourn's attack, and decided that, since
the House had no power to punish for contempt, Kilbourn's
imprisonment Page 395 U. S. 504 pursuant to the resolution was unconstitutional. It therefore
allowed Kilbourn to bring his false imprisonment action against
Thompson, the House's Sergeant at Arms, who had executed the
warrant for Kilbourn's arrest.

															The Court first articulated in Kilbourn and followed in Dombrowski v. Eastland [ Footnote 23 ] the doctrine that, although an action
against a Congressman may be barred by the Speech or Debate Clause,
legislative employees who participated in the unconstitutional
activity are responsible for their acts. Despite the fact that
petitioners brought this suit against several House employees --
the Sergeant at Arms, the Doorkeeper and the Clerk -- as well as
several Congressmen, respondents argue that Kilbourn and Dombrowski are distinguishable. Conceding that, in Kilbourn, the presence of the Sergeant at Arms, and, in Dombrowski, the presence of a congressional subcommittee
counsel as defendants in the litigation allowed judicial review of
the challenged congressional action, respondents urge that both
cases concerned an affirmative act performed by the employee
outside the House having a direct effect upon a private citizen.
Here, they continue, the relief sought relates to actions taken by
House agents solely within the House. Alternatively, respondents
insist that Kilbourn and Dombrowski prayed for damages, while
petitioner Powell asks that the Sergeant at Arms disburse funds, an
assertedly greater interference with the legislative process. We
reject the proffered distinctions.

															That House employees are acting pursuant to express orders of
the House does not bar judicial review of the constitutionality of
the underlying legislative decision. Page 395 U. S. 505 Kilbourn decisively settles this question, since the
Sergeant at Arms was held liable for false imprisonment even though
he did nothing more than execute the House Resolution that Kilbourn
be arrested and imprisoned. [ Footnote 24 ] Respondents' suggestions thus ask us to
distinguish between affirmative acts of House employees and
situations in which the House orders its employees not to act or
between actions for damages and claims for salary. We can find no
basis in either the history of the Speech or Debate Clause or our
cases for either distinction. The purpose of the protection
afforded legislators is not to forestall judicial review of
legislative action, but to insure that legislators are not
distracted from or hindered in the performance of their legislative
tasks by being called into court to defend their actions. A
legislator is no more or no less hindered or distracted by
litigation against a legislative employee calling into question the
employee's affirmative action than he would be by a lawsuit
questioning the employee's failure to act. Nor is the distraction
or hindrance increased because the claim is for salary, rather than
damages, or because the litigation questions action taken by the
employee within, rather than without, the House. Freedom of
legislative activity and the purposes of the Speech or Debate
Clause are fully protected if legislators are relieved of the
burden of defending themselves. [ Footnote 25 ] In Kilbourn and Dombrowski, Page 395 U. S. 506 we thus dismissed the action against members of Congress, but
did not regard the Speech or Debate Clause as a bar to reviewing
the merits of the challenged Congressional action, since
congressional employees were also sued. Similarly, though this
action may be dismissed against the Congressmen, petitioners are
entitled to maintain their action against House employees and to
judicial review of the propriety of the decision to exclude
petitioner Powell. [ Footnote
26 ] As was said in Kilbourn, in language which time
has not dimmed:

															"Especially is it competent and proper for this court to
consider whether its [the legislature's] proceedings are in
conformity with the Constitution and laws because, living under a
written constitution, no branch or department of the government is
supreme, and it is the province and duty of the judicial department
to determine, in cases regularly brought before them, whether the
powers of any branch of the government, and even those of the
legislature in the enactment of laws, have been exercised in
conformity to the Constitution, and, if they have not, to treat
their acts as null and void."

															103 U.S. at 103 U. S.
199 . IV EXCLUSION OR EXPULSION The resolution excluding petitioner Powell was adopted by a vote
in excess of two-thirds of the 434 Members of Page 395 U. S. 507 Congress, 307 to 116. 113 Cong.Rec. 5037-5038. Article I, § 5,
grants the House authority to expel a member "with the Concurrence
of two thirds." [ Footnote
27 ] Respondents assert that the House may expel a member for
any reason whatsoever, and that, since a two-thirds vote was
obtained, the procedure by which Powell was denied his seat in the
90th Congress should be regarded as an expulsion, not an exclusion.
Cautioning us not to exalt form over substance, respondents quote
from the concurring opinion of Judge McGowan in the court
below:

															"Appellant Powell's cause of action for a judicially compelled
seating thus boils down, in my view, to the narrow issue of whether
a member found by his colleagues . . . to have engaged in official
misconduct must, because of the accidents of timing, be formally
admitted before he can be either investigated or expelled. The
sponsor of the motion to exclude stated on the floor that he was
proceeding on the theory that the power to expel included the power
to exclude, provided a 2/3 vote was forthcoming. It was. Therefore,
success for Mr. Powell on the merits would mean that the District
Court must admonish the House that it is form, not substance, that
should govern in great affairs, and accordingly command the House
members to act out a charade."

															129 U.S.App.D.C. at 383-384, 395 F.2d at 606-607. Page 395 U. S. 508 Although respondents repeatedly urge this Court not to speculate
as to the reasons for Powell's exclusion, their attempt to equate
exclusion with expulsion would require a similar speculation that
the House would have voted to expel Powell had it been faced with
that question. Powell had not been seated at the time House
Resolution No. 278 was debated and passed. After a motion to bring
the Select Committee's proposed resolution to an immediate vote had
been defeated, an amendment was offered which mandated Powell's
exclusion. [ Footnote 28 ] Mr.
Celler, chairman of the Select Committee, then posed a
parliamentary inquiry to determine whether a two-thirds vote was
necessary to pass the resolution if so amended "in the sense that
it might amount to an expulsion." 113 Cong.Rec. 5020. The Speaker
replied that "action by a majority vote would be in accordance with
the rules." Ibid. Had the amendment been regarded as an
attempt to expel Powell, a two-thirds vote would have been
constitutionally required. The Speaker ruled that the House was
voting to exclude Powell, and we will not speculate what the result
might have been if Powell had been seated and expulsion proceedings
subsequently instituted.

															Nor is the distinction between exclusion and expulsion merely
one of form. The misconduct for which Powell was charged occurred
prior to the convening of the 90th Congress. On several occasions,
the House has debated whether a member can be expelled for actions
taken during a prior Congress, and the House's own manual of
procedure applicable in the 90th Congress states that "both Houses
have distrusted their power to punish in such cases." Rules of the
House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess.,
25 (1967); Page 395 U. S. 509 see G. Galloway, History of the House of
Representatives 32 (1961). The House rules manual reflects
positions taken by prior Congress. For example, the report of the
Select Committee appointed to consider the expulsion of John W.
Langley states unequivocally that the House will not expel a member
for misconduct committed during an earlier Congress:

															"[I]t must be said that with practical uniformity the precedents
in such cases are to the effect that the House will not expel a
Member for reprehensible action prior to his election as a Member,
not even for conviction for an offense. On May 23, 1884, Speaker
Carlisle decided that the House had no right to punish a Member for
any offense alleged to have been committed previous to the time
when he was elected a Member, and added, 'That has been so
frequently decided in the House that it is no longer a matter of
dispute.'"

															H.R.Rep. No. 30, 69th Cong., 1st Sess., 1-2 (1925). [ Footnote 29 ] Page 395 U. S. 510 Members of the House having expressed a belief that such
strictures apply to its own power to expel, we will not assume that
two-thirds of its members would have expelled Powell for his prior
conduct had the Speaker announced that House Resolution No. 278 was
for expulsion, rather than exclusion. [ Footnote 30 ]

															Finally, the proceedings which culminated in Powell's exclusion
cast considerable doubt upon respondents' assumption that the
two-thirds vote necessary to expel would have been mustered. These
proceedings have been succinctly described by Congressman
Eckhardt:

															"The House voted 202 votes for the previous question [ Footnote 31 ] leading toward the
adoption of the [Select] Committee report. It voted 222 votes
against the previous question, opening the floor for the Curtis
Amendment, which ultimately excluded Powell. " Page 395 U. S. 511 "Upon adoption of the Curtis Amendment, the vote again fell
short of two-thirds, being 248 yeas to 176 nays. Only on the final
vote, adopting the Resolution as amended, was more than a
two-thirds vote obtained, the vote being 307 yeas to 116 nays. On
this last vote, as a practical matter, members who would not have
denied Powell a seat if they were given the choice to punish him
had to cast an aye vote or else record themselves as opposed to the
only punishment that was likely to come before the House. Had the
matter come up through the processes of expulsion, it appears that
the two-thirds vote would have failed, and then members would have
been able to apply a lesser penalty. [ Footnote 32 ]"

															We need express no opinion as to the accuracy of Congressman
Eckhardt's prediction that expulsion proceedings would have
produced a different result. However, the House's own views of the
extent of its power to expel Page 395 U. S. 512 combined with the Congressman's analysis counsel that exclusion
and expulsion are not fungible proceedings. The Speaker ruled that
House Resolution No. 278 contemplated an exclusion proceeding. We
must reject respondents' suggestion that we overrule the Speaker,
and hold that, although the House manifested an intent to exclude
Powell, its action should be tested by whatever standards may
govern an expulsion. V SUBJECT MATTER JURISDICTION As we pointed out in Baker v. Carr, 369 U.
S. 186 , 369 U. S. 198 (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. [ Footnote 33 ] However, for reasons set forth in 395 U. S. 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 Page 395 U. S. 513 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 395 U.
S. B(1), infra ) that this cause presents no
nonjusticiable "political question" disposes of respondents'
contentions [ Footnote 34 ]
that this cause is not a "case or controversy." [ Footnote 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, § 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, § 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 Page 395 U. S. 514 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. [ Footnote 36 ]"

															We reject this contention. Article III, § 1, provide that the
"judicial Power . . . shall be vested in one supreme Court, and in
such inferior Courts as the Congress may . . . establish." Further,
§ 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."
[ Footnote 37 ] Bell v.
Hood, 327 U. S. 678 , 327 U. S. 685 (1946). See King County v. Seattle School District No. 1, 263 U. S. 361 , 263 U. S.
363 -364 (1923). Cf. 22 U. S. Bank of
the United States, 9 Wheat. 738 (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. § 1331(a). Page 395 U. S. 515 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 § 1331(a). Although they recognize
there is little legislative history concerning the enactment of §
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 Act [ Footnote 38 ] in 1870 lends support
to their interpretation of the intended scope of § 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 § 1331(a), while
made in the language used in Art. III, is not in all respects
coextensive with the potential for federal jurisdiction found in
Art. III. See Zwickler v. Koota, 389 U.
S. 241 , 389 U. S. 246 ,
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. Page 395 U. S. 516 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of
Federal Questions, 90 U.Pa.L.Rev. 639, 6 645 (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 , 299 U. S. 112 (1936); The Fair v. Kohler Die & Specialty Co., 228 U. S. 22 , 228 U. S. 25 (1913).

															As respondents recognize, there is nothing in the wording or
legislative history of § 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 § 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. § 1344. Further, the Act was
passed five years before the original version of 1331 was enacted.
While it might be inferred that Congress intended to give each
House the exclusive power to decide congressional election
challenges, [ Footnote 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 § 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 Page 395 U. S. 517 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. A. 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 369 U. S. 198 .
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. § 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 Page 395 U. S. 518 availability of declaratory relief depends on whether there is a
live dispute between the parties, Golden v. Zwickler, 394 U. S. 103 (1969), and a request for declaratory relief may be considered
independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell, 330 U. S.
75 , 330 U. S. 93 (1947); 6A J. Moore, Federal Practice � 57.08[3] (2d ed.1966); cf. United States v. California, 332 U. S.
19 , 332 U. S. 25 -26
(1947). We thus conclude that, in terms of the general criteria of
justiciability, this case is justiciable. B. Political Question Doctrine 1. 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 (1939); Oetjen v. Central Leather Co., 246 U. S. 297 (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 coordinate 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 coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision
already made; or the potentiality Page 395 U. S. 519 of embarrassment from multifarious pronouncements by various
departments on one question."

															369 U.S. at 369 U. S.
217 .

															Respondents' first contention is that this case presents a
political question because, under Art. I, 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. [ Footnote 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,
§ 5, before we can determine to what extent, if any, the exercise
of that power is subject to judicial review. Respondents Page 395 U. S. 520 maintain that the House has broad power under § 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 § 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, [ Footnote 41 ] further consideration would be necessary to
determine whether any of the other formulations of the political
question doctrine are Page 395 U. S. 521 "inextricable from the case at bar." [ Footnote 42 ] Baker v. Carr, supra, at 369 U. S.
217 .

															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.
[ Footnote 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 369 U. S.
211 .

															In order to determine the scope of any "textual commitment"
under Art. I, § 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, § 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 Page 395 U. S. 522 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 House [ Footnote 44 ] without authority to
exclude any person, duly elected by his constituents, who meets all
the requirements for membership expressly prescribed in the
Constitution. a. The Pre-Convention Precedents. Since our rejection of respondents' interpretation of § 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 Page 395 U. S. 523 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. [ Footnote 45 ] See 1 E.
Porritt, The Unreformed House of Commons 125 (1963); T.
Taswell-Langmead's English Constitutional History 14143 (11th ed.
T. Plucknett 1960). The traditional ineligibility of clergymen was
recognized as a standing incapacity. [ Footnote 46 ] See 1 W. Blackstone's Commentaries
*175. Nowell's exclusion, therefore, is irrelevant to the present
case, for petitioners concedes -- 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, § 5. The
earliest colonial exclusions also fail to support respondents'
theory. [ Footnote 47 ] Page 395 U. S. 524 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. [ Footnote
48 ] Although these early expulsion orders occasionally
contained statements suggesting that the individual expelled was
thereafter ineligible for reelection, at least for the duration of
the Parliament from which he was expelled, [ Footnote 49 ] Page 395 U. S. 525 there is no indication that any were reelected and thereafter
excluded. Respondents' colonial precedents during this period
follow a similar pattern. [ Footnote 50 ]

															Apparently the reelection 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.Jour. 28, and committed him to the Tower.
Nevertheless, two months later, he was reelected. 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 reelected. At least two similar
exclusions after an initial expulsion were effected in the American
colonies during the first half of the 18th century. [ Footnote 51 ] Page 395 U. S. 526 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
*176. 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). [ Footnote 52 ]
Clearly, however, none of these cases supports respondents'
contention that, by the 18th century the English Parliament Page 395 U. S. 527 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. [ Footnote 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 Page 395 U. S. 528 declared him ineligible for membership and ordered that he be
"expelled this House." 16 Parl. Hist. Eng. 545 (1769). Although
Wilkes was reelected to fill the vacant seat three times, each time
the same Parliament declared him ineligible and refused to seat
him. See 11 Gipson, supra, at 207-215. [ Footnote 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 reelection 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 Page 395 U. S. 529 for excluding a member-elect who had been previously expelled,
[ Footnote 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. [ Footnote 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 Assembly [ Footnote 57 ] denounced the prior expulsion of an unnamed
assemblyman, ruling that his expulsion had not been effected in
conformity with the recently enacted Pennsylvania Constitution.
[ Footnote 58 ] In the course
of its report, the Page 395 U. S. 530 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 causes
[ Footnote 59 ] and his
pursuit of the right to be Page 395 U. S. 531 seated in Parliament became a cause celebre 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 Wilkes'
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. [ Footnote 60 ] It is within this historical context that
we must examine the Convention debates in 1787, just five years
after Wilkes' final victory. Page 395 U. S. 532 b. Convention Debates Relying heavily on Charles Warren's analysis [ Footnote 61 ] 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 Page 395 U. S. 533 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. [ Footnote 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, § 2. Id. at 213. [ Footnote 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 Page 395 U. S. 534 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. [ Footnote 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. [ Footnote 65 ] Page 395 U. S. 535 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" [ Footnote 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. [ Footnote
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. [ Footnote
68 ] Shortly thereafter, Page 395 U. S. 536 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, § 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
overemphasized. 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, § 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. [ Footnote 69 ] Page 395 U. S. 537 Respondents urge, however, that these events must be considered
in light of what they regard as a very significant change made in
Art. I, § 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 *175-176. Blackstone,
who was an apologist for the anti-Wilkes forces in Parliament,
[ Footnote 70 ] Page 395 U. S. 538 had added to his Commentaries after Wilkes' exclusion the
assertion that individuals who were not ineligible for the Commons
under the standing incapacities could still be denied their seat if
the Commons deemed them unfit for other reasons. [ Footnote 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. [ Footnote 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. Page 395 U. S. 539 "[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. [ Footnote
73 ]"

															Petitioners also argue that the post-Convention debates over the
Constitution's ratification support their interpretation of § 5.
For example, they emphasize Hamilton's reply to the anti-federalist
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 no 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.) Page 395 U. S. 540 Madison had expressed similar views in an earlier essay,
[ Footnote 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, § 4, which authorizes Congress to
regulate the times, places, and manner of electing members of
Congress. They note that prominent anti-federalists 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. [ Footnote 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 Page 395 U. S. 541 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). [ Footnote 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, § 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. c. Post-Ratification. As clear as these statements appear, respondents dismiss them as
"general statements . . . directed to other issues." [ Footnote 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
members-elect for reasons other than their Page 395 U. S. 542 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, [ Footnote 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 Page 395 U. S. 543 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 § 414 (1907)
(hereinafter cited as Hinds).

															There was no significant challenge to these principles for the
next several decades. [ Footnote
79 ] They came under heavy Page 395 U. S. 544 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. [ Footnote 80 ]"

															Rules of the House of Representatives, H.R.Doc. No. 529, 89th
Cong., 2d Sess., § 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 § § 449-451. [ Footnote 81 ]

															"This change was produced by the North's bitter emnity 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). [ Footnote 82 ] From that time until Page 395 U. S. 545 the present, congressional practice has been erratic; [ Footnote 83 ] and on the few
occasions when a member-elect was excluded although he met all the
qualifications set forth in the Page 395 U. S. 546 Constitution, there were frequently vigorous dissents. [ Footnote 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., § 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).
[ Footnote 85 ] That an
unconstitutional Page 395 U. S. 547 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 , 272 U. S. 175 (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. d. 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 construction 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' Page 395 U. S. 548 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, § 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. Respondents' alternate contention is that the case presents a
political question because judicial resolution of petitioners'
claim would produce a "potentially embarrassing confrontation
between coordinate branches" of the Federal Government. But, as our
interpretation of Art. I, § 5, discloses, a determination of
petitioner Powell's right to sit would require no more than an
interpretation of the Constitution. Such a determination falls
within the traditional role accorded courts to interpret the law,
and does not involve a "lack of the respect due [a] coordinate
[branch] of government," nor does it involve an "initial policy
determination of a kind clearly for nonjudicial Page 395 U. S. 549 discretion." Baker v. Carr, 369 U.
S. 186 , at 369 U. S. 217 .
Our system of government requires that federal courts on occasion
interpret the Constitution in a manner at variance with the
construction given the document by another branch. The alleged
conflict that such an adjudication may cause cannot justify the
courts' avoiding their constitutional responsibility. [ Footnote 86 ] See United States
v. Brown, 381 U. S. 437 , 381 U. S. 462 (1965); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 343 U. S.
613 -614 (1952) (Frankfurter, J., concurring); Myers
v. United States, 272 U. S. 52 , 272 U. S. 293 (1926) (Brandeis, J., dissenting).

															Nor are any of the other formulations of a political question
"inextricable from the case at bar." Baker v. Carr, supra, at 369 U. S. 217 .
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 369 U. S. 211 ,
it is the responsibility of this Court to act as the ultimate
interpreter of the Constitution. Marbury v.
Madison , 1 Cranch 137 (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 Page 395 U. S. 550 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, § 5
( see 395 U. S. 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.

															Petitioners seek additional forms of equitable relief, including
mandamus for the release of petitioner Powell's backpay. The
propriety of such remedies, however, is more appropriately
considered in the first instance by the courts below. Therefore, as
to respondents McCormack, Albert, Ford, Celler, and Moore, the
judgment of the Court of Appeals for the District of Columbia
Circuit is affirmed. As to respondents Jennings, Johnson, and
Miller, the judgment of the Court of Appeals for the District of
Columbia Circuit is reversed, and the case is remanded to the
United States District Court for the District of Columbia with
instructions to enter a declaratory judgment and for further
proceedings consistent with this opinion. It is so ordered. Page 395 U. S. 551 [ Footnote 1 ]

															Powell requested that he be given (1) notice of the charges
pending against him, including a bill of particulars as to any
accuser; (2) the opportunity to confront any accuser, to attend all
committee sessions where evidence was given, and the right to
cross-examine all witnesses; (3) public hearings; (4) the right to
have the Select Committee issue its process to summon witnesses for
his defense; (5) and a transcript of every hearing. Hearings on
H.R.Res. No. 1 before Select Committee Pursuant to H.R.Res. No. 1,
90th Cong., 1st Sess., 54 (1967).

															The Select Committee noted that it had given Powell notice of
the matters it would inquire into, that Powell had the right to
attend all hearings (which would be public) with his counsel, and
that the Committee would call witnesses upon Powell's written
request and supply a transcript of the hearings. Id. at
59.

															[ Footnote 2 ]

															The complaint also attacked the House Resolution as a bill of
attainder, an ex post facto law, and as cruel and unusual
punishment. Further, petitioners charged that the hearing
procedures adopted by the Select Committee violated the Due Process
Clause of the Fifth Amendment.

															[ Footnote 3 ]

															The District Court refused to convene a three-judge court, and
the Court of Appeals affirmed. Petitioners did not press this issue
in their petition for writ of certiorari, apparently recognizing
the validity of the Court of Appeals' ruling. See Stamler v.
Willis, 393 U. S. 217 (196).

															[ Footnote 4 ]

															Petitioners also requested that a writ of mandamus issue
ordering that the named officials perform the same acts.

															[ Footnote 5 ]

															The District Court entered its order April 7, 1967, and a notice
of appeal was filed the same day. On April 11, 1967, Powell was
reelected to the House of Representatives in a special election
called to fill his seat. The formal certification of election was
received by the House on May 1, 1967, but Powell did not again
present himself to the House or ask to be given the oath of
office.

															[ Footnote 6 ]

															Respondents' authority for this assertion is a footnote
contained in Gojack v. United States, 384 U.
S. 702 , 384 U. S. 70 , n.
4. (1966): "Neither the House of Representatives nor its committees
are continuing bodies."

															[ Footnote 7 ]

															The rule that this Court lacks jurisdiction to consider the
merits of a moot case is a branch of the constitutional command
that the judicial power extends only to cases or controversies. See Sibron v. New York, 392 U. S. 40 , 392 U. S. 57 (1968); R. Robertson & F. Kirkham, Jurisdiction of the Supreme
Court of the United States §§ 270-271 (R. Wolfson & P. Kurland
ed.1951); Diamond, Federal Jurisdiction To Decide Moot Cases, 94
U.Pa.L.Rev. 125 (1946); Note, Cases Moot on Appeal: A Limit on the
Judicial Power, 103 U.Pa.L.Rev. 772 (1955).

															[ Footnote 8 ]

															Petitioners do not press their claim that respondent McCormack
should be required to administer the oath to Powell, apparently
conceding that the seating of Powell has rendered this specific
claim moot. Where several forms of relief are requested and one of
these requests subsequently becomes moot, the Court has still
considered the remaining requests. See Standard Fashion Co. v.
Magrane-Houston Co., 258 U. S. 346 , 258 U. S. 353 (1922). Respondents also argue that the seating of petitioner
Powell has mooted the claims of Powell's constituents. Since this
case will be remanded, that issue, as well as petitioners' other
claims, can be disposed of by the court below.

															[ Footnote 9 ]

															Alejandrino's brief did not consider either the possibility that
his request for injunctive relief had become moot or whether his
salary claim required that the Court treat the propriety of his
suspension. No brief was filed on behalf of respondents.

															[ Footnote 10 ]

															After discussing the insufficiency of Alejandrino's averments as
to the officer responsible for his salary, the Court stated:

															"Were that set out, the remedy of the Senator would seem to be
by mandamus to compel such official in the discharge of his
ministerial duty to pay him the salary due. . . ."

															271 U.S. at 271 U. S. 534 .
That the insufficiency of Alejandrino's averments was the reason
for dismissal is further substantiated by a later passage:

															"As we are not able to derive from the petition sufficient
information upon which properly to afford such a remedy [mandamus],
we must treat the whole cause as moot, and act accordingly." Id. at 271 U. S.
535 .

															[ Footnote 11 ]

															Paragraph 1b of petitioners' complaint avers that "Leake W.
Johnson, as Sergeant-at-Arms of the House" is responsible for and
refuses to pay Powell's salary, and prays for an injunction
restraining the Sergeant at Arms from implementing the House
resolution depriving Powell of his salary, as well as mandamus to
order that the salary be paid.

															[ Footnote 12 ]

															Federal courts were first empowered to grant declaratory
judgments in 1934, see 48 Stat. 955, 10 years after
Alejandrino filed his complaint.

															[ Footnote 13 ]

															It was expressly stated in Alejandrino that a properly
pleaded mandamus action could be brought, 271 U.S. at 271 U. S. 535 ,
impliedly holding that Alejandrino's salary claim had not been
mooted by the expiration of his suspension.

															[ Footnote 14 ]

															Respondents do not supply any substantiation for their assertion
that the term of the Georgia Legislature did not expire until
December 31. Presumably, they base their statement upon Ga.Code
Ann. §§ 2-1601, 2-1603 (Supp. 1968).

															[ Footnote 15 ]

															Respondents also suggest that Bond is not applicable
because the parties in Bond had stipulated that Bond would
be entitled to back salary if his constitutional challenges were
accepted, while there is no stipulation in this case. However, if
the claim in Bond was moot, a stipulation by the parties
could not confer jurisdiction. See, e.g., California v. San
Pablo & Tulare R. Co., 149 U. S. 308 , 149 U. S. 314 (1893).

															[ Footnote 16 ]

															Since the court below disposed of this case on grounds of
justiciability, it did not pass upon whether Powell had brought an
appropriate action to recover his salary. Where a court of appeals
has misconceived the applicable law, and therefore failed to pass
upon a question, our general practice has been to remand the case
to that court for consideration of the remaining issues. See,
e.g., Utah Pie Co. v. Continental Baking Co., 386 U.
S. 685 , 386 U. S. 704 (1967); Bank of America National Trust & Savings Assn. v.
Parnell, 352 U. S. 29 , 352 U. S. 34 (1956). We believe that such action is appropriate for resolution
of whether Powell in this litigation is entitled to mandamus
against the Sergeant at Arms for salary withheld pursuant to the
House resolution.

															[ Footnote 17 ]

															Article I, § 6, provides: "for any Speech or Debate in either
House, they [Senators and Representatives] shall not be questioned
in any other Place."

															[ Footnote 18 ]

															Petitioners ask the Court to draw a distinction between
declaratory relief sought against members of Congress and either an
action for damages or a criminal prosecution, emphasizing that our
four previous cases concerned "criminal or civil sanctions of a
deterrent nature." Brief for Petitioners 171.

															[ Footnote 19 ] See 5 Debates on the Federal Constitution 406 (J.
Elliot ed. 1876); 2 Records of the Federal Convention of 1787, p.
246 (M. Farrand rev. ed.1966) (hereinafter cited as Farrand).

															[ Footnote 20 ]

															The English Bill of Rights contained a provision substantially
identical to Art. I, § 6:

															"That the Freedom of Speech, and Debates or Proceedings in
Parliament, ought not to be impeached or questioned in any Court or
Place out of Parliament."

															1 W. & M., Sess. 2, c. 2. The English and American colonial
history is traced in some detail in Cella, The Doctrine of
Legislative Privilege of Freedom of Speech and Debate: Its Past,
Present and Future as a Bar to Criminal Prosecutions in the Courts,
2 Suffolk U.L.Rev. 1, 3-16 (1968), and Yankwich, The Immunity of
Congressional Speech -- Its Origin, Meaning and Scope, 99
U.Pa.L.Rev. 960, 961-966 (1951).

															[ Footnote 21 ] United States v. Johnson, 383 U.
S. 169 , 383 U. S.
182 -183 (1966).

															[ Footnote 22 ]

															1 The Works of James Wilson 421 (R. McCloskey ed.1967).

															[ Footnote 23 ]

															In Dombrowski, $500,000 in damages was sought against a
Senator and the chief counsel of a Senate Subcommittee chaired by
that Senator. Record in No. 118, O.T. 1966, pp. 10-11. We affirmed
the grant of summary judgment as to the Senator, but reversed as to
subcommittee counsel.

															[ Footnote 24 ]

															The Court in Kilbourn quoted extensively from Stockdale v. Hansard, 9 Ad. & E. 1, 114, 112 Eng.Rep.
1112, 1156 (Q.B. 1839), to refute the assertion that House agents
were immune because they were executing orders of the House:

															"[I]f the Speaker, by authority of the House, order an illegal
Act, though that authority shall exempt him from question, his
order shall no more justify the person who executed it than King
Charles' warrant for levying ship-money could justify his revenue
officer."

															Kilbourn eventually recovered $20,000 against Thompson. See
Kilbourn v. Thompson, MacArth. & M. 401, 432 (Sup.Ct.D.C.
1883).

															[ Footnote 25 ]

															A Congressman is not, by virtue of the Speech or Debate Clause,
absolved of the responsibility of filing a motion to dismiss, and
the trial court must still determine the applicability of the
clause to plaintiff's action. See Tenney v. Brandhove, 341 U. S. 367 , 341 U. S. 377 (1951).

															[ Footnote 26 ]

															Given our disposition of this issue, we need not decide whether,
under the Speech or Debate Clause, petitioners would be entitled to
maintain this action solely against members of Congress where no
agents participated in the challenged action and no other remedy
was available. Cf. Kilbourn v. Thompson, 103 U.
S. 168 , 103 U. S.
204 -205 (1881).

															[ Footnote 27 ]

															Powell was "excluded" from the 90th Congress, i.e., he
was not administered the oath of office, and was prevented from
taking his seat. If he had been allowed to take the oath and
subsequently had been required to surrender his seat, the House's
action would have constituted an "expulsion." Since we conclude
that Powell was excluded from the 90th Congress, we express no view
on what limitations may exist on Congress' power to expel or
otherwise punish a member once he has been seated.

															[ Footnote 28 ]

															House Resolution No. 278, as amended and adopted, provided:
"That said Adam Clayton Powell . . . be and the same hereby is excluded from membership in the 90th Congress. . . ." 113
Cong.Rec. 5020. (Emphasis added.)

															[ Footnote 29 ]

															Other Congresses have expressed an identical view. The Report of
the Judiciary Committee concerning the proposed expulsion of
William S. King and John G. Schumaker informed the House:

															"Your committee are of opinion that the House of Representatives
has no authority to take jurisdiction of violations of law or
offenses committed against a previous Congress. This is purely a
legislative body, and entirely unsuited for the trial of crimes.
The fifth section of the first article of the Constitution
authorizes"

															"each house to determine the rules of its proceedings, punish
its members for disorderly behavior, and, with the concurrence of
two-thirds, expel a member."

															"This power is evidently given to enable each house to exercise
its constitutional function of legislation unobstructed. It cannot
vest in Congress a jurisdiction to try a member for an offense
committed before his election; for such offense a member, like any
other citizen, is amenable to the courts alone."

															H.R.Rep. No. 815, 44th Cong., 1st Sess., (1876). See
also 15 Cong.Rec. 4434 (1884) (ruling of the Speaker);
H.R.Rep. No. 81, 42d Cong., 3d Sess., 8 (1873) (expulsion of James
Brooks and Oakes Ames); H.R.Rep. No. 179, 35th Cong., 1st Sess.,
4-5 (1858) (expulsion of Orsamus B. Matteson).

															[ Footnote 30 ]

															We express no view as to whether such a ruling would have been
proper. A further distinction between expulsion and exclusion
inheres in the fact that a member whose expulsion is contemplated
may, as a matter of right, address the House and participate fully
in debate, while a member-elect apparently does not have a similar
right. In prior cases, the member whose expulsion was under debate
has been allowed to make a long, and often impassioned, defense. See Cong.Globe, 42d Cong., 3d Sess., 1723 (1873)
(expulsion of Oakes Ames); Cong.Globe, 41st Cong., 2d Sess.,
1524-1525, 1544 (1870) (expulsion of B. F. Whittemore); Cong.Globe,
34th Cong., 3d Sess., 925-926 (1857) (expulsion of William A.
Gilbert); Cong.Globe, 34th Cong., 3d Sess., 947-951 (1857)
(expulsion of William W. Welch); 9 Annals of Cong. 2966 (1799)
(expulsion of Matthew Lyon). On at least one occasion, the member
has been allowed to cross-examine other members during the
expulsion debate. 2 A. Hinds, Precedents of the House of
Representatives § 1643 (1907).

															[ Footnote 31 ]

															A motion for the previous question is a debate-limiting device
which, when carried, has the effect of terminating debate and of
forcing a vote on the subject at hand. See Rules of the
House of Representatives, H.R.Doc. No. 529, 89th Cong., 2d Sess.,
§§ 804-809 (1967); Cannon's Procedure in the House of
Representatives, H.R.Doc. No. 610, 87th Cong., 2d Sess., 277-281
(1963).

															[ Footnote 32 ]

															Eckhardt, The Adam Clayton Powell Case, 45 Texas L.Rev. 1205,
1209 (1967). The views of Congressman Eckhardt were echoed during
the exclusion proceedings. Congressman Cleveland stated that,
although he voted in favor of and supported the Select Committee's
recommendation, if the exclusion amendment received a favorable
vote on the motion for the previous question, then he would support
the amendment "on final passage." 113 Cong.Rec. 5031. Congressman
Gubser was even more explicit:

															"I shall vote against the previous question on the Curtis
amendment simply because I believe future and perfecting amendments
should be allowed. But if the previous question is ordered, then I
will be placed on the horns of an impossible dilemma."

															"Mr. Speaker, I want to expel Adam Clayton Powell by seating him
first, but that will not be my choice when the Curtis amendment is
before us. I will be forced to vote for exclusion, about which I
have great constitutional doubts, or to vote for no punishment at
all. Given this raw and isolated issue, the only alternative I can
follow is to vote for the Curtis amendment. I shall do so, Mr.
Speaker, with great reservation." Ibid. [ Footnote 33 ]

															Although each judge of the panel wrote a separate opinion, all
were clear in stating that the District Court possessed subject
matter jurisdiction. Powell v. McCormack, 129 U.S.App.D.C.
354, 368, 384, 385, 395 F.2d 577, 591, 607, 608 (1968).

															[ Footnote 34 ]

															We have determined that the case is not moot. See 395 U. S. supra. [ Footnote 35 ]

															Indeed, the thrust of respondents' argument on this
jurisdictional issue is similar to their contentions that this case
presents a nonjusticiable "political question." They urge that it
would have been "unthinkable" to the Framers of the Constitution
for courts to review the decision of a legislature to exclude a
member. However, we have previously determined that a claim
alleging that a legislature has abridged an individual's
constitutional rights by refusing to seat an elected representative
constitutes a "case or controversy" over which federal courts have
jurisdiction. See Bond v. Floyd, 385 U.
S. 116 , 385 U. S. 131 (1966). To the extent the expectations of the Framers are
discernible and relevant to this case, they must therefore relate
to the special problem of review by federal courts of actions of
the federal legislature. This is, of course, a problem of
separation of powers, and is to be considered in determining
justiciability. See Baker v. Carr, 369 U.
S. 186 , 369 U. S. 210 (1962).

															[ Footnote 36 ]

															Brief for Respondents 39.

															[ Footnote 37 ]

															Petitioners' complaint is predicated, inter alia, on
several sections of Article I, Article III, and several amendments
to the Constitution. Respondents do not challenge the
substantiality of these claims.

															[ Footnote 38 ]

															Act of May 31, 1870, § 23, 16 Stat. 146. The statute is now 28
U.S.C. § 1344.

															[ Footnote 39 ]

															Cong.Globe,41st Cong., 2d Sess., 3872 (1870).

															[ Footnote 40 ]

															Respondents rely on Barry v. United States ex rel.
Cunningham, 279 U. S. 597 (1929). Barry involved the power of the Senate to issue an
arrest warrant to summon a witness to give testimony concerning a
senatorial election. The Court ruled that issuance of the warrant
was constitutional, relying on the power of the Senate under Art.
I, § 5, to be the judge of the elections of its members.
Respondents particularly rely on language the Court used in
discussing the power conferred by Art. I, § 5. The Court noted
that, under § 5, the Senate could "render a judgment which is
beyond the authority of any other tribunal to review." Id. at 279 U. S.
613 . Barry provides no support for respondents' argument
that this case is not justiciable, however. First, in Barry, the Court reached the merits of the controversy,
thus indicating that actions allegedly taken pursuant to Art. I, §
5, are not automatically immune from judicial review. Second, the
quoted statement is dictum; and, later in the same opinion, the
Court noted that the Senate may exercise its power subject "to the
restraints imposed by or found in the implications of the
Constitution." Id. at 279 U. S. 614 .
Third, of course, the statement in Barry leaves open the
particular question that must first be resolved in this case: the
existence and scope of the textual commitment to the House to judge
the qualifications of members.

															[ Footnote 41 ]

															In addition to the three qualifications set forth in Art. I, §
2, Art. I, § 3, cl. 7, authorizes the disqualification of any
person convicted in an impeachment proceeding from "any Office of
honor, Trust or Profit under the United States"; Art. I, § 6, cl.
2, provides that "no Person holding any Office under the United
States, shall be a Member of either House during his Continuance in
Office", and § 3 of the 14th Amendment disqualifies any person

															"who, having previously taken an oath . . . to support the
Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof."

															It has been argued that each of these provisions, as well as the
Guarantee Clause of Article IV and the oath requirement of Art. VI,
cl. 3, is no less a "qualification" within the meaning of Art. I, §
5, than those set forth in Art. I, § 2. Dionisopoulos, A Commentary
on the Constitutional Issues in the Powell and Related
Cases, 17 J.Pub.L. 103, 111-115 (1968). We need not reach this
question, however, since both sides agree that Powell was not
ineligible under any of these provisions.

															[ Footnote 42 ]

															Consistent with this interpretation, federal courts might still
be barred by the political question doctrine from reviewing the
House's factual determination that a member did not meet one of the
standing qualifications. This is an issue not presented in this
case, and we express no view as to its resolution.

															[ Footnote 43 ]

															Indeed, the force of respondents' other arguments that this case
presents a political question depends in great measure on the
resolution of the textual commitment question. See 395 U. S. B(2), infra. [ Footnote 44 ]

															Since Art. I, § 5, cl. 1, applies to both Houses of Congress,
the scope of the Senate's power to judge the qualifications of its
members necessarily is identical to the scope of the House's power,
with the exception, of course, that Art. 1, § 3, cl. 3, establishes
different age and citizenship requirements for membership in the
Senate.

															[ Footnote 45 ]

															Since the reign of Henry IV (1399-1413), no clergyman had sat in
the House of Commons. 1 E. Porritt, The Unreformed House of Commons
125 (1963).

															[ Footnote 46 ]

															Because the British do not have a written constitution, standing
incapacities or disqualifications for membership in Parliament are
derived from "the custom and law of parliament." 1 W. Blackstone's
Commentaries *162; see id. at *175. The groups thus
disqualified as of 1770 included aliens; minors; judges who sat in
the House of Lords; clergy who were represented in their own
convocation; persons "attainted of treason or felony"; sheriffs,
mayors, and bailiffs as representatives for their own
jurisdictions, and certain taxing officials and officers of the
Crown. Id. at *175-176. Not until the exclusion of John
Wilkes, discussed infra, did Blackstone subscribe to the
theory that, in addition, the Commons could declare ineligible an
individual "in particular [unspecified] circumstances . . . for
that parliament" if it deemed him unfit to serve on grounds not
encompassed by the recognized standing incapacities. As we explain infra, this position was subsequently repudiated by the
House in 1782. A Clerk of the House of Commons later referred to
cases in which this theory was relied upon "as examples of an
excess of . . . jurisdiction by the Commons; for one house of
Parliament cannot create a disability unknown to the law." T. May's
Parliamentary Practice 67 (13th ed. T. Webster 1924).

															[ Footnote 47 ]

															In 1619, the Virginia House of Burgesses challenged the
eligibility of certain delegates on the ground that they did not
hold their plantations under proper patents from the Virginia
Company in England. See generally 7 The Federal and State
Constitutions, Colonial Charters, and Other Organic Laws 3783-3810
(F. Thorpe ed.1909) (hereinafter cited as Thorpe). One of them, a
Captain Warde, was admitted on condition that he obtain the
necessary patent. The others, representatives from Martin's Brandon
plantation, were excluded on the ground that the owner of the
plantation had claimed that his patent exempted him from the
colony's laws. See Journals of the House of Burgesses of
Virginia:1619-1658/59, pp. 4-5 (1915); M. Clarke, Parliamentary
Privilege in the American Colonies 133-134 (1943). The questions
presented by these two cases, therefore, seem to be jurisdictional
in nature -- that is, an attempt was made to gain representation
for plantations over which the assembly may have had no power to
act. Thus viewed, these cases are analogous to the exclusions for
failure to comply with standing qualifications. They certainly are
not precedents which support the view that a legislative body could
exclude members for mere character defects or prior misconduct
disapproved by the assembly. See generally Clarke, supra, at 132-204; J. Greene, The Quest for Power: The
Lower Houses of Assembly in the Southern Royal Colonies:1689-1776,
pp. 171-204 (1963).

															[ Footnote 48 ]

															For example, in 1585, the Commons expelled a Doctor Parry for
unspecified misbehavior. A Compleat Journal of the Votes, Speeches
and Debates of the House of Lords and House of Commons Throughout
the Whole Reign of Queen Elizabeth, of Glorious Memory 352 (S.
D'Ewes ed. 1708), and in 1628 Sir Edmund Sawyer was expelled
because he had sought to induce a witness to suppress evidence
against Sir Edmund in testimony before the House. 1 H.C.Jour.
917.

															[ Footnote 49 ]

															In expelling Sir Edmund Sawyer in 1628, the Commons declared
"him to be unworthy ever to serve as a Member of this House." Ibid. Almost identical language was used in the expulsion
of H. Benson in 1641. 2 id. at 301. But, by 1642, the
formula had been changed to "disabled to serve any longer in
this Parliament as a Member of this House. . . ." Id. at 703. (Emphasis added.) By the 18th century, it was apparently
well established that an expulsion by the House of Commons could
last no longer than the duration of the Parliament from which the
member was expelled. See 1 W. Blackstone's Commentaries
*176.

															[ Footnote 50 ]

															For example, in 1652, the Virginia House of Burgesses expelled
two members for prior conduct disapproved by the assembly, Journals
of the House of Burgesses, supra, at 85, and, in 1683,
Rhode Island expelled a member "from acting in this present
Assembly" for refusing to answer a court summons. 1 S. Arnold,
History of the State of Rhode Island and Providence Plantations 289
(1859). See generally Clarke, supra, at
173-204.

															[ Footnote 51 ]

															In 1726, the Massachusetts House of Representatives excluded
Gershom Woodle, who had been expelled on three previous occasions
as "unworthy to be a Member." 7 Journals of the House of
Representatives of Massachusetts 1726-1727, pp. 4-5, 15, 68-69
(1926). In 1758, North Carolina expelled Francis Brown for perjury.
He was reelected twice in 1760 and excluded on both occasions;
however, when he was elected at the 1761 general elections, he was
allowed to take his seat. 5 Colonial Records of North Carolina
1057-1058 (1887); 6 id. at 375, 474, 662-663, 672-673
(1888). There may have been similar exclusions of two men elected
in 1710 to the New Jersey Assembly. See Clarke, supra, at 197-198.

															[ Footnote 52 ]

															Significantly, the occasional assumption of this broader
expulsion power did not go unchallenged, Clarke, supra, at
196-202, and it was not supported by the only parliamentary
precedent, the Walpole case.

															[ Footnote 53 ]

															Pursuant to a general warrant, Wilkes was arrested, his home
ransacked, and his private papers seized. In his later election
campaigns, Wilkes denounced the use of general warrants, asserting
that he was fighting for liberty itself. See 11 L. Gipson
The British Empire Before the American Revolution 213-214
(1965).

															[ Footnote 54 ]

															The issue before the Commons was clear: could the Commons "put
in any disqualification, that is not put in by the law of the
land." 1 H. Cavendish's Debates 384 (J. Wright ed. 1841). The
affirmative answer was somewhat less than resounding. After Wilkes'
third reelection, the motion to seat his opponent carried 197 to
143.

															[ Footnote 55 ]

															The validity of the House's action against Wilkes rested to a
large extent on the validity of the Walpole precedent.
Taswell-Langmead, supra, at 585. Thus, the House of
Commons resolution expunging, as subversive to the rights of the
whole electorate, the action taken against Wilkes was also a tacit
repudiation of the similar action taken against Walpole in
1712.

															[ Footnote 56 ]

															English law is apparently the same today. See T. May's
Parliamentary Practice 105-108 (17th ed. B. Cocks 1964).

															[ Footnote 57 ]

															The Council of Censors was established by the 1776 Pennsylvania
Constitution. It was an elected body that was specifically charged
with the duty

															"to enquire whether the constitution has been preserved
inviolate in every part, and whether the legislative and executive
branches of government have performed their duty as guardians of
the people, or assumed to themselves, or exercised other or greater
powers than they are entitled to by the constitution."

															Pa.Const. of 1776, § 47, 5 Thorpe 3091. See Pennsylvania Convention Proceedings:1776 and 1790, Introduction, p.
IV (1825).

															[ Footnote 58 ]

															In discussing the case, respondents characterize the earlier
action as an exclusion. The Council of Censors, however, stated
that the general assembly had resolved that the member "is expelled
from his seat." Pennsylvania Convention Proceedings, supra, at 89. The account of the dissenting committee
members suggests that the term expulsion was properly used. They
note that, in February, 1783, the assembly received a letter from
the Comptroller General charging the assemblyman with fraud. Not
until September 9, 1783, did the assembly vote to expel him.
Presumably, he held his seat until that time. But, even if he had
been excluded, arguably he was excluded for not meeting a standing
incapacity, since the Pennsylvania Constitution of 1776 required
assemblymen to be "most noted for wisdom and virtue. "
Pa.Const. of 1776, § 7, 5 Thorpe 3084. (Emphasis added.) In fact,
the dissenting members of the Committee argued that the expelled
member was ineligible under this very provision. Pennsylvania
Convention Proceedings, supra, at 89.

															Respondents cite one other exclusion during the period between
the Declaration of Independence and the Constitutional Convention
11 years later. In 1780, the Virginia Assembly excluded John
Breckenridge because he was a minor. Minority, of course, was a
traditional standing incapacity, and Charles Warren therefore
appears to have been correct in concluding that this exclusion was
probably based upon an interpretation of the state constitutional
requirement that members must be duly qualified according to law.
Va.Const., 7 Thorpe 3816. See C. Warren, The Making of the
Constitution 423, n. 1 (1928). Respondents, based upon their
misinterpretation of the Pennsylvania case just discussed,
criticize Charles Warren for concluding that there had been only
one exclusion during this period. Our research, however, has
disclosed no other cases.

															[ Footnote 59 ]

															Wilkes had established a reputation both in England and the
Colonies as a champion of free elections, freedom from arbitrary
arrest and seizure, and freedom of the press. See 11
Gipson, supra, at 191-222.

															[ Footnote 60 ] See R. Postgate, That Devil Wilkes 171-172, 173-174
(1929). During the House of Commons debates in 1781, a member
remarked that expelling Wilkes had been "one of the great causes
which had separated . . . [England] from America." 22
Parl.Hist.Eng. 100-101 (1781).

															The writings of the pamphleteer "Junius" were widely reprinted
in colonial newspapers, and lent considerable support to the
revolutionary cause. See 3 Dictionary of American History
190 (1940). Letter XVIII of the "Letters of Junius" bitterly
attacked the exclusion of Wilkes. This letter, addressed to
Blackstone, asserted:

															"You cannot but know, sir, that what was Mr. Wilkes' case
yesterday may be yours or mine tomorrow, and that, consequently,
the common right of every subject of the realm is invaded by it. .
. . If the expulsion of a member, not under any legal disability,
of itself creates in him an incapacity to be elected, I see a ready
way marked out by which the majority may, at any time, remove the
honestest and ablest men who happen to be in opposition to them. To
say that they will not make this extravagant use of their power
would be a language unfit for a man so learned in the laws as you
are. By your doctrine, sir, they have the power: and laws, you
know, are intended to guard against what men may do, not to trust
to what they will do."

															1 Letters of Junius, Letter XVIII, p. 118 (1821).

															[ Footnote 61 ] See Warren, supra, at 399-426.

															[ Footnote 62 ]

															Dickinson also said that a built-in veneration for wealth would
be inconsistent with the republican ideal that merit alone should
determine who holds the public trust. 2 Farrand 123.

															[ Footnote 63 ]

															On August 10, a delegate moved to reconsider the citizenship
qualification. The delegate proposed to substitute a three-year
requirement for the seven-year requirement already agreed upon. The
motion passed. Id. at 251. However, when this proposal was
considered on August 13, it was rejected. Id. at
265-266.

															[ Footnote 64 ]

															Charles Pinckney proposed that the President, judges, and
legislators of the United States be required to swear that they
possessed a specified amount of unencumbered property. Benjamin
Franklin expressed his strong opposition, observing that "[s]ome of
the greatest rogues he was ever acquainted with were the richest
rogues." Id. at 249. He voiced the fear that a property
requirement would "discourage the common people from removing to
this Country." Ibid. Thereafter, "the Motion of Mr.
Pinkney [ sic ] was rejected by so general a no that the States were not called." Ibid. (Emphasis in
original.)

															[ Footnote 65 ]

															"That the right of the electors to be represented by men of
their own choice was so essential for the preservation of all their
other rights that it ought to be considered as one of the most
sacred parts of our constitution. . . . That the law of the land
had regulated the qualifications of members to serve in parliament,
and that the freeholders . . . had an indisputable right to return
whom they thought proper, provided he was not disqualified by any
of those known laws. . . . They are not occasional, but fixed: to
rule and govern the question as it shall arise; not to start up on
a sudden, and shift from side to side as the caprice of the day or
the fluctuation of party shall direct."

															16 Parl.Hist.Eng. 589-590 (1769).

															[ Footnote 66 ] Id. at 589.

															[ Footnote 67 ]

															Wilkes had made essentially the same argument in one of his
early attempts to have the resolutions denying him a seat
expunged:

															"This usurpation, if acquiesced under, would be attended with
the most alarming consequences. If you can reject those
disagreeable to a majority, and expel whom you please, the House of
Commons will be self-created and self-existing. You may expel till
you approve, and thus in effect you nominate. The original idea of
this House being the representative of the Commons of the realm
will be lost."

															18 Parl.Hist.Eng. 367 (1775).

															[ Footnote 68 ]

															Charles Warren concluded that "Madison's reference was
undoubtedly to the famous election case of John Wilkes. . . ."
Warren, supra, at 420, n. 1. It is also possible, however,
that he was referring to the Parliamentary Test Act, 30 Car. 2,
Stat. 2, c. 1 (1678), which had excluded Catholics as a group from
serving in Parliament.

															[ Footnote 69 ]

															Charles Warren, upon whose interpretation of these events
petitioners rely, concluded that the Convention's decision to
reject Gouverneur Morris' proposal and the more limited proposal of
the Committee of Detail was an implicit adoption of Madison's
position that the qualifications of the elected "were fundamental
articles in a Republican Govt. and ought to be fixed by the
Constitution." 2 Farrand 249-250. See Warren, supra, at 420-421. Certainly, Warren argued,

															"[s]uch action would seem to make it clear that the Convention
did not intend to grant to a single branch of Congress . . . the
right to establish any qualifications for its members, other than
those qualifications established by the Constitution itself. . . .
For certainly it did not intend that a single branch of Congress
should possess a power which the Convention had expressly refused
to vest in the whole Congress." Id. at 421. See 1 J. Story, Commentaries on
the Constitution of the United States § 625, at 445 (1873).
Although Professor Chafee argued that congressional precedents do
not support this construction, he nevertheless stated that
forbidding any additions to the qualifications expressed in the
Constitution was "the soundest policy." Z. Chafee, Free Speech in
the United States 256 (1941).

															[ Footnote 70 ] See 10 W. Holdsworth, A History of English Law 540-542
(1938).

															[ Footnote 71 ]

															Holdsworth notes that, in the first edition of Blackstone's
Commentaries, Blackstone enumerated various incapacities and then
concluded that,

															"subject to these standing restrictions and disqualifications,
every subject of the realm is eligible [for membership in the House
of Commons] of common right."

															1 W. Blackstone's Commentaries *176. Blackstone was called upon
in Commons to defend Wilkes' exclusion, and the passage was quoted
against him. Blackstone retaliated by writing a pamphlet and making
two additions to later editions of his Commentaries in an effort to
justify the decision of Parliament. Holdsworth, supra, at
540-541.

															[ Footnote 72 ]

															Appendix D to Brief for Respondents 52.

															[ Footnote 73 ]

															Warren, supra, at 422, n. 1. Charles Warren buttressed
his conclusion by noting that the Massachusetts Constitution of
1780 "contained affirmative qualifications for Representatives and
exactly similar negative qualifications for Senators." Ibid. Apparently, these provisions were not considered
substantively different, for each house was empowered in identical
language to "judge of the elections, returns and qualifications of
their own members, as pointed out in the constitution. "
Mass.Const., pt. 2, c. I, § 2, Art. IV, 3 Thorpe 1897, and § 3,
Art. X, 3 Thorpe 1899. (Emphasis added.) See Warren, supra, at 422-423, n. 1.

															[ Footnote 74 ]

															In No. 52 of The Federalist, Madison stated:

															"The qualifications of the elected, being less carefully and
properly defined by the State constitutions, and being at the same
time more susceptible of uniformity, have been very properly
considered and regulated by the convention. [He then enumerated the
qualifications for both representatives and Senators.] . . . Under
these reasonable limitations, the door of this part of the federal
government is open to merit of every description, whether native or
adoptive, whether young or old, and without regard to poverty or
wealth, or to any particular profession or religious faith."

															The Federalist Papers 326 (Mentor ed.1961).

															[ Footnote 75 ]

															Respondents dismiss Madison's assertion that the

															"qualifications of the elected, . . . being at the same time
more susceptible of uniformity, have been very properly considered
and regulated by the convention"

															as nothing more than a refutation of the charge that the new
national legislature would be free to establish additional
"standing incapacities." However, this conclusion cannot be
reconciled with the pre-Convention history on this question, the
Convention debates themselves, and, in particular, the delegates'
decision to require a two-thirds vote for expulsion.

															[ Footnote 76 ]

															At the same convention, Robert Livingston, one of the new
Constitution's most ardent supporters and one of the State's most
substantial landowners, endorsed this same fundamental
principle:

															"The people are the best judges who ought to represent them. To
dictate and control them, to tell them whom they shall not elect,
is to abridge their natural rights."

															2 Elliot's Debates 292-293.

															[ Footnote 77 ]

															Appendix D to Brief for Respondents 62.

															[ Footnote 78 ]

															In 1797, during the 5th Congress, 1st Session, the House
considered expelling Matthew Lyon, a Republican, for sedition. The
vote to expel, however, was 49 to 45, and broke down largely along
partisan lines. Although Lyon's opponents, the Federalists,
retained a majority in the 6th Congress, to which Lyon was
reelected, and although there were political advantages to be
gained from trying to prevent him from taking his seat, there was
no effort made to exclude him. See Dionisopoulos, A
Commentary on the Constitutional Issues in the Powell and
Related Cases, 17 J.Pub.L. 103, 123-127 (1968).

															[ Footnote 79 ]

															Another Maryland representative was unsuccessfully challenged in
1808 on grounds almost identical to those asserted in the challenge
of McCreery. See 18 Annals of Cong. 1848-1849 (1808). In
1844, the Senate declined to exclude John M. Niles, who was accused
of being mentally incompetent, after a special committee reported
him competent. Cong.Globe, 28th Cong., 1st Sess., 564-565, 602
(1844). In 1856, the House rejected an attempt to exclude Samuel
Marshall for violating an Illinois law prohibiting state judges
from running for other offices. 1 Hinds § 415. That same year, the
Senate refused to exclude Lyman Trumbull for violating the same
Illinois law. Ibid. [ Footnote 80 ]

															Between 1862 and 1867, both the House and Senate resisted
several attempts to exclude members-elect who were accused of being
disloyal to the Union during the Civil War. See id., §§
448, 455, 458; Senate Election, Expulsion and Censure Cases, S.Doc.
No. 71, 87th Cong., 2d Sess., 21 (1962) (hereinafter cited as
Senate Cases).

															[ Footnote 81 ]

															That same year, the Senate also excluded a supporter of the
Confederacy. Senate Cases 40. The House excluded two others shortly
thereafter, one for the same offense, and another for selling
appointments to the Military and Naval Academies. See 1
Hinds §§ 459, 464; 2 Hinds § 1273.

															[ Footnote 82 ]

															This departure from previous House construction of its power to
exclude was emphasized by Congressman William P. Fessenden:

															"[T]he power which we have under the Constitution to judge of
the qualifications of members of the body is not a mere arbitrary
power, to be exerted according to the will of the individuals who
may vote upon the subject. It ought to be a power subject to
certain rules and founded upon certain principles. So it was up to
a very late period, until the rebellion. The rule simply was, if a
man came here and presented proper credentials from his State to
allow him to take the ordinary oath, which we all took, to support
the Constitution, and be admitted, and if there was any objection
to him to try that question afterward."

															Cong.Globe, 40th Cong., 2d Sess., 685 (1868).

															[ Footnote 83 ]

															For example, in 1870, the House refused to exclude a Texas
Congressman accused of a variety of criminal acts, 1 Hinds § 465;
but in 1882 and again in 1900, the House excluded a member-elect
for practicing polygamy. 1 Hinds §§ 473, 477-480. Thereafter, it
apparently did not consider excluding anyone until shortly after
World War I, when it twice excluded Victor L. Berger, an avowed
Socialist, for giving aid and comfort to the enemy. Significantly,
the House committee investigating Berger concluded that he was
ineligible under the express provision of § 3 of the Fourteenth
Amendment. 6 C. Cannon, Precedents of the House of Representatives
of the United States §§ 56-59 (1935) (hereinafter cited as Cannon).
Berger, the last person to be excluded from the House prior to
Powell, was later reelected and finally admitted after his criminal
conviction was reversed. 65 Cong.Rec. 7 (1923).

															The House next considered the problem in 1925, when it
contemplated excluding John W. Langley for his alleged misconduct.
Langley resigned after losing a criminal appeal, and the House
therefore never voted upon the question. 6 Cannon § 238. The most
recent exclusion attempt prior to Powell's occurred in 1933, when
the House refused to exclude a Representative from Minnesota who
had been convicted of sending defamatory matter through the mail. See 77 Cong.Rec. 73-74, 131-139 (1933).

															The Senate has not excluded anyone since 1929; in that year, it
refused to seat a member-elect because of improper campaign
expenditures. 6 Cannon § 180. In 1947, a concerted effort was made
to exclude Senator Theodore G. Bilbo of Mississippi for allegedly
accepting gifts from war contractors and illegally intimidating
Negroes in Democratic primaries. See 93 Cong.Rec. 3-28
(1947). He died, however, before a decision was reached.

															[ Footnote 84 ]

															During the debates over H.R.Res. No. 278, Congressman Celler,
chairman of both the Select Committee and the Judiciary Committee,
forcefully insisted that the Constitution "unalterably fixes and
defines" the qualifications for membership in the House, and that
any other construction of Art. I, § 5, would be "improper and
dangerous." 113 Cong.Rec. 4998. See H.R.Rep. No. 484, 43d
Cong., 1st Sess., 11-15 (1874) (views of minority); H.R.Rep. No.
85, 56th Cong., 1st Sess., 53-77 (1900) (views of minority). In the
latter report, the dissenters argued:

															"A small partisan majority might render the desire to
arbitrarily exclude, by a majority vote, in order to more securely
intrench itself in power, irresistible. Hence, its exercise is
controlled by legal rules. In case of expulsion, when the requisite
two-thirds can be had, the motive for the exercise of arbitrary
power no longer exists, as a two-thirds partisan majority is
sufficient for every purpose. . . . The power of exclusion is a
matter of law, to be exercised by a majority vote in accordance
with legal principles, and exists only where a member-elect lacks
some of the qualifications required by the Constitution." Id. at 76-77.

															[ Footnote 85 ]

															"Determining the basis for a congressional action is itself
difficult; since a congressional action, unlike a reported judicial
decision, contains no statement of the reasons for the disposition,
one must fall back on the debates and the committee reports. If
more than one issue is raised in the debates, one can never be sure
on what basis the action was predicated. Unlike a court, which is
presumed to be disinterested, in an exclusion case, the concerned
house is, in effect, a party to the controversy that it must
adjudicate. Consequently, some members may be inclined to vote for
exclusion though they strongly doubt its constitutionality."

															81 Harv.L.Rev. at 679.

															[ Footnote 86 ]

															In fact, the Court has noted that it is an "inadmissible
suggestion" that action might be taken in disregard of a judicial
determination. McPherson v. Blacker, 146 U. S.
1 , 146 U. S. 24 (1892).

															MR. JUSTICE DOUGLAS.

															While I join the opinion of the Court, I add a few words. As the
Court says, the important constitutional question is whether the
Congress has the power to deviate from or alter the qualifications
for membership as a Representative contained in Art. I, § 2, cl. 2,
of the Constitution. [ Footnote 2/1 ]
Up to now, the understanding has been quite clear to the effect
that such authority does not exist. [ Footnote 2/2 ] To be sure, Art. I, § 5, provides that:
"Each Page 395 U. S. 552 House shall be the Judge of the Elections, Returns and
Qualifications of its own Members. . . ." Contests may arise over
whether an elected official meets the "qualifications" of the
Constitution, in which event the House is the sole judge. [ Footnote 2/3 ] But the House is not the sole
judge when "qualifications" are added which are not specified in
the Constitution. [ Footnote
2/4 ] Page 395 U. S. 553 A man is not seated because he is a Socialist or a Communist.
[ Footnote 2/5 ]

															Another is not seated because, in his district, members of a
minority are systematically excluded from voting. [ Footnote 2/6 ]

															Another is not seated because he has spoken out in opposition to
the war in Vietnam. [ Footnote
2/7 ]

															The possible list is long. Some cases will have the racist
overtones of the present one.

															Others may reflect religious or ideological clashes. [ Footnote 2/8 ]

															At the root of all these cases, however, is the basic integrity
of the electoral process. Today we proclaim the constitutional
principle of "one man, one vote." When that principle is followed
and the electors choose a person who is repulsive to the
Establishment in Congress, by what constitutional authority can
that group of electors be disenfranchised?

															By Art. I, § 5, the House may "expel a Member" by a vote of
two-thirds. And if this were an expulsion case, I would think that
no justiciable controversy would be presented, the vote of the
House being two-thirds or more. But it is not an expulsion case.
Whether it could have been won as an expulsion case no one knows.
Expulsion for "misconduct" may well raise different questions,
different considerations. Policing the conduct of members, a
recurring problem in the Senate and House as well, is quite
different from the initial decision whether an elected official
should be seated. It well might be easier to bar admission than to
expel one already seated.

															The House excluded Representative-elect Powell from the 90th
Congress allegedly for misappropriating public funds and for
incurring the contempt of New York Page 395 U. S. 554 courts. [ Footnote 2/9 ]
Twenty-six years earlier, members of the upper chamber attempted to
exclude Senator-elect William Langer of North Dakota for like
reasons. [ Footnote 2/10 ] Langer
first became State's Attorney for Morton County, North Dakota, from
1914 to 1916, and then served as State Attorney General from 1916
to 1920. He became Governor of the State in 1932, and took office
in January, 1933. In 1934, he was indicted for conspiring to
interfere with the enforcement of federal law by illegally
soliciting political contributions from federal employees, and suit
was filed in the State Supreme Court to remove him from office.
[ Footnote 2/11 ] While that suit
was pending, he called the State Legislature into special session.
[ Footnote 2/12 ] When it became
clear that the court would order his ouster, he signed a
Declaration of Independence, invoked martial law, and called out
the National Guard. [ Footnote
2/13 ] Nonetheless, when his own officers refused to recognize
him as the legal head of state, he left office in July, 1934. As
with Adam Clayton Powell, however, the people of the State still
wanted him. In 1937, they reelected him Governor and, in 1940, they
sent him to the United States Senate.

															During the swearing-in ceremonies, Senator Barkley drew
attention to certain complaints filed against Langer by citizens of
North Dakota, yet asked that he be allowed to take the oath of
office

															"without prejudice, which is a two-sided proposition -- without
prejudice to the Senator and without Page 395 U. S. 555 prejudice to the Senate in the exercise of its right [to exclude
him]. [ Footnote 2/14 ]"

															The matter of Langer's qualifications to serve in the Senate was
referred to committee, which held confidential hearings on January
9 and 16, 1941, and open hearings on November 3 and 18, 1941. By a
vote of 14 to 2, the committee reported that a majority of the
Senate had jurisdiction under Art. I, § 5, cl. 1, of the
Constitution to exclude Langer; and, by a vote of 13 to 3, it
reported its recommendation that Langer not be seated. [ Footnote 2/15 ]

															The charges against Langer were various. As with Powell, they
included claims that he had misappropriated public funds [ Footnote 2/16 ] and that he had interfered
with the judicial process in a way that beclouded the dignity of
Congress. [ Footnote 2/17 ]
Reference was also made to his professional ethics as a lawyer.
[ Footnote 2/18 ]

															Langer enjoyed the powerful advocacy of Senator Murdock from
Utah. The Senate debate itself raged Page 395 U. S. 556 for over a year. [ Footnote
2/19 ] Much of it related to purely factual allegations of
"moral turpitude." Some of it, however, was addressed to the power
of the Senate under Art. I, § 5, cl. 1, to exclude a member-elect
for lacking qualifications not enumerated in Art. I, § 3.

															"Mr. MURDOCK. . . . [U]nder the Senator's theory that the Senate
has the right to add qualifications which are not specified in the
Constitution, does the Senator believe the Senate could adopt a
rule specifying intellectual and moral qualifications? [ Footnote 2/20 ]"

															"Mr. LUCAS. The Senate can do anything it wants to do. . . .
Yes; the Senate can deny a person his seat simply because it does
not like the cut of his jaw, if it wishes to. [ Footnote 2/21 ]"

															Senator Murdock argued that the only qualifications for service
in the Senate were those enumerated in the Constitution; that
Congress had the power to review those enumerated qualifications;
but that it could not -- while purporting to "judge" those
qualifications -- in reality add to them.

															"Mr. LUCAS. The Senator referred to article I, section 5. What
does he think the framers of the Constitution meant when they gave
to each House the power to determine or to judge the
qualifications, and so forth, of its own Members? [ Footnote 2/22 ]"

															"Mr. MURDOCK. I construe the term 'judge' to mean what it is
held to mean in its common, ordinary usage. My understanding of the
definition of the Page 395 U. S. 557 word 'judge,' as a verb, is this: when we judge of a thing, it
is supposed that the rules are laid out; the law is there for us to
look at and to apply to the facts."

															"But whoever heard the word 'judge' used as meaning the power to
add to what already is the law? [ Footnote 2/23 ]"

															It was also suggested from the floor that the enumerated
qualifications in § 3 were only a minimum which the Senate could
supplement, and that the Founding Fathers so intended by using
words of the negative. To which Senator Murdock replied --

															"Mr. President, I think it is the very distinguished and able
Senator from Georgia who makes the contention that the
constitutional provisions relating to qualifications, because they
are stated in the negative -- that is, 'no person shall be a
Senator' -- are merely restrictions or prohibitions on the State;
but -- and I shall read it later on -- when we read what Madison
said, when we read what Hamilton said, when we read what the other
framers of the Constitution said on that question, there cannot be
a doubt as to what they intended and what they meant. [ Footnote 2/24 ]"

															" * * * *" "Madison knew that the qualifications should be contained in the
Constitution, and not left to the whim and caprice of the
legislature. [ Footnote 2/25 ]"

															" * * * *" "Bear that in mind, that the positive or affirmative phraseology
was not changed to the negative by debate or by amendment in the
convention, but it Page 395 U. S. 558 was changed by the committee of which Madison was a member, the
committee on style. [ Footnote
2/26 ]"

															The Senate was nonetheless troubled by the suggestion that the
Constitution compelled it to accept anyone whom the people might
elect, no matter how egregious and even criminal his behavior. No
need to worry, said Murdock. It is true that the Senate cannot
invoke its majority power to "judge" under Art. I, § 5, cl. 1, as a
device for excluding men elected by the people who possess the
qualifications enumerated by the Constitution. But it does have the
power under Art. I, § 5, cl. 2, to expel anyone it designates by a
two-thirds vote. Nonetheless, he urged the Senate not to bypass the
two-thirds requirement for expulsion by wrongfully invoking its
power to exclude. [ Footnote
2/27 ]

															"Mr. LUCAS. . . . The position the Senator from Utah takes is
that it does not make any difference what a Senator does in the way
of crime, that, whenever he is elected by the people of his State,
comes here with bona fide credentials, and there is no
fraud in the election, the Senate cannot refuse to give him the
oath. That is the position the Senator takes?"

															"Mr. MURDOCK. That is my position, yes. [ Footnote 2/28 ]"

															" * * * *" "My position is that we do not have the right to exclude anyone
who comes here clothed with the proper credentials and possessing
the constitutional qualifications. My position is that we do not
have Page 395 U. S. 559 the right under the provision of the Constitution to which the
Senator from Florida referred, to add to the qualifications. My
position is that the State is the sole judge of the intellectual
and the moral qualifications of the representatives it sends to
Congress. [ Footnote 2/29 ]"

															"MR. MURDOCK [quoting Senator Philander Knox]. 'I know of no
defect in the plain rule of the Constitution for which I am
contending. . . . I cannot see that any danger to the Senate lies
in the fact that an improper character cannot be excluded without a
two-thirds vote. It requires the unanimous vote of a jury to
convict a man accused of crime; it should require, and I believe
that it does require, a two-thirds vote to eject a Senator from his
position of honor and power, to which he has been elected by a
sovereign State.' [ Footnote
2/30 ]"

															Thus, after a year of debate, on March 27, 1942, the Senate
overruled the recommendation of its committee and voted 52 to 30 to
seat Langer.

															I believe that Senator Murdock stated the correct constitutional
principle governing the present case.

															[ Footnote 2/1 ]

															U.S.Const., Art. I, § 2, cl. 2:

															"No Person shall be a Representative who shall not have attained
to the age of twenty five Years, and been seven Years a Citizen of
the United States, and who shall not, when elected, be an
Inhabitant of that State in which he shall be chosen."

															[ Footnote 2/2 ]

															The Constitutional Convention had the occasion to consider
several proposals for giving Congress discretion to shape its own
qualifications for office and explicitly rejected them. James
Madison led the opposition by arguing that such discretion would
be

															"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."

															2 M Farrand, Records of the Federal Convention of 1787, pp.
249-250 (1911). Alexander Hamilton echoed that same conclusion:

															"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, No. 60, p. 371 (Mentor ed.1961). And so,
too, the early Congress of 1807 decided to seat
Representative-elect William McCreery on the ground that its power
to "judge" was limited by the enumerated qualifications.

															"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. . . . 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."

															17 Annals of Cong. 872 (1807) (remarks of Rep. Findley, Chairman
of House Committee of Elections). Constitutional scholars of two
centuries have reaffirmed the principle that congressional power to
"judge" the qualifications of its members is limited to those
enumerated in the Constitution. 1 J. Story, Commentaries on the
Constitution 462 (5th ed. 1891); C. Warren, The Making of the
Constitution 420-426 (1928). See also remarks by Emmanuel
Celler, Chairman of the House Select Committee which inquired into
the qualifications of Adam Clayton Powell, Jr., and which
recommended seating him:

															"The Constitution lays down three qualifications for one to
enter Congress -- age, inhabitancy, citizenship. Mr. Powell
satisfies all three. The House cannot add to these
qualifications."

															113 Cong.Rec. 4998.

															[ Footnote 2/3 ] Baker v. Carr, 369 U. S. 186 , 369 U.S. 242 , n. 2
(DOUGLAS, J., concurring).

															[ Footnote 2/4 ]

															The question whether Congress has authority under the
Constitution to add to enumerated qualifications for office is
itself a federal question within the particular expertise of this
Court. Baker v. Carr, 369 U. S. 186 , 369 U. S. 211 .
Where that authority has been exceeded, redress may be properly
sought here. Marbury v.
Madison , 1 Cranch 137. Congress itself suspected no
less in deciding to exclude Rep. Powell:

															"[C]ases may readily be postulated where the action of a House
in excluding or expelling a Member may directly impinge upon rights
under other provisions of the Constitution. In such cases, the
unavailability of judicial review may be less certain. Suppose, for
example, that a Member was excluded or expelled because of his
religion or race, contrary to the equal protection clause, or for
making an unpopular speech protected by the first amendment. . . .
[E]xclusion of the Member-elect on grounds other than age,
citizenship, or inhabitancy could raise an equally serious
constitutional issue."

															H.R.Rep. No. 27, 90th Cong., 1st Sess., 30 (1967). See
also 113 Cong.Rec. 4994.

															[ Footnote 2/5 ]

															Case of Victor Berger, 6 C. Cannon, Precedents of the House of
Representatives of the United States § 56 (1935).

															[ Footnote 2/6 ] Id. at § 122.

															[ Footnote 2/7 ] See, e.g., Bond v. Floyd, 385 U.
S. 116 .

															[ Footnote 2/8 ]

															1 A. Hinds, Precedents of the House of Representatives of the
United States § 481 (1907).

															[ Footnote 2/9 ]

															113 Cong.Rec.1997.

															[ Footnote 2/10 ]

															S.Doc. No. 71 on Senate Election, Expulsion and Censure Cases
from 1789 to 1960, 87th Cong., 2d Sess., 140 (1962).

															[ Footnote 2/11 ]

															Hearings on A Protest to the Seating of William Langer, before
the Senate Committee on Privileges and Elections, 77th Cong., 1st
Sess., 820 (Nov. 3, 18, 1941) (hereinafter Hearings).

															[ Footnote 2/12 ]

															Hearings 821.

															[ Footnote 2/13 ]

															Hearings 820.

															[ Footnote 2/14 ]

															7 Cong.Rec. 3-4 (1941).

															[ Footnote 2/15 ]

															S.Rep. No. 1010, 77th Cong., 2d Sess. (1942).

															[ Footnote 2/16 ]

															It was alleged that he had conspired as Governor to have
municipal and county bonds sold to a friend of his who made a
profit of $300,000 on the purchase, and purportedly rebated as much
as $56,000 to Langer himself. Hearings 822-823.

															[ Footnote 2/17 ]

															At the retrial of his conviction for conspiring to interfere
with the enforcement of federal law, he was said to have paid money
to have a friend of his, Judge Wyman, be given control of the
litigation, and to have "meddled" with the jury. Hearings 20-42,
120-130.

															[ Footnote 2/18 ]

															He was charged as a lawyer with having accepted $2,000 from the
mother of a boy in prison on the promise that he would obtain his
pardon when he knew, in fact, that a pardon was out of the
question. He was also said to have counseled a defendant-client of
his to marry the prosecution's chief witness in order to prevent
her from testifying against him. And finally, it was suggested that
he once bought an insurance policy during trial from one of the
jurors sitting in judgment of his client. Hearings 820-830.

															[ Footnote 2/19 ]

															87 Cong.Rec. 3-4, 460 (1941); 88 Cong.Rec. 822, 828, 1253, 2077,
2165, 2239, 2328, 2382, 2412, 2472, 2564, 2630, 2699, 2759, 2791,
2801, 2842, 2858, 2914, 2917, 2959, 2972, 2989, 3038, 3051, 3065,
5668 (1942).

															[ Footnote 2/20 ]

															88 Cong.Rec. 2401.

															[ Footnote 2/21 ] Ibid. [ Footnote 2/22 ]

															88 Cong.Rec. 2474.

															[ Footnote 2/23 ] Ibid. [ Footnote 2/24 ] Ibid. [ Footnote 2/25 ]

															88 Cong.Rec. 2483.

															[ Footnote 2/26 ]

															88 Cong.Rec. 2484.

															[ Footnote 2/27 ]

															Although the House excluded Adam Clayton Powell by over
two-thirds vote, it was operating on the assumption that only a
majority was needed. For the suggestion that the House could never
have rallied the votes to exclude Powell on the basis of a
two-thirds ground rule, see Note, 14 How.L.J. 162 (1968);
Note, 42 N.Y.U.L.Rev. 716 (1967).

															[ Footnote 2/28 ]

															88 Cong.Rec. 2488.

															[ Footnote 2/29 ]

															88 Cong.Rec. 2490.

															[ Footnote 2/30 ]

															88 Cong.Rec. 2488. Senator Knox of Pennsylvania had defended
Senator-elect Reed Smoot of Utah in 1903 against charges that he
ought to be excluded because of his affiliation with a group
(Mormons) that countenanced polygamy. S.Doc. No. 71, 87th Cong., 2d
Sess., 97.

															MR. JUSTICE STEWART, dissenting.

															I believe that events which have taken place since certiorari
was granted in this case on November 18, 1968, have rendered it
moot, and that the Court should therefore refrain from deciding the
novel, difficult, and delicate constitutional questions which the
case presented at its inception. Page 395 U. S. 560 I The essential purpose of this lawsuit by Congressman Powell and
members of his constituency was to regain the seat from which he
was barred by the 90th Congress. That purpose, however, became
impossible of attainment on January 3, 1969, when the 90th Congress
passed into history and the 91st Congress came into being. On that
date, the petitioners' prayer for a judicial decree restraining
enforcement of House Resolution No. 278 and commanding the
respondents to admit Congressman Powell to membership in the 90th
Congress became incontestably moot.

															The petitioners assert that actions of the House of
Representatives of the 91st Congress have prolonged the controversy
raised by Powell's exclusion and preserved the need for a judicial
declaration in this case. I believe, to the contrary, that the
conduct of the present House of Representatives confirms the
mootness of the petitioners' suit against the 90th Congress. Had
Powell been excluded from the 91st Congress, he might argue that
there was a "continuing controversy" concerning the exclusion
attacked in this case. [ Footnote
3/1 ] And such an argument might be sound even though the
present House of Representatives is a distinct legislative body,
rather than a continuation of its predecessor, [ Footnote 3/2 ] and though any grievance Page 395 U. S. 561 caused by conduct of the 91st Congress is not redressable in
this action. But on January 3, 1969, the House of Representatives
of the 91st Congress admitted Congressman Powell to membership, and
he now sits as the Representative of the 18th Congressional
District of New York. With the 90th Congress terminated and Powell
now a member of the 91st, it cannot seriously be contended that
there remains a judicial controversy between these parties over the
power of the House of Representatives to exclude Powell and the
power of a court to order him reseated. Understandably, neither the
Court nor the petitioners advance the wholly untenable proposition
that the continuation of this case can be founded on the infinitely
remote possibility that Congressman Powell, or any other
Representative, may someday be excluded for the same reasons or in
the same manner. And because no foreseeable possibility of such
future conduct exists, the respondents have met their heavy burden
of showing that "subsequent events made it absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to
recur." United States v. Concentrated Phosphate Export
Assn., 393 U. S. 199 , 393 U. S. 203 .
[ Footnote 3/3 ]

															The petitioners further argue that this case cannot be deemed
moot because of the principle that "the voluntary abandonment of a
practice does not relieve a court of adjudicating its legality. . .
." Gray v.
Sanders , 372 Page 395 U. S. 562 U.S. 368, 372 U. S. 376 .
[ Footnote 3/4 ] I think it manifest,
however, that this principle and the cases enunciating it have no
application to the present case. In the first place, this case does
not involve "the voluntary abandonment of a practice." Rather, it
became moot because of an event over which the respondents had no
control -- the expiration of the 90th Congress. Moreover, unlike
the cases relied on by the petitioners, there has here been no
ongoing course of conduct of indefinite duration against which a
permanent injunction is necessary. Thus, it cannot be said of the
respondents' actions in this case, as it was of the conduct sought
to be enjoined in Gray, for example, that "the practice is
deeply rooted and longstanding," ibid., or that, without
judicial relief, the respondents would be "free to return to
[their] old ways." United States v. W. T. Grant Co., 345 U. S. 629 , 345 U. S. 632 .
[ Footnote 3/5 ] Finally, and Page 395 U. S. 563 most important, the "voluntary abandonment" rule does not
dispense with the requirement of a continuing controversy, nor
could it under the definition of the judicial power in Article III
of the Constitution. Voluntary cessation of unlawful conduct does
make a case moot "if the defendant can demonstrate that there
is no reasonable expectation that the wrong will be repeated.'" Id. at 345 U. S. 633 .
[ Footnote 3/6 ] Since that is the
situation here, the case would be moot even if it could be said
that it became so by the House's "voluntary abandonment" of its
"practice" of excluding Congressman Powell. The petitioners' proposition that conduct of the 91st Congress
has perpetuated the controversy is based on the fact that House
Resolution No. 2 -- the same resolution by which the House voted to
seat Powell -- fined him $25,000 and provided that his seniority
was to commence as of the date he became a member of the 91st
Congress. [ Footnote 3/7 ] That
punishment, it is said, "arises out of the Page 395 U. S. 564 prior actions of the House which originally impelled this
action." It is indisputable, however, that punishment of a House
member involves constitutional issues entirely distinct from those
raised by exclusion, [ Footnote 3/8 ]
and that a punishment in one Congress is in no legal sense a
"continuation" of an exclusion from the previous Congress. A
judicial determination that the exclusion was improper would have
no bearing on the constitutionality of the punishment, nor any
conceivable practical impact on Powell's status in the 91st
Congress. It is thus clear that the only connection between the
exclusion by the 90th Congress and the punishment by the 91st is
that they were evidently based on the same asserted derelictions of
Congressman Powell. But this action was not brought to exonerate
Powell or to expunge the legislative findings of his wrongdoing;
its only purpose was to restrain the action taken in consequence of
those findings -- Powell's exclusion.

															Equally without substance is the petitioners' contention that
this case is saved from mootness by application of the asserted
"principle" that a case challenging allegedly unconstitutional
conduct cannot be rendered moot Page 395 U. S. 565 by further unconstitutional conduct of the defendants. Under
this hypothesis, it is said that the

															"Court cannot determine that the conduct of the House on January
3, 1969, has mooted this controversy without inferentially, at
least, holding that the action of the House of that day was legal
and constitutionally permissible."

															If there is in our jurisprudence any doctrine remotely
resembling the petitioners' theory -- which they offer without
reference to any authority -- it has no conceivable relevance to
this case. For the events of January 3, 1969, that made this case
moot were the termination of the 90th Congress and Powell's seating
in the 91st, not the punishment which the petitioners allege to
have been unconstitutional. That punishment is wholly irrelevant to
the question of mootness, and is in no wise before the Court in
this case. II The passage of time and intervening events have, therefore, made
it impossible to afford the petitioners the principal relief they
sought in this case. If any aspect of the case remains alive, it is
only Congressman Powell's individual claim for the salary of which
he was deprived by his absence from the 90th Congress. [ Footnote 3/9 ] But even if that claim can be
said to prevent this controversy from being moot, which I doubt,
there is no need to reach the fundamental constitutional issues
that the Court today undertakes to decide.

															This Court has not in the past found that an incidental claim
for back pay preserves the controversy between a legislator and the
legislative body which evicted him, once the term of his eviction
has expired. Alejandrino v. Quezon, 271 U.
S. 528 , was a case nearly identical to Page 395 U. S. 566 that before the Court today. The petitioner was a member of the
Senate of the Philippines who had been suspended for one year for
assaulting a colleague. He brought an action in the Supreme Court
of the Philippines against the elected members of the Senate
[ Footnote 3/10 ] and its officers
and employees (the President, Secretary, Sergeant at Arms, and
Paymaster), seeking a writ of mandamus and an injunction restoring
him to his seat and to all the privileges and emoluments of office.
The Supreme Court of the Philippines dismissed the action for want
of jurisdiction, and Alejandrino brought the case here, [ Footnote 3/11 ] arguing that the
suspension was not authorized by the Philippine Autonomy Act, a
statute which incorporated most of the provisions of Article I of
the United States Constitution. [ Footnote 3/12 ] Page 395 U. S. 567 Because the period of the suspension had expired while the case
was pending on certiorari, a unanimous Court, in an opinion by
Chief Justice Taft, vacated the judgment and remanded the case with
directions to dismiss it as moot. To Alejandrino's claim that his
right to back pay kept the case alive, the Court gave the following
answer, which, because of its particular pertinency to this case, I
quote at length:

															"It may be suggested, as an objection to our vacating the action
of the court below, and directing the dismissal of the petition as
having become a moot case, that, while the lapse of time has made
unnecessary and futile a writ of mandamus to restore Senator
Alejandrino to the Island Senate, there still remains a right on
his part to the recovery of his emoluments, which were withheld
during his suspension, and that we ought to retain the case for the
purpose of determining whether he may not have a mandamus for this
purpose. . . . It is difficult for the Court to deal with this
feature of the case, which is really only a mere incident to the
main question made in the petition and considered in the able and
extended brief of counsel for the petitioner, and the only brief
before us. That brief is not in any part of it directed to the
subject of emoluments, nor does it refer us to any statute or to
the rules of the Senate by which the method of paying Senators'
salaries is provided, or in a definite way describe the duties of
the officer or officers or committee charged with the ministerial
function of paying them."

															" * * * *" ". . . the remedy of the Senator would seem to be by mandamus to
compel such official in the discharge of his ministerial duty to
pay him the salary due, and the presence of the Senate as a party
would be Page 395 U. S. 568 unnecessary. Should that official rely upon the resolution of
the Senate as a reason for refusing to comply with his duty to pay
Senators, the validity of such a defense and the validity of the
resolution might become a judicial question affecting the personal
right of the complaining Senator, properly to be disposed of in
such action, but not requiring the presence of the Senate as a
party for its adjudication. The right of the petitioner to his
salary does not therefore involve the very serious issue raised in
this petition as to the power of the Philippine Supreme Court to
compel by mandamus one of the two legislative bodies constituting
the legislative branch of the Government to rescind a resolution
adopted by it in asserted lawful discipline of one of its members
for disorder and breach of privilege. We think, now that the main
question as to the validity of the suspension has become moot, the
incidental issue as to the remedy which the suspended Senator may
have in recovery of his emoluments, if illegally withheld, should
properly be tried in a separate proceeding against an executive
officer or officers as described. As we are not able to derive from
the petition sufficient information upon which properly to afford
such a remedy, we must treat the whole cause as moot, and act
accordingly. This action on our part of course is without prejudice
to a suit by Senator Alejandrino against the proper executive
officer or committee by way of mandamus or otherwise to obtain
payment of the salary which may have been unlawfully withheld from
him."

															271 U.S. at 271 U. S. 533 ,
534-535. [ Footnote 3/13 ] Page 395 U. S. 569 Both of the factors on which the Court relied in Alejandrino are present in this case. Indeed, the salary
claim is an even more incidental and subordinate aspect of this
case than it was of Alejandrino. [ Footnote 3/14 ] And the availability of effective relief
for that claim against any of the present respondents is far from
certain. As in Alejandrino, the briefs and memoranda
submitted by the parties in this case contain virtually no
discussion of this question -- the only question of remedy
remaining in the case. It appears from relevant provisions of law,
however, that the Sergeant at Arms of the House -- an official
newly Page 395 U. S. 570 elected by each Congress [ Footnote
3/15 ] -- is responsible for the retention and disbursement to
Congressmen of the funds appropriated for their salaries. These
funds are payable from the United States Treasury [ Footnote 3/16 ] upon requisitions presented by the
Sergeant at Arms, who is entrusted with keeping the books and
accounts "for the compensation and mileage of Members." [ Footnote 3/17 ] A Congressman who has
presented his credentials and taken the oath of office [ Footnote 3/18 ] is entitled to be paid
monthly on the basis of certificates of the Clerk [ Footnote 3/19 ] and Speaker of the House. [ Footnote 3/20 ] Powell's prayer for a
mandamus and an injunction against the Sergeant at Arms is
presumably based on this statutory scheme.

															Several important questions remain unanswered, however, on this
record. Is the Sergeant at Arms the only necessary defendant? If
so, the case is surely moot as to the other respondents, including
the House members, and they should be dismissed as parties on that
ground, rather than after resolution of difficult constitutional
questions under the Speech or Debate Clause. But it is far from
clear that Powell has an appropriate or adequate remedy against the
remaining respondents. For if the Speaker does not issue the
requisite certificates and the House does not rescind Resolution
No. 278, can the House agents be enjoined to act in direct
contravention of the orders of their employers? Moreover, the
office of Sergeant at Arms of the 90th Congress has now expired,
and the present Sergeant at Arms serves the 91st Congress. If he
were made a party in that capacity, would he have the authority --
or could the 91st Congress Page 395 U. S. 571 confer the authority -- to disburse money for a salary owed to a
Representative in the previous Congress, particularly one who never
took the oath of office? Presumably funds have not been
appropriated to the 91st Congress or requisitioned by its Sergeant
at Arms for the payment of salaries to members of prior Congresses.
Nor is it ascertainable from this record whether money appropriated
for Powell's salary by the 90th Congress, if any, remains at the
disposal of the current House and its Sergeant at Arms. [ Footnote 3/21 ]

															There are, then, substantial questions as to whether, on his
salary claim, Powell could obtain relief against any or all of
these respondents. On the other hand, if he was entitled to a
salary as a member of the 90th Congress, he has a certain and
completely satisfactory remedy in an action for a money judgment
against the United States in the Court of Claims. [ Footnote 3/22 ] While that court could not have
ordered Powell seated or entered a declaratory judgment on the
constitutionality of his exclusion, [ Footnote 3/23 ] it Page 395 U. S. 572 is not disputed that the Court of Claims could grant him a money
judgment for lost salary on the ground that his discharge from the
House violated the Constitution. I would remit Congressman Powell
to that remedy, and not simply because of the serious doubts about
the availability of the one he now pursues. Even if the mandatory
relief sought by Powell is appropriate and could be effective, the
Court should insist that the salary claim be litigated in a context
that would clearly obviate the need to decide some of the
constitutional questions with which the Court grapples today, and
might avoid them altogether. [ Footnote 3/24 ] In an action in the Court of Claims for
a money judgment against the United States, there would be no
question concerning the impact of the Speech or Debate Clause on a
suit against members of the House of Representatives and their
agents, and questions of jurisdiction and justiciability would, if
raised at all, be in a vastly different and more conventional
form.

															In short, dismissal of Powell's action against the legislative
branch would not in the slightest prejudice his money claim,
[ Footnote 3/25 ] and it would
avoid the necessity of deciding Page 395 U. S. 573 constitutional issues which, in the petitioners' words, "touch
the bedrock of our political system [and] strike at the very heart
of representative government." If the fundamental principles
restraining courts from unnecessarily or prematurely reaching out
to decide grave and perhaps unsettling constitutional questions
retain any vitality, see Ashwander v. TVA, 297 U.
S. 288 , 297 U. S.
346 -348 (Brandeis, J., concurring), surely there have
been few cases more demanding of their application than this one.
And those principles are entitled to special respect in suits, like
this suit, for declaratory and injunctive relief, which it is
within a court's broad discretion to withhold.

															"We have cautioned against declaratory judgments on issues of
public moment, even falling short of constitutionality, in
speculative situations." Public Affairs Press v. Rickover, 369 U.
S. 111 , 369 U. S.
112 .

															"Especially where governmental action is involved, courts should
not intervene unless the need for equitable relief is clear, not
remote or speculative." Eccles v. Peoples Bank of Lakewood Village, 333 U. S. 426 , 333 U. S.
431 .

															If this lawsuit is to be prolonged, I would, at the very least,
not reach the merits without ascertaining that a decision can lead
to some effective relief. The Court's remand for determination of
that question implicitly recognizes that there may be no remaining
controversy between petitioner Powell and any of these respondents
redressable by a court, and that its opinion today may be wholly
advisory. But I see no good reason for any court even to pass on
the question of the availability Page 395 U. S. 574 of relief against any of these respondents. Because the
essential purpose of the action against them is no longer
attainable and Powell has a fully adequate and far more appropriate
remedy for his incidental backpay claim, I would withhold the
discretionary relief prayed for and terminate this lawsuit now.
Powell's claim for salary may not be dead, but this case against
all these respondents is truly moot. Accordingly, I would vacate
the judgment below and remand the case with directions to dismiss
the complaint.

															[ Footnote 3/1 ] See, e.g., United States v. Concentrated Phosphate Export
Assn., 393 U. S. 199 , 393 U. S.
202 -304; Carroll v. President and Commissioners of
Princess Anne, 393 U. S. 175 , 393 U. S.
178 -179.

															[ Footnote 3/2 ] See Gojack v. United States, 384 U.
S. 702 , 384 U. S. 707 ,
n. 4 ("Neither the House of Representatives nor its committees are
continuing bodies"); McGrain v. Daugherty, 273 U.
S. 135 , 273 U. S. 181 .
Forty-one of the present members of the House were not members of
the 90th Congress, and two of the named defendants in this action,
Messrs. Moore and Curtis, are no longer members of the House of
Representatives. Moreover, the officer employees of the House, such
as the Sergeant at Arms, are reelected by each new Congress. See 395
U.S. 486 fn3/15|>n. 15, infra. [ Footnote 3/3 ] See also United States v. W. T. Grant Co., 345 U.
S. 629 , 345 U. S. 633 ; United States v. Aluminum Co. of America, 148 F.2d 416,
448. The Court has only recently concluded that there was no
"controversy" in Golden v. Zwickler, 394 U.
S. 103 , because of "the fact that it was most unlikely
that the Congressman would again be a candidate for Congress." Id. at 394 U. S. 109 .
It can hardly be maintained that the likelihood of the House of
Representatives' again excluding Powell is any greater.

															[ Footnote 3/4 ] See also United States v. W. T. Grant Co., 345 U.
S. 629 , 345 U. S.
632 -633; Local 74, United Bro. of Carpenters &
Joiners v. NLRB, 341 U. S. 707 , 341 U. S. 715 ; Walling v. Helmerich & Payne, Inc., 323 U. S.
37 , 323 U. S. 43 ; Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S. 327 ; United States v. Trans-Missouri Freight Assn., 166 U. S. 290 , 166 U. S.
307 -310.

															[ Footnote 3/5 ]

															With the exception of Gray, the "continuing
controversy" cases relied on by the petitioners were actions by the
Government or its agencies to halt illegal conduct of the
defendants, and, by example, of others engaged in similar conduct. See cases cited supra, nn. 395
U.S. 486 fn3/1|>1, 395
U.S. 486 fn3/3|>3, 395
U.S. 486 fn3/4|>4. The principle that voluntary abandonment
of an illegal practice will not make an action moot is especially,
if not exclusively, applicable to such public law enforcement
suits.

															"Private parties may settle their controversies at any time, and
rights which a plaintiff may have had at the time of the
commencement of the action may terminate before judgment is
obtained or while the case is on appeal, and, in any such case, the
court, being informed of the facts, will proceed no further in the
action. Here, however, there has been no extinguishment of the
rights . . . of the public, the enforcement of which the Government
has endeavored to procure by a judgment of a court. . . . The
defendants cannot foreclose those rights, nor prevent the assertion
thereof by the Government as a substantial trustee for the public
under the act of Congress, by [voluntary cessation of the
challenged conduct]." United States v. Trans-Missouri Freight Assn., 166 U.S.
at 166 U. S. 309 .
The considerations of public enforcement of a statutory or
regulatory scheme which inhere in those cases are not present in
this litigation.

															[ Footnote 3/6 ]

															Certainly, in every decision relied on by the petitioners, the
Court did not reject the mootness argument solely on the ground
that the illegal practice had been voluntarily terminated. In each,
it proceeded to determine that there was, in fact, a continuing
controversy.

															[ Footnote 3/7 ]

															House Resolution No. 2 provided in pertinent part:

															"(2) That, as punishment, Adam Clayton Powell be, and he hereby
is, fined the sum of $25,000, said sum to be paid to the Clerk to
be disposed of by him according to law. The Sergeant at Arms of the
House is directed to deduct $1,150 per month from the salary
otherwise due the said Adam Clayton Powell, and pay the same to
said Clerk until said $25,000 fine is fully paid."

															"(3) That, as further punishment, the seniority of the said Adam
Clayton Powell in the House of Representatives commence as of the
date he takes the oath as a Member of the 91st Congress."

															The petitioners' argument that the case is kept alive by
Powell's loss of seniority, see ante at 395 U. S. 496 ,
is founded on the mistaken assumption that the loss of seniority is
attributable to the exclusion from the 90th Congress, and that
seniority would automatically be restored if that exclusion were
declared unconstitutional. But the fact is that Powell was stripped
of seniority by the action of the 91st Congress, action which is
not involved in this case and which would not be affected by
judicial review of the exclusion from the 90th Congress. Moreover,
even if the conduct of the 91st Congress were challenged in this
case, the Court would clearly have no power whatsoever to pass upon
the propriety of such internal affairs of the House of
Representatives.

															[ Footnote 3/8 ]

															Article I, § 5, of the Constitution specifically empowers each
House to "punish its Members for disorderly Behaviour."

															[ Footnote 3/9 ]

															The salary claim is personal to Congressman Powell, and the
other petitioners therefore clearly have no further interest in
this lawsuit.

															[ Footnote 3/10 ]

															The Philippines Senate was composed of 24 Senators, 22 of whom
were elected and two of whom were appointed by the Governor
General. Alejandrino was one of the two appointees. See 271 U.S. at 271 U. S.
531 -532.

															[ Footnote 3/11 ]

															Under the Philippine Autonomy Act, 39 Stat. 545, this Court had
jurisdiction to examine by writ of error the final judgments and
decrees of the Supreme Court of the Philippine Islands in cases
under the Constitution or statutes of the United States. A
subsequent statute substituted the writ of certiorari. 39 Stat.
726.

															[ Footnote 3/12 ]

															"Section 18 [of the Autonomy Act] provides that the Senate and
House respectively shall be the sole judges of the elections,
returns and qualifications of their elective members, and each
House may determine the rules of its proceedings, punish its
members for disorderly behavior, and, with the concurrence of
two-thirds, expel an elective member. The Senators and
Representatives shall receive an annual compensation for their
services to be ascertained by law and paid out of the Treasury of
the Philippine Islands. Senators and Representatives 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."

															271 U.S. at 271 U. S.
532 .

															[ Footnote 3/13 ]

															The petitioners rely on the following passage from Bond v.
Floyd, 385 U. S. 116 , 385 U. S. 128 ,
n. 4, as dispositive of their contention that the salary claim
prevents this case from being moot:

															"A question was raised in oral argument as to whether this case
might not be moot, since the session of the House which excluded
Bond was no longer in existence. The State has not pressed this
argument, and it could not do so, because the State has stipulated
that, if Bond succeeds on this appeal, he will receive back salary
for the term from which he was excluded."

															I do not believe that this offhand dictum in Bond is
determinative of the issue of mootness in this case. In the first
place, as the Court in Bond noted, it was not there
contended by any party that the case was moot. Moreover, contrary
to the implication of the statement, the legislative term from
which Bond was excluded had not ended at the time of the Court's
decision. (The Court's decision was announced on December 5, 1966;
Bond's term of office expired on December 31, 1966.) In any event,
he had not been seated in a subsequent term, so the continuing
controversy had not been rendered clearly moot by any action of the
Georgia House, as it has here by the House of Representatives of
the 91st Congress. No one suggested in Bond that the money
claim was the only issue left in the case. Furthermore, the
considerations which governed the Court's decision in Alejandrino were simply not present in Bond. Because of the State's stipulation, there was no doubt, as there is
here, see infra at 395 U. S.
570 -571, that the Court's decision would lead to
effective relief with respect to Bond's salary claim. And finally,
there was no suggestion that Bond had an alternative remedy, as
Powell has here, see infra at 395 U. S.
571 -572, by which he could obtain full relief without
requiring the Court to decide novel and delicate constitutional
issues.

															[ Footnote 3/14 ]

															Alejandrino was the only petitioner in the case, and, since he
was an appointed Senator, it appears that there was no group of
voters who remained without representation of their choice in the
Senate during his suspension.

															[ Footnote 3/15 ]

															Act of Oct. 1, 1890, § 6, 26 Stat. 646, 2 U.S.C. § 83.

															[ Footnote 3/16 ]

															U.S.Const.Art. I, § 6; 2 U.S.C. § 47.

															[ Footnote 3/17 ]

															2 U.S.C. §§ 80, 78.

															[ Footnote 3/18 ]

															2 U.S.C. § 35.

															[ Footnote 3/19 ]

															2 U.S.C. § 34.

															[ Footnote 3/20 ]

															2 U.S.C. § 48.

															[ Footnote 3/21 ]

															The respondents allege without contradiction that the Sergeant
at Arms does not have sufficient funds to pay Congressman Powell's
back salary claims. Separate appropriations for the salaries of
Congressmen are made in each fiscal year, see, e.g., 80
Stat. 354, 81 Stat. 127, 82 Stat. 398, and, according to the
respondents, "it is the custom of the Sergeant to turn back to the
Treasury all unexpended funds at the end of each fiscal year."
Thus, the only funds still held by the Sergeant are said to be
those appropriated for the present fiscal year commencing July 1,
1968.

															[ Footnote 3/22 ]

															"The Court of Claims shall have jurisdiction to render judgment
upon any claim against the United States founded either upon the
Constitution, or any Act of Congress. . . ."

															28 U.S.C. § 1491. The district courts have concurrent
jurisdiction over such claims only in amounts less than $10,000. 28
U.S.C. § 1346.

															[ Footnote 3/23 ] United States v. King, ante, p. 395 U. S. 1 . The
petitioners suggest that the inability of the Court of Claims to
grant such relief might make any remedy in that court inadequate.
But since Powell's only remaining interest in the case is to
collect his salary, a money judgment in the Court of Claims would
be just as good as, and probably better than, mandatory relief
against the agents of the House. The petitioners also suggest that
the Court of Claims would be unable to grant relief because of the
pendency of Powell's claim in another court, 28 U.S.C. § 1500, but
that would, of course, constitute no obstacle if, as I suggest, the
Court should order this action dismissed on grounds of
mootness.

															[ Footnote 3/24 ]

															It is possible, for example, that the United States, in such an
action, would not deny Powell's entitlement to the salary, but
would seek to offset that sum against the amounts which Powell was
found by the House to have appropriated unlawfully from Government
coffers to his own use.

															[ Footnote 3/25 ]

															Relying on Bank of Mann v. England, 385 U. S.
99 , 385 U. S. 101 ,
the petitioners complain that it would impose undue hardship on
Powell to force him to "start all over again" now that he has come
this far in the present suit. In view of the Court's remand of this
case for further proceedings with respect to Powell's remedy, it is
at least doubtful that remitting him to an action in the Court of
Claims would entail much more cost and delay than will be involved
in the present case. And the inconvenience to litigants of further
delay or litigation has never been deemed to justify departure from
the sound principle, rooted in the Constitution, that important
issues of constitutional law should be decided only if necessary
and in cases presenting concrete and living controversies.

Summary: The case of Powell v. McCormack in 1969 dealt with the exclusion of Powell, a duly elected member of the House of Representatives for the 90th Congress, from taking his seat due to charges of misappropriation of funds and abuse of the legal process. Powell and voters from his district sued House members and officials, arguing that the exclusion violated the Constitution. The lower courts dismissed the case, but the Supreme Court held that the case was not moot as Powell had a viable claim for back salary. The Court remanded the case for further proceedings on Powell's remedy, suggesting that a money judgment in the Court of Claims would be a better option than mandatory relief against House agents.