Was John Marshall Unconstitutional?

June 25th, 2010

Steve Rappoport, one of my favorite commenters, made an insightful comment, that may show that John Marshall may have been unconstitutionally serving as both a Representative and Secretary of State at the same time in violation of the Ineligibility Clause. Steve writes:

I did not realize that. But Wikipedia states: “Marshall was Chief Justice of the United States, serving from January 31, 1801, until his death in 1835. He served in the United States House of Representatives from March 4, 1799, to June 7, 1800, and was Secretary of State under President John Adams from June 6, 1800, to March 4, 1801.”

If this is correct, for one day he served in both an Article I and an Article II capacity.

The ineligibility clause provides:

“No Person holding any Office under the United States, shall be a Member of either house during his Continuance in Office.”

In other words, a person cannot serve in Article I and Article II at the same time. Yet it seems, that from June 6, 1800-June 7, 1800, John Marshall served as both a Representative in Congress and a Secretary of State. This would seem to violate the ineligibility clause. Did anyone raise any questions at the time?

Steve comments further:

Is it not interesting that early practice in the new Republic did not always accord with modern-era thought? How could the Alien and Sedition Acts be adopted? Who counted as a citizen (and how was citizenship determined)? And this oops moment, among other things.

So was John Marshall unconstitutional for a few days in 1800?

Update: I was having a debate with a friend about the meaning of the ineligibility clause, and I thought it may be enlightening to bring this discussion online. What exactly does this clause mean?

Does it forbid members of Congress from being appointed to executive positions, as was the case with Marshall? Or does it prevent executive branch officials for running for Congress?

My friend said the clause prevents executive officers from running for Congress, because there would be a risk of abuse of office to get elected.

I disagree. I think the real threat comes from the President rewarding members of Congress with executive branch positions in exchange for buying votes in the Congress. This accords with the fear of a strong executive bullying the representatives of the people. This also reflects the fear of the Framers of a Parliamentary scheme of government, where the King rewarded members of parliament with cushy royal positions.

Steve Calabresi and Joan Larsen wrote a great article on this topic that I read while in law school: Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 CORNELL L. REV. 1045, 1061 (1994).

I think Calabresi and Larsen would tend to agree with my theory. They wrote:

“The purpose of the Incompatibility Clause was to stop the President from using certain kinds of patronage appointments to build support for his programs in Congress. We now consider how well the Incompatibility Clause has actually worked as a constitutional ethics rule in fulfilling this “anticorruption” goal.”

The clause would seem to ban a member of congress being appointed to an article II position–exactly what Marshall did.