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An Inconvenient Text: Will House Members Obey the Constitution They Read Aloud?

Posted by Peter M. Shane on January 5, 2011

It’s wonderful that Members of the House of Representatives are preparing to hear a reading of the Constitution of the United States.  I would enthusiastically echo the hopes of Dahlia Lithwick and Garrett Epps that close attention to such a performance might prompt at least some of our constitutional fundamentalists to appreciate that the document they revere is both imperfect and complex.  Things they hope to find there will be missing.  Things they wish were not there are explicit. Readers of Dahlia’s and Garrett’s essays will find numerous examples to mull over.

I thought, therefore, that I would limit my post today to a single question:  After the reading of the Constitution, will all members of Congress who are military reserve officers or who hold appointments as retired military officer resign their posts?  I ask because, Section 6, Paragraph 2, of Article I states that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  It’s called the Incompatability Clause.  To hold a commission in the armed forces reserves or an appointment as retired military officer is to hold “Office under the United States.”  So, while in Congress, don’t Reserve officers and retired military officers have to resign their executive branch positions?

A group of reservists opposed to the war in Vietnam brought the issue of reserve officers to the fore over 35 years ago, and succeeded at the trial and appellate court levels in getting a declaratory judgment that Members of Congress are ineligible, while in Congress, to hold a Reserve “commission.”  The Supreme Court set aside the judgment on a procedural ground, namely, that the plaintiffs were not injured personally by the asserted violation of the Constitution’s Incompatibility Clause, and were therefore not entitled to sue on the matter in a federal court.

Of course, the fact that individual Americans cannot sue Congress because of procedural hurdles should not keep Congress from doing the right thing, right? 

In a Fourth of July week message last summer, now Rep. Allen West (R-FL), said:  “I believe in our Constitutional Republic which means we are a Nation respecting the rule of law. We must . . . enforce our laws, clearly articulated in the Constitution.”  Does that mean that “Lieutenant Colonel Allen West (US Army, Retired),” as he describes himself on his web site, will now resign that appointment? 

Just asking.

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