It is hard to ignore all of the chatter about the appointment of Roland Burris to the US Senate.  One of the most significant questions I have seen posed about the behavior of the Senate Democrats is whether or not the Senate even has the power to exclude Burris as long as he meets the qualifications given in the Constitution.  I have mostly seen that question answered in the negative by way of citation to Powell v. McCormack, a case decided in 1969 with some strong parallels to the current situation.  Although it does touch strongly on the issue currently before the Senate, I find the Court’s opinion in Powell most interesting for what it has to say about what it means to judge.

The case arises from Article 1, Section 5 of the Constitution which states that

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

On the way to deciding that Powell could not be excluded from taking his seat as long as he satisfied the qualifications set forth in Article 1, Section 2, the Court spent a decent amount of time exploring whether or not the House could add qualifications other than the age, citizenship, and residency requirements given in the Constitution. What is noteworthy is that much of what the Court said about the judging power of Congress is similar in tone and scope to what judicial conservatives say about the judging power of judges.  Nowhere is this more clear than in the words of Senator Murdock of Utah, quoted favorably in Powell by Justice Douglas:

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 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? (88 Cong.Rec. 2474.) (Douglas, J., concurring)

This is stunning from the man who told us that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” (Griswold v. Connecticut)  It is also entirely correct.  Although Senator Murdock was not then talking about the judiciary, the term “judge” is most often associated with the courts as both the title and job of those on the bench.

The majority opinion in Powell is equally clear in its condemnation of Congress exceeding the enumerations set forth in the Constitution.  It would be pleasent indeed if the Court’s tone were carried through to all of the other powers Congress has taken for itself in excess of its other enumerated list (Article 1, Section 8).  Precedent, the Court tells us, would not even be an issue: “That an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date.” (Powell)

It is disappointing, though not surprising, that the Court apparently saw no conflict between limiting the judicial power of politicians — who are answerable to the people — while leaving the judicial power of judges — who are not — even further expanded, all in the name of ensuring “that the people should choose whom they please to govern them.” (Powell, citing Hamilton, 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876))  Regardless, it was nice to see the limited role of judging layed out in such clarity.