The Volokh Conspiracy

or, Part II of Leaving the House. In my last post, I went through the history of devices by which Members have quit their seats in the House of Commons. Not only has a right of resignation never existed at English or British law, but, during the crucial period of American constitutional development, it was not the case that a Member who sought the Chiltern Hundreds would necessarily be granted it.

In this post, I will look at pre-constitutional American practice. I should begin by acknowledging that the historical record relied upon here is thinner than the record for the House of Commons. But as far as I have been able to piece it together, with a single, explicit exception, no pre-constitutional American legislature allowed for resignations as a matter of right.

As historians of the American colonies have noted, colonial American legislatures tended to model themselves — especially in matters related to their procedures and privileges — after the House of Commons. Thus, in several colonies (e.g., Pennsylvania and North Carolina), the election laws provided punishments for elected delegates who did not appear when the legislature was in session, without making any distinction between elected delegates who had been seated and those who had not, or between those who wished to continue as members and those who did not. Other colonies (e.g., New York and South Carolina) provided for the filling of vacancies caused by an enumerated list of causes, and resignation was not listed. And in 1770, the New Jersey legislature and governor quarreled about which of them would accept John Ogden's resignation, but no one asserted that it was effective without someone's accepting it.

The practice of the states in the years between independence and the drafting of the federal Constitution seems to have been the same. A number of state constitutions (e.g., Pennsylvania, Virginia, New York, Vermont) mentioned resignation for executive and judicial officials without any mention of it for legislators.

Indeed, an incident from the Pennsylvania state legislature vividly illustrates the unavailability of resignation. On September 28, 1787 — one day before the expiration of the legislature — a member introduced a two-part resolution for the calling of a state convention to ratify the proposed federal Constitution. The first part, which expressed the Assembly's general desire to call a convention, was considered the morning it was introduced and passed by a vote of forty-three to nineteen. The assembly then adjourned for lunch. When it reconvened to consider the second part — which specified the date and procedures for electing delegates to the ratification convention — all nineteen members who voted against in the morning were absent, leaving the assembly one member short of a quorum. A quorum of the Pennsylvania Assembly consisted of "two-thirds of the whole number of members elected," (emphasis added) meaning that the denominator for quorum purposes did not change when a seat was vacant. The assembly sent its Sergeant out to round up some absent members, which (with the help of a band of concerned citizens) he did. The detained members sought to be excused — a request which the house denied — but they never sought to resign. Given that this all occurred on the final day of the legislature, they had nothing to lose by resigning, if they could. But they never even mentioned it. They knew there was no point in asking permission to resign — it would be refused — and without permission, the resignation would be of no effect.

One state, however, did allow for resignations: Maryland. Its 1776 Constitution specifically provided for the filling of legislative vacancies occasioned by, among other things, resignation.

The Continental Congress seems to have followed the majority rule. Although service in the Continental Congress was distinctly unpleasant, and it often had difficulty mustering a quorum, delegates nevertheless sought leave of the body to retire from it.

It thus seems that, with the sole exception of Maryland, pre-constitutional American legislatures followed the same rule as the House of Commons: Members had no individual right to quit their seats. Rather, if they wished to leave the house, they would need the house's permission to do so.

If you want further documentation of or elaboration on any of the points above, they are summarized from pages 19-28 of the article draft on SSRN. In the next post, I'll discuss the treatment of legislative resignations in the Constitution itself.