What If a Fourth of the House Died?

In what may be the ultimate sign of the different times in which we are living, a constitutional amendment has been proposed to address what was once the unthinkable: the death or incapacitation of one-fourth or more of the members of the House of Representatives. This amendment, introduced by Rep. Brian Baird (D-Wash.), can’t be easily dismissed.

The Constitution does in fact have a blind spot that makes the system vulnerable to terrorism. In a nuclear or biochemical attack, it is possible that a majority of House members might be living but incapacitated. In such a crisis, the remaining members could be constitutionally disabled.

The Constitution specifies that a quorum--a majority of the elected members--is needed to conduct business in either the House or the Senate. Even with members who are killed, the average special election for a House seat takes months. This would leave large areas of the country unrepresented in deliberations that could determine the future of the country, including the relative sacrifices to be borne by particular areas.

In the Senate, this problem is avoided because the 17th Amendment allows governors to fill vacancies. The House has no such provision. Baird’s amendment would allow a governor to appoint House members for 90-day terms to fill vacancies until special elections are held.

The Constitution has been amended only 27 times in more than 200 years. When one considers that the first 10 amendments are the Bill of Rights, there have been relatively few modifications of a document that is not only the symbol but the foundation for our country. The framers wanted amendments to be difficult, requiring not just the support of two-thirds of both houses of Congress but also three-fourths of the state legislatures.

There have been some misguided statements made in support of the Baird amendment, despite its merits.

For example, it is not true that the framers never anticipated large-scale vacancies or absences in the House. Such absences and vacancies were common. During the War of 1812 and the Civil War, Congress faced the possibility of the arrest or death of a significant number of members. After all, the British actually burned the Capitol in 1814 and only barely missed capturing both congressional leaders and President Madison.

What the framers did not anticipate was the combination of large-scale deaths or incapacitation and the need to act quickly in a national crisis. Things moved a bit slower in the 18th and 19th centuries.

It is also not true that our system would shut down with a devastating attack on Congress. The president has ample emergency powers to act to protect the United States and to respond to immediate threats. Congress is not needed in day-to-day management of a crisis.

Nevertheless, it is important to the country to have a fully functioning government at such a moment. This amendment deserves serious consideration but also significant caution. Unlike death, incapacitation of a member is a matter of interpretation.

Who makes that determination will be of enormous importance in a system based on checks and balances. Moreover, it is essential that any incapacitation determination be considered a matter for expedited judicial review rather than a political question left solely to Congress or the president.

Obviously, most voters might view this amendment as legislating for the apocalypse. But recent events have concentrated our minds on our ability to confront any contingency. Faced with a devastating attack, we need to act as a free people with one voice. It is in the House of Representative that the voice of the people is heard most directly and clearly.

Ultimately, the Constitution is our most important emergency contingency plan. It must be as contemporaneous as the dangers that threaten its republic.