Constitution of the United States/Art. I/Sec. 2/Clause 2 Qualifications

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 2 House of Representatives

Clause 2 Qualifications

Clause Text
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Overview of House Qualifications Clause[edit | edit source]

The House Qualifications Clause set forth at Article I, Section 2, Clause 2 requires a Member to be at least twenty-five years of age, a United States citizen for seven years, and an inhabitant of the state from which he or she is elected at the time of election. The Framers designed these minimal requirements to give people freedom to choose the person who would best represent their interests in Congress. Explaining the impetus behind the adoption of these requirements at the Constitutional Convention, the writer of the Federalist No. 52 commented: "Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith."[1]

When determining the qualification requirements, the Framers gave careful consideration to what the office required.[2] The Framers reasoned that a twenty-five year age requirement would ensure that Members had sufficient maturity to perform their duties, while a seven-year citizenship requirement would allow foreign born citizens to participate in the government while ensuring they were knowledgeable about the United States and unlikely to be influenced by loyalty to the land of their birth.[3] Finally, the Framers required Members to be inhabitants[4] of the state from which they were elected so that they would be vested in representing the interests of the state. Discussing the residency requirements in his Commentaries on the Constitution of the United States, Justice Joseph Story stated:

The object of this clause, doubtless, was to secure an attachment to, and a just representation of, the interests of the state in the national councils. It was supposed, that an inhabitant would feel a deeper concern, and possess a more enlightened view of the various interests of his constituents. And, in all events, he would generally possess more entirely their sympathy and confidence.Joseph Story, 2 Commentaries on the Constitution of the United States § 618 (1833). See also Edward S. Corwin, The Constitution and What it Means Today 9 (Harold W. Chase & Craig R. Ducat eds. 1973) (1958) ("An 'inhabitant' is a resident.").

While Article I, Section 2, Clause 2 expressly requires state inhabitancy at the time of the election, Congress has interpreted the House Qualifications Clause to require only that Members meet age and citizenship qualifications at the time they take the oath of office.[5] Thus, Congress has admitted persons, who were ineligible when elected, to the House of Representatives once they met age and citizenship criteria for membership in the House.[6] Further, the Supreme Court held in Powell v. McCormack[7] and U.S. Term Limits, Inc. v. Thornton[8] that neither Congress nor the states, respectively, can add to the qualifications stipulated in the Constitution for membership in Congress.

Ability of Congress to Change Qualifications for Members[edit | edit source]

The Framers appear to have intended that the House and Senate Qualifications Clauses would establish national standards for membership in Congress.[9] During debates over qualifications for Members of Congress, delegates to the Constitutional Convention considered and rejected giving Congress discretion to set qualifications requirements on the grounds that such discretion would be susceptible to manipulation and thereby would risk excluding otherwise qualified persons from the national legislature.[10] In the Federalist No. 60, Alexander Hamilton addressed the exclusivity of the constitutional qualification requirements, stating: "The qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature."[11]

Pursuant to Article I, Section 5, Clause 1, the Constitution provides for each House of Congress to determine whether Members-elect have met the qualification requirements for congressional membership. Article I, Section 5, Clause 1 states: "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members."[12]

In determining eligibility to serve in Congress, Congress does not appear to have deviated from Hamilton's position that qualifications for Congress "are unalterable by the legislature" until the Civil War.[13] But in July of 1862, Congress passed a law requiring all persons appointed or elected to the United States Government to take an oath--known as the "Ironclad Test Oath"[14]--that they had never been, nor ever would be, disloyal to the United States Government.[15] Subsequently, both Houses refused seats to several persons because of charges of disloyalty.[16] Thereafter, Members sometimes challenged seating Members-elect on grounds such as moral turpitude and bribery with disparate and unpredictable results.[17]

In 1969, the Supreme Court conclusively established in Powell v. McCormack[18] that House qualification requirements set forth at Article I, Section 2, Clause 4, and possibly any other qualification requirements set forth in the Constitution, are exclusive[19] and Congress cannot exclude Members-elect, who meet such requirements.[20] In Powell, Adam Clayton Powell, Jr. was re-elected to serve in the House of Representatives for the 90th Congress. The House of Representatives, however, denied him a seat based on findings by a Special Subcommittee on Contracts of the Committee on House Administration that Powell had engaged in misconduct during the 89th Congress.[21]

In determining that Powell was entitled to a declaratory judgment that he had been unlawfully excluded from Congress, the Supreme Court examined the Constitution, Constitutional Convention debates, and how Congress had applied the House qualification requirements in the past. Looking to English parliamentary and colonial legislative practice, the Court noted that these bodies had only excluded officers when they failed to meet standing qualifications.[22] The Court further noted that the Constitutional Convention considered and rejected provisions that would have allowed Congress to create property or other qualification requirements without limitation as unworkable.[23] And the Court recognized that Alexander Hamilton and James Madison in the Federalist Papers and Hamilton at the New York ratifying convention had stated that the Constitution stipulated exclusive qualification requirements for Members of Congress.[24]

Examining early congressional practices, the Court noted that Members of Congress, many of whom had participated in the Constitutional Convention, generally took the view that Congress could only exclude Members-elect who failed to meet qualifications expressly prescribed in the Constitution and that this position went unchallenged until the Civil War.[25] Finally, the Court reasoned that qualification requirements should be construed narrowly because, to do otherwise, would deprive voters of their choice as to who should represent them in Congress. Referencing James Madison, the Court stated: "A fundamental principle of our representative democracy is . . . 'that the people should choose whom they please to govern them.' . . . [T]his principle is undermined as much by limiting whom the people can select as by limiting the franchise itself."[26] Thus, the Court reasoned, if the House excluded Powell based on qualifications other than those stipulated in the Constitution, the House would impinge on the interests of Powell's constituents to choose their preferred candidate.[27]

Ability of States to Add Qualifications for Members[edit | edit source]

In 1969, the Supreme Court established in Powell v. McCormack[28] that Congress may not consider qualifications other than those set forth in the Constitution when judging whether Members-elect qualified for Congress pursuant to Article I, Section 5, Clause 1.[29] In 1995, the Supreme Court in U.S. Term Limits, Inc. v. Thornton extended its findings in Powell to prohibit states from imposing qualification requirements on congressional membership.

The Supreme Court's Thornton holding was consistent with long-established congressional practice not to weigh state-added qualifications when considering whether a Member-elect qualified for a congressional seat. For instance, in 1807, the House seated a Member-elect although he was in violation of a state law requiring Members of Congress to have resided in their congressional districts for at least twelve months, the House resolving that the state requirement was unconstitutional.[30]

In Thornton, Arkansas, along with twenty-two other states, limited the number of terms that Members of Congress could serve.[31] Reexamining Powell and "its articulation of the 'basic principles of our democratic system,'" the Thornton Court reaffirmed that "the qualifications for service in Congress set forth in the Constitution are 'fixed,'" in that Congress may not supplement them.[32] Powell, the Court found, however, did not conclusively resolve the Thornton issue as to whether, during the framing of the Constitution, the states had retained power to add qualification requirements for membership in Congress. Recognizing that the Framers clearly intended for the Constitution to be the exclusive source of congressional qualifications,[33] the Court reasoned that even if states had possessed some original power in this area, they had ceded that power to the Federal Government.[34] The Court, however, held that the power to add qualifications "is not within the 'original powers' of the States, and thus not reserved to the States by the Tenth Amendment."[35]

Both the Thornton majority and dissent hinged their analyses on whether states had power to impose additional qualification requirements on candidates for Congress and, if so, whether they had ceded such power when they ratified the Constitution. To this end, the Court explored the Constitution's text, drafting, and ratification, as well as early congressional and state practices.[36] Observing that state powers were either (1) reserved by states from the Federal Government under the Constitution or (2) delegated to states by the Federal Government, the majority reasoned that states had no reserved powers that emanated from the Federal Government. Quoting Justice Joseph Story, the Court noted: "'[S]tates can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. . . . No state can say, that it has reserved, what it never possessed.'"[37] Because states had no powers to legislate on the Federal Government prior to the Nation's Founding and the Constitution did not delegate to states power to prescribe qualifications for Members of Congress, the Court held the states did not have such power.[38]

In contrast, the dissent reasoned that the Constitution precluded states only from exercising powers delegated to the Federal Government, either expressly or implicitly,[39] or which the states had agreed not to exercise themselves.[40] Consequently, states retained all other powers.[41] The dissent stated "Where the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the States enjoy it."[42] Accordingly, the dissent reasoned, the Constitution's silence on whether states could impose additional qualifications meant the states retained this power.

Thornton reaffirmed that any change to qualifications for membership in Congress cannot come from state or federal law, but only through the amendment process set forth in Article V of the United States Constitution.[43] Six years later, the Court relied on Thornton to invalidate a Missouri law requiring that labels be placed on ballots alongside the names of congressional candidates who had "disregarded voters' instruction on term limits" or declined to pledge support for term limits.[44]

The Supreme Court has distinguished state requirements for appearing on a ballot as a third-party candidate from qualification requirements for membership in Congress. In Storer v. Brown, the Court noted that a California law setting criteria to be listed as a third-party candidate did not violate Article I, Section 2, Clause 2. The Court reasoned that the plaintiffs would not have been disqualified if "they had been nominated at a party primary or by an adequately supported independent petition and then elected at the general election."[45] As such, the Court recognized that state requirements for being listed on the ballot was consistent with the state's interest in ensuring that a candidate listed on a ballot is a "serious contender."[46]

  1. The Federalist No. 52 (Alexander Hamilton). See also The Federalist No. 57 (Alexander Hamilton or James Madison) ("Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people.").
  2. See, e.g., 2 Records of the Federal Convention of 1787 215-19, 267-72 (Max Farrand ed., 1911).
  3. See Joseph Story, 2 Commentaries on the Constitution of the United States §§ 616, 617 (1833). Qualifications for the Senate were more rigorous than those for the House. The Framers required that Senators be at least thirty years of age and nine years a citizen as well as a resident of the state from which they were elected at the time of the election. Art. I, Sec. 3, Clause 2 Seats. The author of the Federalist No. 62 explained the difference in requirements for Representatives and Senators as arising from the nature of the senatorial trust, which, requiring greater extent of information and ability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The Federalist No. 62 (Alexander Hamilton or James Madison).
  4. The Framers adopted the term "inhabitant" in favor of "resident" because, as understood at that time, "inhabitant" would not, in the words of James Madison, "exclude persons absent occasionally for a considerable time on public or private business." 2 Records of the Federal Convention of 1787 217 (Max Farrand ed., 1911).
  5. See S. Rep. No. 904, 74th Congress, 1st sess. (1935), reprinted in 79 Cong. Rec. 9651-9653 (1935) (discussing provision's grammatical construction provided for habitancy "when elected" and that Constitutional Convention proceedings indicated that age and citizenship qualifications related solely "to actual and not potential senatorship.").
  6. See, e.g., 1 Hinds' Precedents of the House of Representatives § 418 (1907) (discussing John Young Brown of Kentucky, who waited over a year from the time of his election before taking the oath of office on account of the age qualification requirement); 79 Cong. Rec. 9841-42 (1935) (same); cf. 1 Hinds, supra note here, at § 429 (discussing the case of James Shields of Illinois who was disqualified from his Senate seat on account of not having met the citizenship requirement at the time he took the oath of office).
  7. Powell v. McCormack, 395 U.S. 486 (1969).
  8. U.S. Term Limits, Inc., v. Thornton, 514 U.S. 779 (1995).
  9. The Senate Qualifications Clause is set forth at Article I, Section 3, Clause 3.
  10. 2 Records of the Federal Constitution 248-51 (Max Farrand ed., 1911).
  11. The Federalist No. 60 (Alexander Hamilton). See also Joseph Story, Commentaries on the Constitution of the United States §§ 623-27 (1833).
  12. Art. I, Sec. 5, Clause 1 Authority.
  13. All the instances appear to have involved an additional state qualification. Other cases involve challenges under Art. I, § 3, cl. 3. See e.g., R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. Doc. No. 71 at 1, 87th Cong., 2d sess. (1962) (discussing Albert Gallatin of Pennsylvania).
  14. >https://www.senate.gov/artandhistory/history/common/generic/Civil_War_TestOath1863.htm
  15. Act of July 2, 1862, 12 Stat. 502.
  16. 1 Hinds' Precedents of the House of Representatives §§ 449, 451, 457 (1907).
  17. In 1870, the House excluded a Member-elect who was re-elected after previously resigning when the House instituted expulsion proceedings against him for selling appointments to the Military Academy. Id. at § 464. In 1899, the Senate did not exclude a Member-elect because he practiced polygamy (id. at §§ 474-80) after adopting a rule requiring a two-thirds vote to exclude a Member-elect on those grounds. Id. at §§ 481-483. The House twice excluded a socialist Member-elect in the wake of World War I on allegations of disloyalty. 6 Cannon's Precedents of the House of Representatives §§ 56-58 (1935). See also S. Rep. No. 1010, 77th Congress, 2d sess. (1942); R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. Doc. No. 71, at 140, 87th Cong. 2d sess. (1962) (discussing House Committee voting that Senator William Langer of North Dakota was not entitled to a seat based on alleged moral turpitude, including embracing kickbacks, converting proceeds of legal settlements, accepting a bribe, and prematurely paying on advertising contracts and the Senate upholding Senator Langer's seat); Id. at 140-41 (discussing effort to exclude Senator Tom Stewart of Tennessee on grounds that he contracted with the Tennessee officials to promote candidacies and secure nominations of three men, and, as part of carrying out the agreements, the candidates illegally expended more than $200,000.00 in primary and general elections. The Petition for expulsion was submitted to the Committee and dismissed by unanimous vote without explanation).
  18. Powell v. McCormack, 395 U.S. 486 (1969). The Court divided 8-1 with Justice Potter Stewart dissenting on the ground that the case was moot. Id. In U.S. Term Limits, Inc. v. Thornton, the Court affirmed Powell, holding that the House and Senate Qualifications Clauses are exclusive and cannot be augmented by Congress or states. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 787-98 (1995). Dissenting, Justice Clarence Thomas joined by Justices Sandra Day O'Connor and Antonin Scalia reasoned that, while Congress could not add qualifications because the Constitution had not provided it such powers, the Constitution did not preclude states from doing so. Id. at 875-76, 883.
  19. The Court did not address if the Constitution imposes other qualifications, such as Article I, § 3, cl. 7 (disqualifying persons impeached); Article I, § 6, cl. 2 (incompatible offices); and § 3 of the Fourteenth Amendment. Powell v. McCormack, 395 U.S. 486, 520 n.41 (1969). Courts might also consider Article VI, cl. 3, to be a qualification. See Bond v. Floyd, 385 U.S. 116, 129-31 (1966).
  20. Powell v. McCormack, 395 U.S. 486, 550 (1969).
  21. See H. Rep. No. 27, 90th Cong., 1st sess. (1967); Powell v. McCormack, 395 U.S. 486, 489-90 (1969).
  22. Id. at 522-31.
  23. Id. at 532-39.
  24. Id. at 539-41.
  25. Id. at 541-47.
  26. Id. at 547 (citations omitted).
  27. Protecting the voters' interest in choosing their representatives is consistent with voters' constitutionally secured right to cast ballots and have them counted in general elections (Ex parte Yarbrough, 110 U.S. 651 (1884)); and primary elections (United States v. Classic, 313 U.S. 299 (1941)); to cast a ballot undiluted in strength because of unequally populated districts (Wesberry v. Sanders, 376 U.S. 1 (1964)); and to cast a vote for candidates of their choice unfettered by onerous restrictions on candidate qualification for the ballot. Williams v. Rhodes, 393 U.S. 23 (1968).
  28. Powell v. McCormack, 395 U.S. 486 (1969).
  29. U.S. Const. art I., § 5, cl. 1 ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .").
  30. 1 Hinds' Precedents of the House of Representatives § 414 (1907). See, e.g., Davis v. Adams, 400 U.S. 1203 (1970) (staying enforcement of statute requiring "incumbent of a state elective office to resign before he can become a candidate for another office" when election in which state officers were running for the House of Representatives was imminent but noting that the state could challenge the candidates as having failed to qualify in the event they won their elections).
  31. All but two of the state initiatives to impose term limits were citizen initiatives. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
  32. Id. at 798.
  33. Id.
  34. Id. at 801.
  35. Id. at 800.
  36. See Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).
  37. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802 (1995) (quoting Joseph Story, The Commentaries on the Constitution of the United States (1833)).
  38. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 798-805 (1995). See also id. at 838-45 (Kennedy, J., concurring). The Court applied similar reasoning in Cook v. Gralike, 531 U.S. 510, 522-23 (2001), invalidating ballot labels identifying congressional candidates who had not pledged to support term limits. Because congressional offices arise from the Constitution, the Court explained, states would have had no authority to regulate these offices prior to the Constitution that they could have reserved, and the ballot labels were not valid exercise of the power granted by Article I, § 4 to regulate the "manner" of holding elections.
  39. E.g., Art. I, Section 8 Enumerated Powers.
  40. E.g., Art. I, Section 10 Powers Denied States.
  41. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) ("Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.").
  42. Id. at 848 (Thomas, J., dissenting). See generally id. at 846-65.
  43. Id. at 837.
  44. Cook v. Gralike, 531 U.S. 510 (2001).
  45. Storer v. Brown, 415 U.S. 724, 746 & n.16 (1974).
  46. Id. at 746.