|U.S. Term Limits, Inc. v. Thornton (93-1456), 514 U.S. 779 (1995). |
[ Thomas ]
[ Stevens ]
[ Kennedy ]
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 93-1456 and 93-1828
U. S. TERM LIMITS, INC., et al., PETITIONERS 93-1456
v. RAY THORNTON et al. WINSTON BRYANT, ATTORNEY GENERAL
OF ARKANSAS, PETITIONER 93-1828
on writs of certiorari to the supreme court of arkansas
"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."
Article I, §3, cl. 3, which applies to the Senate, similarly provides:
"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for
which he shall be chosen."
Today's cases present a challenge to an amendment to the Arkansas State Constitution that prohibits the name of an otherwise eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The Arkansas Supreme Court held that the amendment violates the Federal Constitution. We agree with that holding. Such a state imposed restriction is contrary to the "fundamental principle of our representative democracy," embodied in the Constitution, that "the people should choose whom they please to govern them." Powell v. McCormack, 395 U.S. 486, 547 (1969) (internal quotation marks omitted). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.
At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a "Term Limitation Amendment," its preamble stated:
"The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of the elected officials."
The limitations in Amendment 73 apply to three categories of elected officials. Section 1 provides that no elected official in the executive branch of the state government may serve more than two 4 year terms. Section 2 applies to the legislative branch of the state government; it provides that no member of the Arkansas House of Representatives may serve more than three 2 year terms and no member of the Arkansas Senate may serve more than two 4 year terms. Section 3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation. It provides:
"(a) Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas.
"(b) Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas."
Amendment 73 states that it is self executing and shall apply to all persons seeking election after January 1, 1993.
On November 13, 1992, respondent Bobbie Hill, on behalf of herself, similarly situated Arkansas "citizens, residents, taxpayers and registered voters," and the League of Women Voters of Arkansas, filed a complaint in the Circuit Court for Pulaski County, Arkansas, seeking a declaratory judgment that §3 of Amendment 73 is "unconstitutional and void." Her complaint named as defendants then Governor Clinton, other state officers, the Republican Party of Arkansas, and the Democratic Party of Arkansas. The State of Arkansas, through its Attorney General, petitioner Winston Bryant, intervened as a party defendant in support of the amendment. Several proponents of the amendment also intervened, including petitioner U. S. Term Limits, Inc.
On cross motions for summary judgment, the Circuit Court held that §3 of Amendment 73 violated Article I of the Federal Constitution. [n.1]
With respect to that holding, in a 5-to 2 decision, the Arkansas Supreme Court affirmed. U. S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S. W. 2d 349, 351 (1994). Writing for a plurality of three justices, Justice Robert L. Brown concluded that the congressional restrictions in Amendment 73 are unconstitutional because the States have no authority "to change, add to, or diminish" the requirements for congressional service enumerated in the Qualifications Clauses. Id., at 265, 872 S. W. 2d, at 356. He noted:
"If there is one watchword for representation of the various states in Congress, it is uniformity. Federal legislators speak to national issues that affect the citizens of every state. . . . The uniformity in qualifications mandated in Article 1 provides the tenor and the fabric for representation in the Congress. Piecemeal restrictions by State would flyin the face of that order." Ibid.
Justice Brown's plurality opinion also rejected the argument that Amendment 73 is "merely a ballot access amendment," concluding that "[t]he intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." Id., at 265-266, 872 S. W. 2d, at 356-357. Justice Brown considered the possibilities that an excluded candidate might run for Congress as a write in candidate or be appointed to fill a vacancy to be "glimmers of opportunity . . . [that] are faint indeed--so faint in our judgment that they cannot salvage Amendment 73 from constitutional attack." Id., at 266, 872 S. W. 2d, at 357. In separate opinions, Justice Dudley and Justice Gerald P. Brown agreed that Amendment 73 violates the Federal Constitution.
Two Justices dissented from the federal constitutional holding. Justice Hays started from "the premise that all political authority resides in the people, limited only by those provisions of the federal or state constitutions specifically to the contrary." 316 Ark., at 281, 872 S.W. 2d, at 367. Because his examination of the text and history of the Qualifications Clauses convinced him that the Constitution contains no express or implicit restriction on the States' ability to impose additional qualifications on candidates for Congress, Justice Hays concluded that §3 is constitutional. Special Chief Justice Cracraft, drawing a distinction between a measure that "impose[s] an absolute bar on incumbent succession," and a measure that "merely makes it more difficult for an incumbent to be elected," id., at 284, 872 S. W. 2d, at 368, concluded that Amendment 73 does not even implicate the Qualifications Clauses, and instead is merely a permissible ballot access restriction.
The State of Arkansas, by its Attorney General, and the intervenors petitioned for writs of certiorari. Because of the importance of the issues, we granted both petitions and consolidated the cases for argument. See
512 U. S. __ (1994). We now affirm.
As the opinions of the Arkansas Supreme Court suggest, the constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States from adding to or altering the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members.
Twenty six years ago, in Powell v. McCormack, 395 U.S. 486 (1969), we reviewed the history and text of the Qualifications Clauses [n.2] in a case involving an attempted exclusion of a duly elected Member of Congress. The principal issue was whether the power granted to each House in Art. I, §5, to judge the "Qualifications of its own Members" [n.3] includes the power to impose qualifications other than those set forth in the text of the Constitution. In an opinion by Chief Justice Warren for eight Members of the Court, [n.4] we held that it does not. Because of the obvious importance of the issue, the Court's review of the history and meaning of the relevant constitutional text was especially thorough. We therefore begin our analysis today with a full statement of what we decided in that case.
THE ISSUE IN POWELL
In November 1966, Adam Clayton Powell, Jr., was elected from a District in New York to serve in the United States House of Representatives for the 90th Congress. Allegations that he had engaged in serious misconduct while serving as a committee chairman during the 89th Congress led to the appointment of a Select Committee to determine his eligibility to take his seat. That Committee found that Powell met the age, citizenship, and residency requirements set forth in Art. I, §2, cl. 2. The Committee also found, however, that Powell had wrongfully diverted House funds for the use of others and himself and had made false reports on expenditures of foreign currency. Based on those findings, the House after debate adopted House Resolution 278, excluding Powell from membership in the House, and declared his seat vacant. See 395 U. S., at 489-493.
Powell and several voters of the District from which he had been elected filed suit seeking a declaratory judgment that the House Resolution was invalid because Art. I, §2, cl. 2, sets forth the exclusive qualifications for House membership. We ultimately accepted that contention, concluding that the House of Representatives has no "authority to exclude [n.5] any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution." 395 U. S., at 522 (emphasis in original); see also id., at 547. [n.6] In reaching that conclusion, we undertook a detailed historical review to determine the intent of the Framers. Though recognizing that the Constitutional Convention debates themselves were inconclusive, see id., at 532, we determined that the "relevant historical materials" reveal that Congress has no power to alter the qualifications in the text of the Constitution, id., at 522.
POWELL'S RELIANCE ON HISTORY
We started our analysis in Powell by examining the British experience with qualifications for membership in Parliament, focusing in particular on the experience of John Wilkes. While serving as a member of Parliament, Wilkes had published an attack on a peace treaty with France. This literary endeavor earned Wilkes a conviction for seditious libel and a 22 month prison sentence. In addition, Parliament declared Wilkes ineligible for membership and ordered him expelled. Despite (or perhaps because of) these difficulties, Wilkes was reelected several times. Parliament, however, persisted in its refusal to seat him. After several years of Wilkes' efforts, the House of Commons voted to expunge the resolutions that had expelled Wilkes and had declared him ineligible, labeling those prior actions " `subversive of the rights of the whole body of electors of this kingdom.' " Id., at 528, quoting 22 Parliamentary History England 1411 (1782) (Parl. Hist. Eng.). After reviewing Wilkes' "long and bitter struggle for the right of the British electorate to be represented by men of their own choice," 395 U. S., at 528, we concluded in Powell that "on the eve of the Constitutional Convention, English precedent stood for the proposition that `the law of the land had regulated the qualifications of members to serve in parliament' and those qualifications were `not occasional but fixed.' " Ibid., at 528, quoting 16 Parl. Hist. Eng. 589, 590 (1769).
Against this historical background, we viewed the Convention debates as manifesting the Framers' intent that the qualifications in the Constitution be fixed and exclusive. We found particularly revealing the debate concerning a proposal made by the Committee of Detail that would have given Congress the power to add property qualifications. James Madison argued that such a power would vest " `an improper & dangerous power in the Legislature,' " by which the Legislature " `can by degrees subvert the Constitution.' " 395 U. S., at 533-534, quoting 2 Records of the Federal Convention of 1787, pp. 249-250 (M. Farrand ed. 1911) (hereinafter Farrand). [n.7] Madison continued: " `A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect.' " 395 U. S., at 534, quoting 2 Farrand 250. We expressly noted that the "parallel between Madison's arguments and those made in Wilkes' behalf is striking." 395 U. S., at 534.
The Framers further revealed their concerns about congressional abuse of power when Gouverneur Morris suggested modifying the proposal of the Committee of Detail to grant Congress unfettered power to add qualifications. We noted that Hugh Williamson "expressed concern that if a majority of the legislature should happen to be `composed of any particular description of men, of lawyers for example, . . . the future elections might be secured to their own body.' " Id., at 535, quoting 2 Farrand 250. We noted too that Madison emphasized the British Parliament's attempts to regulate qualifications, and that he observed: " `[T]he abuse they had made of it was a lesson worthy of our attention.' " 395 U. S., at 535, quoting 2 Farrand 250. We found significant that the Convention rejected both Morris' modification and the Committee's proposal.
We also recognized in Powell that the post-Convention ratification debates confirmed that the Framers understood the qualifications in the Constitution to be fixed and unalterable by Congress. For example, we noted that in response to the antifederalist charge that the new Constitution favored the wealthy and well born, Alexander Hamilton wrote:
" `The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. . . . The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.' " 395 U. S., at 539, quoting The Federalist No. 60, p. 371 (C. Rossiter ed. 1961) (emphasis added) (hereinafter The Federalist).
We thus attached special significance to "Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution." 395 U. S., at 540. Moreover, we reviewed the debates at the state conventions and found that they "also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution." Ibid.; see, e. g., id., at 541, citing 3 Debates on the Adoption of the Federal Constitution 8 (J. Elliot ed. 1863) (hereinafter Elliot's Debates) (Wilson Carey Nicholas, Virginia). [n.8]
The exercise by Congress of its power to judge the qualifications of its Members further confirmed this understanding. We concluded that, during the first 100 years of its existence, "Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution." 395 U. S., at 542.
As this elaborate summary reveals, our historical analysis in Powell was both detailed and persuasive. We thus conclude now, as we did in Powell, that history shows that, with respect to Congress, the Framers intended the Constitution to establish fixed qualifications. [n.9]
POWELL'S RELIANCE ON DEMOCRATIC PRINCIPLES
In Powell, of course, we did not rely solely on an analysis of the historical evidence, but instead complemented that analysis with "an examination of the basic principles of our democratic system." Id., at 548. We noted that allowing Congress to impose additional qualifications would violate that "fundamental principle of our representative democracy . . . `that the people should choose whom they please to govern them.' " Id., at 547, quoting 2 Elliot's Debates 257 (A. Hamilton, New York).
Our opinion made clear that this broad principle incorporated at least two fundamental ideas. [n.10] First, we emphasized the egalitarian concept that the opportunity to be elected was open to all. [n.11] We noted in particular Madison's statement in The Federalist that" `[u]nder these reasonable limitations [enumerated in the Constitution], 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.' " Powell, 395 U. S., at 540, n. 74, quoting The Federalist No. 52, at 326. Similarly, we noted that Wilson Carey Nicholas defended the Constitution against the charge that it "violated democratic principles" by arguing: " `It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence.' " 395 U. S., at 541, quoting 3 Elliot's Debates 8.
Second, we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. For example, we noted that "Robert Livingston . . . endorsed this same fundamental principle: `The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights.' " 395 U. S., at 541, n. 76, quoting 2 Elliot's Debates 292-293. Similarly, we observed that "[b]efore the New York convention . . . , Hamilton emphasized: `The true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.' " 395 U. S., at 540-541, quoting 2 Elliot's Debates 257. Quoting from the statement made in 1807 by the Chairman of the House Committee on Elections, we noted that "restrictions upon the people to choose their own representatives must be limited to those `absolutely necessary for the safety of the society.' " 395 U. S., at 543, quoting 17 Annals of Cong. 874 (1807). Thus, in Powell, we agreed with the sentiment expressed on behalf of Wilkes' admission to Parliament: " `That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.' " 395 U. S., at 534, n. 65, quoting 16 Parl. Hist. Eng. 589-590 (1769).
Powell thus establishes two important propositions: first, that the "relevant historical materials" compel the conclusion that, at least with respect to qualifications imposed by Congress, the Framers intended the qualifications listed in the Constitution to be exclusive; and second, that that conclusion is equally compelled by an understanding of the "fundamental principle of our representative democracy . . . `that the people should choose whom they please to govern them.' " 395 U. S., at 547.
Petitioners argue somewhat half heartedly that the narrow holding in Powell, which involved the power of the House to exclude a member pursuant to Art. I, §5, does not control the more general question whether Congress has the power to add qualifications. Powell, however, is not susceptible to such a narrow reading. Our conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome. See, e. g., id., at 540 (noting "Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution"). Only two Terms ago we confirmed this understanding of Powell in Nixon v. United States, 506 U. S.__ (1993). After noting that the three qualifications for membership specified in Art. I, §2, are of "a precise, limited nature" and "unalterable by the legislature," we explained:
"Our conclusion in Powell was based on the fixed meaning of `[q]ualifications' set forth in Art I, §2. The claim by the House that its power to `be the Judge of the Elections, Returns and Qualifications of its own Members' was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership." Id., at __ (slip op. at 12-13). [n.12]
Unsurprisingly, the state courts and lower federal courts have similarly concluded that Powell conclusively resolved the issue whether Congress has the power to impose additional qualifications. See, e.g., Joyner v. Mofford, 706 F. 2d 1523, 1528 (CA9 1983) ("In Powell . . . , the Supreme Court accepted this restrictive view of the Qualifications Clause--at least as applied to Congress"); Michel v. Anderson, 14 F. 3d 623 (CADC 1994) (citing Nixon's description of Powell's holding); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 122 (1992) (citing Powell for the proposition that "[n]ot even Congress has the power to alter qualifications for these constitutional federal officers"). [n.13]
In sum, after examining Powell's historical analysis and its articulation of the "basic principles of our democratic system," we reaffirm that the qualifications for service in Congress set forth in the text of the Constitution are "fixed," at least in the sense that they may not be supplemented by Congress.
Our reaffirmation of Powell, does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications.
Before addressing these arguments, we find it appropriate to take note of the striking unanimity among the courts that have considered the issue. None of the overwhelming array of briefs submitted by the parties and amici has called to our attention even a single case in which a state court or federal court has approved of a State's addition of qualifications for a member of Congress. To the contrary, an impressive number of courts have determined that States lack the authority to add qualifications. See, e. g., Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); Eckwall v. Stadelman, 146 Ore. 439, 446, 30 P. 2d 1037, 1040 (1934); Stockton v. McFarland, 56 Ariz. 138, 144, 106 P. 2d 328, 330 (1940); State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948); Dillon v. Fiorina, 340 F. Supp. 729, 731 (N.M. 1972); Stack v. Adams, 315 F. Supp. 1295, 1297-1298 (ND Fla. 1970); Buckingham v. State, 42 Del. 405, 35 A. 2d 903, 905 (1944); Stumpf v. Lau, 108 Nev. 826, 830, 839 P. 2d 120, 123 (1992); Danielson v. Fitzsimmons, 232 Minn. 149, 151, 44 N. W. 2d 484, 486(1950); In re Opinion of Judges, 79 S. D. 585, 587, 116 N. W. 2d 233, 234 (1962). Courts have struck down state imposed qualifications in the form of term limits, see, e. g., Thorsted v. Gregoire, 841 F. Supp. 1068, 1081 (WD Wash. 1994); Stumpf v. Lau, 108 Nev., at 830, 839 P. 2d, at 123, district residency requirements, see, e. g., Hellmann v. Collier, 217 Md. 93, 100, 141 A. 2d 908, 911 (1958); Dillon v. Fiorina, 340 F. Supp., at 731; Exon v. Tiemann, 279 F. Supp. 609, 613 (Neb. 1968); State ex rel. Chavez v. Evans, 79 N. M. 578, 581, 446 P. 2d 445, 448 (1968) (per curiam), loyalty oath requirements, see, e. g., Shub v. Simpson, 196 Md. 177, 199, 76 A. 2d 332, 341, appeal dism'd, 340 U.S. 881 (1950); In re O'Connor, 173 Misc. 419, 421, 17 N. Y. S. 2d 758, 760 (Super. Ct. 1940), and restrictions on those convicted of felonies, see, e. g., Application of Ferguson, 57 Misc. 2d 1041, 1043, 294 N. Y. S. 2d 174, 176 (Super. Ct. 1968); Danielson v. Fitzsimmons, 232 Minn., at 151, 44 N. W. 2d, at 486; State ex rel. Eaton v. Schmahl, 140 Minn. 219, 220, 167 N. W. 481 (1918) (per curiam). Prior to Powell, the commentators were similarly unanimous. See, e. g., 1 W. Blackstone, Commentaries Appendix 213 (S. Tucker ed. 1803) ("[T]hese provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory"); 1 Story §627 (each member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states"); 1 J. Kent, Commentaries on American Law 228, n. a (3d ed. 1836) ("the objections to the existence of any such power [on the part of the States to add qualifications are]. . . too palpable and weighty to admit of any discussion"); G. McCrary, American Law of Elections §322 (4th ed. 1897) ("It is not competent for any State to add to or in any manner change the qualifications for a Federal office, as prescribed by the Constitution or laws of the United States"); T. Cooley, General Principles of Constitutional Law 268 (2d ed. 1891) ("The Constitution and laws of the United States determine what shall be the qualifications for federal offices, and state constitutions and laws can neither add to nor take away from them"); C. Burdick, Law of the American Constitution 160 (1922) ("It is clearly the intention of the Constitution that all persons not disqualified by the terms of that instrument should be eligible to the federal office of Representative"); id., at 165 ("It is as clear that States have no more right to add to the constitutional qualifications of Senators than they have to add to those for Representatives"); Warren 422 ("The elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications"). [n.14] This impressive and uniform body of judicial decisions and learned commentary indicates that the obstacles confronting petitioners are formidable indeed.
Petitioners argue that the Constitution contains no express prohibition against state added qualifications, and that Amendment 73 is therefore an appropriate exercise of a State's reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the "original powers" of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and that the Framers thereby "divested" States of any power to add qualifications.
The "plan of the convention" as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment, draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819).
This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate "[a]n entire consolidation of the States into one complete national sovereignty," but only a partial consolidation in which "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms this principle:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
As we have frequently noted, "[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985) (internal quotation marks and citation omitted) (emphasis added); see also New York v. United States, 505 U. S. __, __ (slip op., at 8-9) (1992).
SOURCE OF THE POWER
Contrary to petitioners' assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners' Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only "reserve" that which existed before. As Justice Story recognized, "the states 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." 1 Story §627.
Justice Story's position thus echoes that of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316 (1819). In McCulloch, the Court rejected the argument that the Constitution's silence on the subject of state power to tax corporations chartered by Congress implies that the States have "reserved" power to tax such federal instrumentalities. As Chief Justice Marshall pointed out, an "original right to tax" such federal entities "never existed, and the question whether it has been surrendered, cannot arise." id., at 430. See also Crandall v. Nevada, 6 Wall. 35, 46 (1868). In language that presaged Justice Story's argument, Chief Justice Marshall concluded: "This opinion does not deprive the States of any resources which they originally possessed." 4 Wheat., at 436. [n.15]
With respect to setting qualifications for service in Congress, no such right existed before the Constitution was ratified. The contrary argument overlooks the revolutionary character of the government that the Framers conceived. Prior to the adoption of the Constitution, the States had joined together under the Articles of Confederation. In that system, "the States retained most of their sovereignty, like independent nations bound together only by treaties." Wesberry v. Sanders, 376 U.S. 1, 9 (1964). After the Constitutional Convention convened, the Framers were presented with, and eventually adopted a variation of, "a plan not merely to amend the Articles of Confederation but to create an entirely new National Government with a National Executive, National Judiciary, and a National Legislature." Id., at 10. In adopting that plan, the Framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States. See, e. g., FERC v. Mississippi, 456 U.S. 742, 791 (1982) (O'Connor, J., concurring in the judgment in part and dissenting in part) ("The Constitution . . . permitt[ed] direct contact between the National Government and the individual citizen"). In that National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation. As Justice Story observed, each Member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. . . . Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people." 1 Story §627. Representatives and Senators are as much officers of the entire union as is the President. States thus "have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. . . . It is no original prerogative of state power to appoint a representative, a senator, or president for the union." Ibid. [n.16]
We believe that the Constitution reflects the Framers' general agreement with the approach later articulated by Justice Story. For example, Art. I, §5, cl. 1 provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The text of the Constitution thus gives the representatives of all the people the final say in judging the qualifications of the representatives of any one State. For this reason, the dissent falters when it states that "the people of Georgia have no say over whom the people of Massachusetts select to represent them in Congress." Post, at 16.
Two other sections of the Constitution further support our view of the Framers' vision. First, consistent with Story's view, the Constitution provides that the salaries of representatives should "be ascertained by Law, and paid out of the Treasury of the United States," Art. I, §6, rather than by individual States. The salary provisions reflect the view that representatives owe their allegiance to the people, and not to States. Second, the provisions governing elections reveal the Framers' understanding that powers over the election of federal officers had to be delegated to, rather than reserved by, the States. It is surely no coincidence that the context of federal elections provides one of the few areas in which the Constitution expressly requires action by the States, namely that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof." This duty parallels the duty under Article II that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Art II., §1, cl. 2. These Clauses are express delegations of power to the States to act with respect to federal elections. [n.17]
This conclusion is consistent with our previous recognition that, in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution. Thus, we have noted that "[w]hile, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, . . . this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by §2 of Art. I." United States v. Classic, 313 U.S. 299, 315 (1941). Cf. Hawke v. Smith, 253 U.S. 221 (1920) ("[T]he power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented").
In short, as the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist.
THE PRECLUSION OF STATE POWER
Even if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the "basic principles of our democratic system" all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.
Much of the historical analysis was undertaken by the Court in Powell. See supra, at 9-12. There is, however, additional historical evidence that pertains directly to the power of States. That evidence, though perhaps not as extensive as that reviewed in Powell, leads unavoidably to the conclusion that the States lack the power to add qualifications.
The Convention and Ratification Debates
The available affirmative evidence indicates the Framers' intent that States have no role in the setting of qualifications. In Federalist Paper No. 52, dealing with the House of Representatives, Madison addressed the "qualifications of the electors and the elected." The Federalist No. 52, at 325. Madison first noted the difficulty in achieving uniformity in the qualifications for electors, which resulted in the Framers' decision to require only that the qualifications for federal electors be the same as those for state electors. Madison argued that such a decision "must be satisfactory to every State, because it is comfortable to the standard already established, or which may be established, by the State itself." Id., at 326. Madison then explicitly contrasted the state control over the qualifications of electors with the lack of state control over the qualifications of the elected:
"The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty five years; must have been seven years a citizen of the United States; must, at the time of his election be an inhabitant of the State he is to represent; and, during the time of his service must be in no office under the United States. 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." Ibid. [n.18]
Madison emphasized this same idea in Federalist 57:
"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." The Federalist No. 57, at 351 (emphasis added).
The provisions in the Constitution governing federal elections confirm the Framers' intent that States lack power to add qualifications. The Framers feared that the diverse interests of the States would undermine the National Legislature, and thus they adopted provisions intended to minimize the possibility of state interference with federal elections. For example, to prevent discrimination against federal electors, the Framers required in Art. I, §2, cl. 1, that the qualifications for federal electors be the same as those for state electors. As Madison noted, allowing States to differentiate between the qualifications for state and federal electors "would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone." The Federalist No. 52, at 326. Similarly, in Art. I, §4, cl. 1, though giving the States the freedom to regulate the "Times, Places and Manner of holding Elections," the Framers created a safeguard against state abuse by giving Congress the power to "by Law make or alter such Regulations." The Convention debates make clear that the Framers' overriding concern was the potential for States' abuse of the power to set the "Times, Places and Manner" of elections. Madison noted that "[i]t was impossible to foresee all the abuses that might be made of the discretionary power." 2 Farrand 240. Gouverneur Morris feared "that the States might make false returns and then make no provisions for new elections." Id., at 241. When Charles Pinckney and John Rutledge moved to strike the congressional safeguard, the motion was soundly defeated. Id., at 240-241. As Hamilton later noted: "Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy." The Federalist No. 59, at 363. See also ibid. (one justification for Times, Places and Manner Clause is that "[i]f we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government"). [n.19]
The Framers' discussion of the salary of representatives reveals similar concerns. When the issue was first raised, Madison argued that congressional compensation should be fixed in the Constitution, rather than left to state legislatures, because otherwise "it would create an improper dependence." 1 Farrand 216. George Mason agreed, noting that "the parsimony of the States might reduce the provision so low that . . . the question would be not who were most fit to be chosen, but who were
most willing to serve." Ibid.
When the issue was later reopened, Nathaniel Gorham stated that he "wished not to refer the matter to the State Legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them." Id., at 372. Edmund Randolph agreed that "[i]f the States were to pay the members of the Nat[ional] Legislature, a dependence would be created that would vitiate the whole System." Ibid. Rufus King "urged the danger of creating a dependence on the States," ibid., and Hamilton noted that "[t]hose who pay are the masters of those who are paid," id., at 373. The Convention ultimately agreed to vest in Congress the power to set its own compensation. See Art. I, §6. [n.20]
In light of the Framers' evident concern that States would try to undermine the National Government, they could not have intended States to have the power to set qualifications. Indeed, one of the more anomalous consequences of petitioners' argument is that it accepts federal supremacy over the procedural aspects of determining the times, places, and manner of elections while allowing the states carte blanche with respect to the substantive qualifications for membership in Congress.
The dissent nevertheless contends that the Framers' distrust of the States with respect to elections does not preclude the people of the States from adopting eligibility requirements to help narrow their own choices. See post, at 47-48. As the dissent concedes, post, at 53, however, the Framers were unquestionably concerned that the States would simply not hold elections for federal officers, and therefore the Framers gave Congress the power to "make or alter" state election regulations. Yet under the dissent's approach, the States could achieve exactly the same result by simply setting qualifications for federal office sufficiently high that no one could meet those qualifications. In our view, it is inconceivable that the Framers would provide a specific constitutional provision to ensure that federal elections would be held while at the same time allowing States to render those elections meaningless by simply ensuring that no candidate could be qualified for office. Given the Framers' wariness over the potential for state abuse, we must conclude that the specification of fixed qualifications in the constitutional text was intended to prescribe uniform rules that would preclude modification by either Congress or the States. [n.21]
We find further evidence of the Framers' intent in Art. 1, §5, cl. 1, which provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." That Art. I, §5 vests a federal tribunal with ultimate authority to judge a Member's qualifications is fully consistent with the understanding that those qualifications are fixed in the Federal Constitution, but not with the understanding that they can be altered by the States. If the States had the right to prescribe additional qualifications--such as property, educational, or professional qualifications--for their own representatives, state law would provide the standard for judging a Member's eligibility. As we concluded in Murdock v. Memphis, 20 Wall. 590 (1875), federal questions are generally answered finally by federal tribunals because rights which depend on federal law "should be the same everywhere" and "their construction should be uniform." Id., at 632. The judging of questions concerning rights which depend on state law is not, however, normally assigned to federal tribunals. See id., at 636. The Constitution's provision for each House to be the judge of its own qualifications thus provides further evidence that the Framers believed that the primary source of those qualifications would be federal law.
We also find compelling the complete absence in the ratification debates of any assertion that States had the power to add qualifications. In those debates, the question whether to require term limits, or "rotation," was a major source of controversy. The draft of the Constitution that was submitted for ratification contained no provision for rotation. [n.22] In arguments that echo in the preamble to Arkansas' Amendment 73, opponents of ratification condemned the absence of a rotation requirement, noting that "there is no doubt that senators will hold their office perpetually; and in this situation, they must of necessity lose their dependence, and their attachments to the people." [n.23] Even proponents of ratification expressed concern about the "abandonment in every instance of the necessity of rotation in office." [n.24] At several ratification conventions, participants proposed amendments that would have required rotation. [n.25]
The Federalists' responses to those criticisms and proposals addressed the merits of the issue, arguing that rotation was incompatible with the people's right to choose. As we noted above, Robert Livingston argued:
"The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights. This rotation is an absurd species of ostracism." 2 Elliot's Debates 292-293.
Similarly, Hamilton argued that the representatives' need for reelection rather than mandatory rotation was the more effective way to keep representatives responsive to the people, because "[w]hen a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument." Id., at 320. [n.26]
Regardless of which side has the better of the debate over rotation, it is most striking that nowhere in the extensive ratification debates have we found any statement by either a proponent or an opponent of rotation that the draft constitution would permit States to require rotation for the representatives of their own citizens. If the participants in the debate had believed that the States retained the authority to impose term limits, it is inconceivable that the Federalists would not have made this obvious response to the arguments of the pro rotation forces. The absence in an otherwise freewheeling debate of any suggestion that States had the power to impose additional qualifications unquestionably reflects the Framers' common understanding that States lacked that power.
In short, if it had been assumed that States could add additional qualifications, that assumption would have provided the basis for a powerful rebuttal to the arguments being advanced. The failure of intelligent and experienced advocates to utilize this argument must reflect a general agreement that its premise was unsound, and that the power to add qualifications was one that the Constitution denied the States. [n.27]
Congress' subsequent experience with state imposed qualifications provides further evidence of the general consensus on the lack of state power in this area. In Powell, we examined that experience and noted that during the first 100 years of its existence, "Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution." 395 U. S., at 542. Congress first confronted the issue in 1807 when it faced a challenge to the qualifications of William McCreery, a Representative from Maryland who allegedly did not satisfy a residency requirement imposed by that State. In recommending that McCreery be seated, the Report of the House Committee on
" `The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules . . . .' " Powell, 395 U. S., at 542, quoting 17 Annals of Cong. 871 (1807) (emphasis added). [n.28]
The Chairman of the House Committee on Elections elaborated during debate:
" `The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them.' " Powell, 395 U. S., at 542-543, quoting from 17 Annals of Cong. 872 (1807).
As we noted in Powell, the congressional debate over the Committee's recommendation tended to focus on the "narrow issue of the power of the States to add to the standing qualifications set forth in the Constitution," 395 U. S., at 543. The whole House, however, did not vote on the Committee's report, and instead voted only on a simple resolution: "Resolved, That William McCreery is entitled to his seat in this House." 17 Annals of Cong. 1238 (1807). That resolution passed by a vote of 89 to 18. Ibid.
Though the House Debate may be inconclusive, commentators at the time apparently viewed the seating of McCreery as confirmation of the States' lack of power to add qualifications. For example, in a letter to Joseph Cabell, Thomas Jefferson noted the argument that "to add new qualifications to those of the Constitution would be as much an alteration as to detract from them"; he then added: "And so I think the House of Representatives of Congress decided in some case; I believe that of a member from Baltimore." Letter of Jan. 31, 1814 to Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904).
Similarly, for over 150 years prior to Powell, commentators viewed the seating of McCreery as an expression of the view of the House that States could not add to the qualifications established in the Constitution. Thus, for example, referring to the McCreery debates, one commentator noted, "By the decision in this case, [and that in another contested election], it seems to have been settled that the States have not a right to require qualifications from members, different from, or in addition to, those prescribed by the constitution." Cases of Contested Elections in Congress 171 (M. Clarke & D. Hall eds. 1834) (emphasis in original). Other commentators viewed the incident similarly. See, e. g., G. Paschal, The Constitution of the United States 66 (1876) (citing McCreery to support the proposition that "[t]he Constitution having fixed the qualifications of members, no additional qualifications can rightfully be required by the States") (emphasis in original); G. McCrary, American Law of Elections §323 (4th ed. 1897) (citing McCreery and stating "A state law requiring that a Representative in Congress shall reside in a particular town and country within the district from which he is chosen is unconstitutional and void"); W. Sutherland, Notes on the Constitution of the United States 40 (1904) (citing McCreery to support statement that "[t]his clause fixes the qualifications of members so far as state action is concerned, and no additional qualifications can be required by the state"); C. Burdick, Law of the American Constitution 160 (1922) (citing McCreery to support the proposition that state imposed "limitations have been held . . . not to be effective"). Finally, it is clear that in Powell we viewed the seating of McCreery as the House's acknowledgment that the qualifications in the Constitution were fixed. See 395 U. S., at 542-543.
The Senate experience with state imposed qualifications further supports our conclusions. In 1887, for example, the Senate seated Charles Faulkner of West Virginia, despite the fact that a provision of the West Virginia Constitution purported to render him ineligible to serve. The Senate Committee on Privileges and Elections unanimously concluded that "no State can prescribe any qualification to the office of United States Senator in addition to those declared in the Constitution of the United States." S. Rep. No. 1, 50th Cong., 1st Sess., 4 (1887). The Senate Committee on Rules and Administration reached the same conclusion in 1964 when faced with a challenge to Pierre Salinger, who had been appointed to serve as Senator from California. See S. Rep. No. 1381, 88th Cong., 2d Sess., 5 ("It is well settled that the qualifications established by the U. S. Constitution for the office of U. S. Senator are exclusive, and a State cannot, by constitutional or statutory provisions, add to or enlarge upon those qualifications").
We recognize, as we did in Powell, that "congressional practice has been erratic" [n.29] and that the precedential value of congressional exclusion cases is "quite limited." Powell, 395 U. S., at 545-546. Nevertheless, those incidents lend support to the result we reach today.
Our conclusion that States lack the power to impose qualifications vindicates the same "fundamental principle of our representative democracy" that we recognized in Powell, namely that "the people should choose whom they please to govern them." Id., at 547 (internal quotation marks omitted).
As we noted earlier, the Powell Court recognized that an egalitarian ideal--that election to the National Legislature should be open to all people of merit--provided a critical foundation for the Constitutional structure. This egalitarian theme echoes throughout the constitutional debates. In The Federalist No. 57, for example, Madison wrote:
"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." The Federalist No. 57, at 351.
Similarly, hoping to persuade voters in New York that the Constitution should be ratified, John Stevens, Jr., wrote: "[N]o Government, that has ever yet existed in the world, affords so ample a field, to individuals of all ranks, for the display of political talents and abilities. . . . No man who has real merit, let his situation be what it will, need despair." 1 Bailyn 487, 492. And Timothy Pickering noted that, "while several of the state constitutions prescribe certain degrees of property as indispensable qualifications for offices, this which isproposed for the U. S. throws the door wide open for the entrance of every man who enjoys the confidence of his fellow citizens." Letter from T. Pickering to C. Tillinghast (Dec. 24, 1787), 1 Bailyn 289, 290 (emphasis in original). [n.30] Additional qualifications pose the same obstacle to open elections whatever their source. The egalitarian ideal, so valued by the Framers, is thus compromised to the same degree by additional qualifications imposed by States as by those imposed by Congress.
Similarly, we believe that state imposed qualifications, as much as congressionally imposed qualifications, would undermine the second critical idea recognized in Powell: that an aspect of sovereignty is the right of the people to vote for whom they wish. Again, the source of the qualification is of little moment in assessing the qualification's restrictive impact.
Finally, state imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people. From the start, the Framers recognized that the "great and radical vice" of the Articles of Confederation was "the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE orCOLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist." The Federalist No. 15, at 108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people. See, e. g., supra, at 22-23. The Framers implemented this ideal most clearly in the provision, extant from the beginning of the Republic, that calls for the Members of the House of Representatives to be "chosen every second Year by the People of the several States." Art. I, §2, cl. 1. Following the adoption of the 17th Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. As Chief Justice John Marshall observed: "The government of the union, then, . . . is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." McCulloch v. Maryland, 4 Wheat., at 404-405. [n.31] Ours is a "government of the people, by the people, for the people." A. Lincoln, Gettysburg Address (1863).
The Framers deemed this principle critical when they discussed qualifications. For example, during the debates on residency requirements, Morris noted that inthe House, "the people at large, not the States, are represented." 2 Farrand 217 (emphasis in original) (footnote omitted). Similarly, George Read noted that the Framers "were forming a Nati[ona]l Gov[ernmen]t and such a regulation would correspond little with the idea that we were one people." Ibid. (Emphasis in original.) James Wilson "enforced the same consideration." Ibid.
Consistent with these views, the constitutional structure provides for a uniform salary to be paid from the national treasury, allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process. The Constitution also provides that the qualifications of the representatives of each State will be judged by the representatives of the entire Nation. The Constitution thus creates a uniform national body representing the interests of a single people.
Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Cf. McCulloch v. Maryland, 4 Wheat., at 428-429 (1819) ("Those means are not given by the people of a particular State, not given by the constituents of the legislature, . . . but by the people of all the States. They are given by all, for the benefit of all--and upon theory should be subjected to that government only which belongs to all"). Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States. [n.32]
Petitioners attempt to overcome this formidable array of evidence against the States' power to impose qualifications by arguing that the practice of the States immediately after the adoption of the Constitution demonstrates their understanding that they possessed such power. One may properly question the extent to which the States' own practice is a reliable indicator of the contours of restrictions that the Constitution imposed on States, especially when no court has ever upheld a state imposed qualification of any sort. See supra, at 18-19. But petitioners' argument is unpersuasive even on its own terms. At the time of the Convention, "[a]lmost all the State Constitutions required members of their Legislatures to possess considerable property." SeeWarren 416-417. [n.33] Despite this near uniformity, only one State, Virginia, placed similar restrictions on members of Congress, requiring that a representative be, inter alia, a "freeholder." See 1788 Va. Acts, ch. 2, §2. [n.34] Just 15 years after imposing a property qualification, Virginia replaced that requirement with a provision requiring that representatives be only "qualified according to the constitution of the United States." 1813 Va. Acts, ch. 23, §2. Moreover, several States, including New Hampshire, Georgia, Delaware, and South Carolina, revised their Constitutions at around the time of the Federal Constitution. In the revised Constitutions, each State retained property qualifications for its own state elected officials yet placed no property qualification on its congressional representatives. [n.35]
The contemporaneous state practice with respect to term limits is similar. At the time of the Convention, States widely supported term limits in at least some circumstances. The Articles of Confederation contained a provision for term limits. [n.36] As we have noted, some members of the Convention had sought to impose term limits for Members of Congress. [n.37] In addition, many States imposed term limits on state officers, [n.38] four placed limits on delegates to the Continental Congress, [n.39] and several States voiced support for term limits for Members of Congress. [n.40] Despite this widespread support, no State sought to impose any term limits on its own federal representatives. Thus, a proper assessment of contemporaneous state practice provides further persuasive evidence of a general understanding that the qualifications in the Constitution were unalterable by the States. [n.41]
In sum, the available historical and textual evidence, read in light of the basic principles of democracy underlying the Constitution and recognized by this Court in Powell, reveal the Framers' intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution.
Petitioners argue that, even if States may not add qualifications, Amendment 73 is constitutional because it is not such a qualification, and because Amendment 73 is a permissible exercise of state power to regulate the "Times, Places and Manner of Holding Elections." We reject these contentions.
Unlike §§1 and 2 of Amendment 73, which create absolute bars to service for long term incumbents running for state office, §3 merely provides that certain Senators and Representatives shall not be certified as candidates and shall not have their names appear on the ballot. They may run as write in candidates and, if elected, they may serve. Petitioners contend that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is therefore consistent with the Constitution.
Petitioners support their restrictive definition of qualifications with language from Storer v. Brown, 415 U.S. 724 (1974), in which we faced a constitutional challenge to provisions of the California Elections Code that regulated the procedures by which both independent candidates and candidates affiliated with qualified political parties could obtain ballot position in general elections. The Code required candidates affiliated with a qualified party to win a primary election, and required independents to make timely filing of nomination papers signed by at least 5% of the entire vote cast in the last general election. The Code also denied ballot position to independents who had voted in the most recent primary election or who had registered their affiliation with a qualified party during the previous year.
In Storer, we rejected the argument that the challenged procedures created additional qualifications as "wholly without merit." Id., at 746, n. 16. We noted that petitioners "would not have been disqualified had they been nominated at a party primary or by an adequately supported independent petition and then elected at the general election." Ibid. We concluded that the California Code "no more establishes an additional requirement for the office of Representative than the requirement that the candidate win the primary to secure a place on the general ballot or otherwise demonstrate substantial community support." Ibid. See also Joyner v. Mofford, 706 F. 2d, at 1531; Hopfmann v. Connolly, 746 F. 2d 97, 103 (CA1 1984), vacated in part on other grounds, 471 U.S. 459 (1985). Petitioners maintain that, under Storer, Amendment 73 is not a qualification.
We need not decide whether petitioners' narrow understanding of qualifications is correct because, even if it is, Amendment 73 may not stand. As we have often noted, " `[c]onstitutional rights would be of little value if they could be . . . indirectly denied.' " Harman v. Forssenius,380 U.S. 528, 540 (1965), quoting Smith v. Allwright, 321 U.S. 649, 664 (1944). The Constitution "nullifies sophisticated as well as simple minded modes" of infringing on Constitutional protections. Lane v. Wilson, 307 U.S. 268, 275 (1939); Harman v. Forssenius, 380 U. S., at 540-541.
In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas Supreme Court recognized, Amendment 73 is an "effort to dress eligibility to stand for Congress in ballot access clothing," because the "intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." 316 Ark., at 266, 872 S. W. 2d, at 357. [n.42] We must, of course, accept the State Court's view of the purpose of its own law: we are thus authoritatively informed that the sole purpose of §3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution. Indeed, it cannot be seriously contended that the intent behind Amendment 73 is other than to prevent the election of incumbents. The preamble of Amendment 73 states explicitly: "[T]he people of Arkansas . . . herein limit the terms of elected officials." Sections 1 and 2 create absolute limits on the number of terms that may be served. There is no hint that §3 was intended to have any other purpose.
Petitioners do, however, contest the Arkansas Supreme Court's conclusion that the Amendment has the same practical effect as an absolute bar. They argue that the possibility of a write in campaign creates a real possibility for victory, especially for an entrenched incumbent. One may reasonably question the merits of that contention. [n.43] Indeed, we are advised by the state court that there is nothing more than a faint glimmer of possibility that the excluded candidate will win. [n.44] Our prior cases, too, have suggested that write in candidates have only a slight chance of victory. [n.45] But even if petitioners are correct that incumbents may occasionally win reelection as write in candidates, there is no denying that the ballot restrictions will make it significantly more difficult for the barred candidate to win the election. In our view, an amendment with the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses by handicapping a class of candidates cannot stand. To argue otherwise is to suggest that the Framers spent significant time and energy in debating and crafting Clauses that could be easily evaded. More importantly, allowing States to evade the Qualifications Clauses by "dress[ing] eligibility to stand for Congress in ballot access clothing" trivializes the basic principles of our democracy that underlie those Clauses. Petitioners' argument treats the Qualifications Clauses not as the embodiment of a grand principle, but rather as empty formalism. " `It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.' " Gomillion v. Lightfoot, 364 U.S. 339, 345 (1960), quoting Frost & Frost Trucking Co. v. Railroad Comm'n of California, 271 U.S. 583, 594 (1926).
Petitioners make the related argument that Amendment 73 merely regulates the "Manner" of elections, and that the Amendment is therefore a permissible exercise of state power under Article I, §4, cl. 1 (the Elections Clause) to regulate the "Times, Places and Manner" of
elections. [n.46] We cannot agree.
A necessary consequence of petitioners' argument is that Congress itself would have the power to "make or alter" a measure such as Amendment 73. Art. I, §4, cl. 1. See Smiley v. Holm, 285 U.S. 355, 366-367 (1932) ("[T]he Congress may supplement these state regulations or may substitute its own"). That the Framers would have approved of such a result is unfathomable. As our decision in Powell and our discussion above make clear, the Framers were particularly concerned that a grant to Congress of the authority to set its own qualifications would lead inevitably to congressional self aggrandizement and the upsetting of the delicate constitutional balance. See supra, at 9-11, and n. 10, supra. Petitioners would have us believe, however, that even as the Framers carefully circumscribed congressional power to set qualifications, they intended to allow Congress to achieve the same result by simply formulating the regulation as a ballot access restriction under the Elections Clause. We refuse to adopt an interpretation of the Elections Clause that would so cavalierly disregard what the Framers intended to be a fundamental constitutional safeguard.
Moreover, petitioners' broad construction of the Elections Clause is fundamentally inconsistent with the Framers' view of that Clause. The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide States with license to exclude classes of candidates from federal office. During the Convention debates, for example, Madison illustrated the procedural focus of the Elections Clause bynoting that it covered "[w]hether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh[oul]d all vote for all the representatives; or all in a district vote for a number allotted to the district." 2 Farrand 240. Similarly, during the ratification debates, proponents of the Constitution noted: "[T]he power over the manner only enables them to determine how these electors shall elect--whether by ballot, or by vote, or by any other way." 4 Elliot's Debates 71 (Steele statement at North Carolina ratifying convention) (emphasis in original). [n.47]
Hamilton made a similar point in The Federalist No. 60, in which he defended the Constitution's grant to Congress of the power to override state regulations. Hamilton expressly distinguished the broad power to set qualifications from the limited authority under the Elections Clause, noting that
"there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections." The Federalist No. 60, at 371 (emphasis in original).
As Hamilton's statement suggests, the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source ofpower to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.
Our cases interpreting state power under the Elections Clause reflect the same understanding. The Elections Clause gives States authority "to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved." Smiley v. Holm, 285 U. S., at 366. However, "[t]he power to regulate the time, place, and manner of elections does not justify, without more, the abridgement of fundamental rights." Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986). States are thus entitled to adopt "generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U.S. 780, 788, n. 9 (1983). For example, in Storer v. Brown, 415 U.S. 724 (1974), the case on which petitioners place principal reliance, we upheld the validity of certain provisions of the California Election Code. In so doing, we emphasized the States' interest in having orderly, fair, and honest elections "rather than chaos." Id., at 730. We also recognized the "States' strong interest in maintaining the integrity of the political process by preventing interparty raiding," id., at 731, and explained that the specific requirements applicable to independents were "expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot," id., at 733. In other cases, we have approved the States' interests in avoiding "voter confusion, ballot overcrowding, or the presence of frivolous candidacies," Munro v. Socialist Workers Party, 479 U.S. 189, 194-195 (1986), in "seeking to assure that elections are operated equitably and efficiently," Burdick v. Takushi, 504 U. S., at __ (slip op. at 5), and in "guard[ing] against irregularity and error in the tabulation of votes," Roudebush v. Hartke, 405 U.S. 15,25 (1972). In short, we have approved of state regulations designed to ensure that elections are " `fair and honest and . . . [that] some sort of order, rather than chaos, . . . accompan[ies] the democratic processes.' " Burdick v. Takushi, 504 U. S., at __ (slip op. at 4), quoting Storer, 415 U. S., at 730.
The provisions at issue in Storer and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates' support in the electoral process. Our cases upholding state regulations of election procedures thus provide little support for the contention that a state imposed ballot access restriction is constitutional when it is undertaken for the twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clauses. [n.48]
We do not understand the dissent to contest our primary thesis, namely that if the qualifications for Congress are fixed in the Constitution, then a State passed measure with the avowed purpose of imposing indirectly such an additional qualification violates the Constitution. The dissent, instead, raises two objections, challenging the assertion that the Arkansas amendment has the likely effect of creating a qualification, post, at 79, and suggesting that the true intent of Amendment 73 was not to evade the Qualifications Clause but rather to simply "level the playing field," post, at 83. Neither of these objections has merit.
As to the first, it is simply irrelevant to our holding today. As we note above in n. 45, supra, our prior cases strongly suggest that write in candidates will have only a slim chance of success, and the Arkansas plurality agreed. However, we expressly do not rest on this Court's prior observations regarding write in candidates. Instead, we hold that a state amendment is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly. Thus, the dissent's discussion of the evidence concerning the possibility that a popular incumbent will win a write in election is
simply beside the point.
As to the second argument, we find wholly unpersuasive the dissent's suggestion that Amendment 73 was designed merely to "level the playing field." As we have noted, supra, at 52, it is obvious that the sole purpose of Amendment 73 was to limit the terms of elected officials, both State and federal, and that Amendment 73, therefore, may not stand.
The merits of term limits, or "rotation," have been the subject of debate since the formation of our Constitution, when the Framers unanimously rejected a proposal to add such limits to the Constitution. The cogent arguments on both sides of the question that were articulated during the process of ratification largely retain their force today. Over half the States have adopted measures that impose such limits on some offices either directly or indirectly, and the Nation as a whole, notably by constitutional amendment, has imposed a limit on the number of terms that the President may serve. [n.49] Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate.
We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather--as have other importantchanges in the electoral process [n.50] --through the Amendment procedures set forth in Article V. The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation. That decision reflects the Framers' understanding that Members of Congress are chosen by separate constituencies, but that they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a "more perfect Union."
The judgment is affirmed.
It is so ordered.
Circuit Court also held that §3 was severable from the other provisions
of the amendment, but that the entire amendment was void under state law
for lack of an enacting clause. App. to Pet. for Cert. in No.
2 As we explained, that term may describe more than the provisions quoted, supra, at 1:
"In addition to the three qualifications set forth in Art. I, §2, Art. I, §3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from `any Office of honor, Trust or Profit under the United States'; Art. I, §6, cl. 2, provides that `no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and §3 of the 14th Amendment disqualifies any person `who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a `qualification' within the meaning of Art. I, §5, than those set forth in Art I, §2." Powell v. McCormack, 395 U.S. 486, 520, n. 41 (1969).
In Powell, we saw no need to resolve the question whether those additional provisions constitute "qualifications," because "both sides agree that Powell was not ineligible under any of these provisions." Ibid. We similarly have no need to resolve that question today: Because those additional provisions are part of the text of the Constitution, they have little bearing on whether Congress and the States may add qualifications to those that appear in the Constitution.
3 Art. I, §5, cl. 1, provides in part: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do business . . . ."
4 Justice Stewart dissented on procedural grounds, arguing that the case should have been dismissed as moot. See 395 U. S., at 559-561. Other than expressing agreement with the characterization of the case as raising constitutional issues which " `touch the bedrock of our political system [and] strike at the very heart of representative government,' " id., at 573, Justice Stewart did not comment on the merits.
5 The Powell Court emphasized the word "exclude" because it had been argued that the House Resolution depriving Powell of his seat should be viewed as an expulsion rather than an exclusion. Having rejected that submission, the Court expressed no opinion on issues related to the House's power to expel a member who has been sworn in and seated.
6 Though Powell addressed only the power of the House, the Court pointed out that its rationale was equally applicable to the Senate:
%Since Art I, §5, cl 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualification of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. I, §3, cl 3, establishes different age and citizenship requirements for membership in the Senate." Id., at 522, n. 44.
7 Though we recognized that Madison was responding to a proposal that would have allowed Congress to impose property restrictions, we noted that "Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of the discretionary power to establish any qualifications." Id., at 534.
8 Our examination of the history also caused us to reject the argument that the negative phrasing of the Clauses indicated thatthe Framers did not limit the power of the House to impose additional qualifications for membership. Id., at 537 (noting that the Committee of Style, which edited the Qualifications Clauses to incorporate "their present negative form," had "no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so"), id., at 539, quoting C. Warren, The Making of the Constitution 422, n. 1 (1947) (hereinafter Warren); see also 2 Farrand 553 (the Committee of Style was appointed "to revise the stile and arrange the articles which had been agreed to").
9 The text of the Qualifications Clauses also supports the result we reached in Powell. John Dickinson of Delaware observed that the enumeration of a few qualifications "would by implication tie up the hands of the Legislature from supplying omissions." 2 Farrand 123. Justice Story made the same point:
"It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others." 1 J. Story, Commentaries on the Constitution of the United States §625 (3d ed. 1858) (hereinafter Story). See also Warren 421 ("As the Constitution . . . expressly set forth the qualifications of age, citizenship, and residence, and as the Convention refused to grant to Congress power to establish qualifications in general, the maxim expressio unius exclusio alterius would seem to apply").
As Dickinson's comment demonstrates, the Framers' were well aware of the expressio unius argument that would result from their wording of the Qualifications Clauses; they adopted that wordingnonetheless. There thus is no merit either to the dissent's suggestion that Story was the first to articulate the expressio unius argument, see post at 25-26, or to the dissent's assertion that that argument is completely without merit.
10 The principle also incorporated the more practical concern that reposing the power to adopt qualifications in Congress would lead to a self perpetuating body to the detriment of the new republic. See, e. g., Powell, 395 U. S., at 533-534, quoting 2 Farrand 250 (Madison) (" `If the Legislature could regulate [the qualification of electors or elected], it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect' "); 395 U. S., at 535-536 (citing statements of Williamson and Madison emphasizing the potential for legislative abuse).
11 Contrary to the dissent's suggestion, post, at 37, we do not understand Powell as reading the Qualifications Clauses "to create a personal right to be a candidate for Congress." The Clauses did, however, further the interest of the people of the entire Nation in keeping the door to the National Legislature open to merit of every description.
12 Justice Thomas's dissent purports to agree with the outcome of Powell, but rejects the reasoning in the opinion. The dissent treats Powell as simply an application of the "default rule" that if "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." Post, at 4, 33, 43. However, there is not a word in the Court's opinion in Powell suggesting that the decision rested on the "default rule" that undergirds the dissent's entire analysis. On the contrary, as the excerpt from Nixon quoted in the text plainly states, our conclusion in Powell was based on our understanding of the "fixed meaning of `[q]ualifications' set forth in Art. I, §2." We concluded that the Framers affirmatively intended the qualifications set forth in the text of the Constitution to be exclusive in order to effectuate the principle that in a representative democracy the people should choose whom they please to govern them.
Moreover, the Court has never treated the dissent's "default rule" as absolute. In McCulloch v. Maryland, 4 Wheat. 316 (1819), for example, Chief Justice Marshall rejected the argument that the Constitution's silence on state power to tax federal instrumentalities requires that States have the power to do so. Under the dissent's unyielding approach, it would seem that McCulloch was wrongly decided. Similarly, the dissent's approach would invalidate our dormant Commerce Clause jurisprudence, because the Constitution is clearly silent on the subject of state legislation that discriminatesagainst interstate commerce. However, though Justice Thomas has endorsed just that argument, see, e. g., Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U. S. __ (1995) (Scalia, J., concurring in judgment, joined by Thomas, J.), the Court has consistently rejected that argument and has continued to apply the dormant Commerce Clause, see, e. g., id., at __ (slip op., at 3-4); Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988).
13 Our decision in Powell and its historical analysis were consistent with prior decisions from state courts. For example, in State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948), the Wyoming Supreme Court undertook a detailed historical analysis and concluded that the Qualifications Clauses were exclusive. Several other courts reached the same result, though without performing the same detailed historical analysis. See, e. g., Hellmann v. Collier, 217 Md. 93, 141 A. 2d 908 (1958); State ex rel. Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); State ex rel. Eaton v. Schmahl, 140 Minn. 219, 167 N. W. 481 (1918); see generally State ex rel. Johnson v. Crane, 65 Wyo., at 204-213, 197 P. 2d, at 869-874 (citing cases).
The conclusion and analysis were also consistent with the positions taken by commentators and scholars. See, e. g., n. 9, supra; see also Warren 412-422 (discussing history and concluding that "[t]he elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications").
14 More recently, the commentators have split, with some arguing that state imposed term limits are constitutional, see, e. g., Gorsuch & Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State Imposed Term Limitation, 20 Hofstra L. Rev. 341 (1991); Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U. Pitt. L. Rev. 97 (1991); Safranek, Term Limitations: Do the Winds of Change Blow Unconstitutional?, 26 Creighton L. Rev. 321 (1993), and others arguing that they are not, see, e. g., Lowenstein, Are Congressional Term Limits Constitutional?, 18 Harv. J. L. & Pub. Policy 1 (1994); Eid & Kolbe, The New Anti Federalism: The Constitutionality of State Imposed Limits on Congressional Terms of Office, 69 Denv. L. Rev. 1 (1992); Comment, Congressional Term Limits: Unconstitutional by Initiative, 67 Wash. L. Rev. 415 (1992).
15 Thus, contrary to the dissent's suggestion, post, at 13, Justice Story was not the first, only, or even most influential proponent of the principle that certain powers are not reserved to the States despite constitutional silence. Instead, as Chief Justice Marshall's opinion in McCulloch reveals, that principle has been a part of our jurisprudence for over 175 years.
16 The Constitution's provision for election of Senators by the state legislatures, see Art. I, §3, cl. 1, is entirely consistent with this view. The power of state legislatures to elect Senators comes from an express delegation of power from the Constitution, and thus was not at all based on some aspect of original state power. Of course, with the adoption of the Seventeenth Amendment, state power over the election of Senators was eliminated, and Senators, like Representatives, were elected directly by the people.
17 The Clauses also reflect the idea that the Constitution treats both the President and Members of Congress as federal officers.
18 The dissent places a novel and implausible interpretation on this paragraph. Consistent with its entire analysis, the dissent reads Madison as saying that the sole purpose of the Qualifications Clause was to set minimum qualifications that would prevent the States from sending incompetent representatives to Congress; in other words, Madison viewed the Clause as preventing the States from opening the door to this part of the federal service too widely. See post at 60-62.
The text of Federalist No. 52 belies the dissent's reading. First, Madison emphasized that "[t]he qualifications of the elected . . . [were] more susceptible of uniformity." His emphasis on uniformity would be quite anomalous if he envisioned that States would create for their representatives a patchwork of qualifications. Second, the idea that Madison was in fact concerned that States would open the doors to national service too widely is entirely inconsistent with Madison's emphasizing that the Constitution kept "the door . . . 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." The Federalist No. 52, at 326.
Finally the dissent argues that "Madison could not possibly have been rebuking the States for setting unduly high qualifications for their representatives in Congress," post, at 61, and suggests that Madison's comments do not reflect "an implicit criticism of the States for setting unduly high entrance barriers," post, at 62. We disagree. Though the dissent attempts to minimize the extensiveness of state imposed qualifications by focusing on the qualifications that States imposed on delegates to Congress and the age restrictions that they imposed on state legislators, the dissent neglects to give appropriate attention to the abundance of property, religious, and other qualifications that States imposed on state elected officials. As we describe in some detail, infra, at 45-49, nearly every State had property qualifications, and many States had religious qualifications, term limits, or other qualifications. As Madison surely recognized, without a constitutional prohibition, these qualifications could be applied to federal representatives. We cannot read Madison's comments on the "open door" of the Federal Government as anything but a rejection of the "unduly high" barriers imposed by States.
19 The dissent attacks our holding today by arguing that the Framers' distrust of the States extended only to measures adopted by "state legislatures," and not to measures adopted by "the people themselves." Post, at 48. See also ibid. ("These delegates presumably did not want state legislatures to be able to tell Members of Congress from their State" how to vote) (emphasis added). The novelty and expansiveness of the dissent's attack is quite astonishing. We are aware of no case that would even suggest that the validity of a state law under the Federal Constitution would depend at all on whether the state law was passed by the state legislature or by the people directly through amendment of the state constitution. Indeed, no party has so argued. Quite simply, in our view, the dissent's distinction between state legislation passed by the state legislature and legislation passed by state constitutional amendment is untenable. The qualifications in the Constitution are fixed, and may not be altered by either States or their legislatures.
20 The Framers' decision to reject a proposal allowing for States to recall their own representatives, see 1 Farrand 20, 217, reflects these same concerns.
21 The dissent's arguments concerning these provisions of the Constitution, see post, at 48-53, simply reinforce our argument that the constitutional provisions surrounding elections all reveal the Framers' basic fear that the States might act to undermine the National Legislature. For example, as the dissent concedes, the Framers' feared that States would use the control over salaries to influence the votes of their representative. See post, at 48-49. Similarly, the dissent concedes that the Times, Places and Manner Clause reflects the Framers' fear that States would not conduct federal elections at all. See post, at 53. We believe that the dissent's reading of the provisions at issue understates considerably the extent of the Framers' distrust. However, even under the dissent's reading of the provisions, the text of the Constitution unquestionably reveals the Framers' distrust of the States regarding elections, and thus provides powerful evidence supporting our view that the qualifications established in the Constitution are exclusive.
22 A proposal requiring rotation for members of the House was proposed at the Convention, see 1 Farrand 20, but was defeated unanimously, see id., at 217. There is no record of any debate on either occasion.
23 2 Elliot's Debates 309-310 (N. Y., Smith). See also id., at 287-288 (N. Y., G. Livingston) (Senators will enjoy "a security oftheir re election, as long as they please. . . . In such a situation, men are apt to forget their dependence, lose their sympathy, and contract selfish habits. . . . The senators will associate only with men of their own class, and thus become strangers to the condition of the common people"); id., at 30-31 (Mass., Turner) ("Knowing the numerous arts, that designing men are prone to, to secure their election, and perpetuate themselves, it is my hearty wish that a rotation may be provided for"); id., at 62 (Mass., Kingsley) ("[W]e are deprived of annual elections, have no rotation, and cannot recall our members; therefore our federal rulers will be masters, and not servants"); Samuel Bryan, "Centinel I," Independent Gazetteer (Phil., Oct. 5, 1787), 1 Debate on the Constitution 52, 61 (B. Bailyn ed. 1990) (hereinafter Bailyn) ("as there is no exclusion by rotation, [Senators] may be continued for life, which, from their extensive means of influence, would follow of course"); Letter from George Lee Turberville to Madison (Dec. 11, 1787), 1 Bailyn 477, 479 ("Why was not that truely republican mode of forcing the Rulers or sovereigns of the states to mix after stated Periods with the people again--observed"); Mercy Otis Warren, "A Columbian Patriot" (Boston, Feb. 1788), 2 Bailyn 284, 292 ("There is no provision for a rotation, nor any thing to prevent the perpetuity of office in the same hands for life. . . . By this neglect we lose the advantages of that check to the overbearing insolence of office, which by rendering him ineligible at certain periods, keeps the mind of man in equilibrio, and teaches him the feelings of the governed").
24 Letter of December 20, 1787 from Thomas Jefferson to James Madison. 1 id., at 209, 211. In 1814, in another private letter, Jefferson expressed the opinion that the States had not abandoned the power to impose term limits. See Letter of Jan. 31, 1814 to Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904). Though he noted that his reasoning on the matter "appears to me to be sound," he went on to note:
%but, on so recent a change of view, caution requires us not to be too confident, and that we admit this to be one of the doubtful questions on which honest men may differ with the purest of motives; and the more readily, as we find we have differed from ourselves on it." Id., at 83.
The text of Jefferson's response clearly belies the dissent's sugges
tion that Jefferson "himself did not entertain serious doubts of its correctness." Post, at 32, n. 14.
25 See n. 40, infra.
26 George Washington made a similar argument:
"The power under the Constitution will always be in the People. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled." 1 Bailyn 305, 306-307.
27 Petitioners set forth several other arguments to support their contention that the Convention and ratification debates reveal that the qualifications in the Qualifications Clauses were not intended to be exclusive. We find none of these persuasive.
Petitioners first observe that the notes of Edmund Randolph, who was a member of the Committee of Detail, reveal that an early draft of the Qualifications Clause provided:
%The qualifications of (a) delegates shall be the age of twenty five years at least. and citizenship: (and any person possessing these qualifications may be elected except)." 2 Farrand 139 (footnote omitted).
Petitioners suggest that the deletion of the parenthetical material from the Clause suggests that the Framers did not intend the Qualifications Clause to be exclusive. We reject this argument. First, there is no evidence that the draft in Randolph's notes was ever presented to the Convention, and thus the deletion of the Clause tells us little about the views of the Convention as a whole. Moreover, even assuming that the Convention had seen the draft, the deletion of the language without comment is at least as consistent with a belief--as suggested by Dickinson, see n. 9, supra--that the language was superfluous as with a concern that the language was inappropriate. Finally, contrary to the rather ingenious argument advanced in the dissent, see post at 46, it seems to us irrelevant that the draft in question did not include a comparable parenthetical clause referring to "elected" Senators because the draft contemplated that senators, unlike Representatives, would not be chosen by popular election.
Nor is there merit to the argument that the inclusion in the Committee's final draft of a provision allowing each House to add property qualifications, see 2 Farrand 179, is somehow inconsistent with our holding today. First, there is no conflict between our holding that the qualifications for Congress are fixed in the Constitution and a provision in the Constitution itself providing for property qualifications. Indeed, that is why our analysis is consistent with the other disqualifications contained in the Constitution itself. See n. 2, supra. The Constitution simply prohibits the imposition by either States or Congress of additional qualifications that are not contained in the text of the Constitution. Second, of course, the property provision was deleted, thus providing further evidence that the Framers wanted to minimize the barriers that would exclude the most able citizens from service in the National government.
Respondent Republican Party of Arkansas also argues that the negative phrasing of the Qualifications Clauses suggests that they were not meant to be exclusive. Brief for Respondents Republican Party of Arkansas et al. 5-6. This argument was firmly rejected in Powell, see 395 U. S., at 537-539, and n. 73; see also Warren 422, n. 1, and we see no need to revisit it now.
28 We recognize that the "Committee of Elections were not unanimous in these sentiments," and that a "minority advocated the right of the State Legislature to prescribe additional qualifications to the members from the respective States." 17 Annals of Cong. 873 (1807).
29 See, e. g., Powell, 395 U. S., at 544-546 (noting examples).
30 See also 2 Farrand 123 (it is "improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards") (Dickinson); The Federalist No. 36, at 217 ("There are strong minds in every walk of life that will rise superior to the disadvantages of situation and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all") (Hamilton); N. Webster, "A Citizen of America," (Phil., Oct. 17, 1787), 1 Bailyn 129, 142 ("Money is not made a requisite--the places of senators are wisely left open to all persons of suitable age and merit").
31 Cf. Hawke v. Smith, 253 U.S. 221, 226 (1920) ("The Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the people of the United States"). Compare U. S. Const., Preamble ("We the People") with The Articles of Confederation, reprinted in 2 Bailyn 926 ("we the under signed Delegates of the States").
32 There is little significance to the fact that Amendment 73 was adopted by a popular vote, rather than as an act of the state legislature. See n. 19, supra. In fact, none of the petitioners argues that the constitutionality of a state law would depend on themethod of its adoption. This is proper, because the voters of Arkansas, in adopting Amendment 73, were acting as citizens of the State of Arkansas, and not as citizens of the National Government. The people of the State of Arkansas have no more power than does the Arkansas Legislature to supplement the qualifications for service in Congress. As Chief Justice Marshall emphasized in McCulloch, "Those means are not given by the people of a particular State, not given by the constituents of the legislature, . . . but by the people of all the States." 4 Wheat., at 428-429.
The dissent concedes that the people of the Nation have an interest in preventing any State from sending "immature, disloyal, or unknowledgeable representatives to Congress," post, at 26, but does not explain why the people of the Nation lack a comparable interest in allowing every State to send mature, loyal, and knowledgeable representatives to Congress. In our view, the interest possessed by the people of the Nation and identified by the dissent is the same as the people's interest in making sure that, within "reasonable limitations, the door to 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." The Federalist No. 52, at 326.
33 See, e. g., 7 Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies 3816 (F. Thorpe ed. 1909) (hereinafter Thorpe) (Virginia) (members of state legislature must be freeholders); 4 id., at 2460, 2461 (New Hampshire) (freehold estate of 200 pounds for state senators; estate of 100 pounds, at least half of which is freehold, for state representatives); 3 id., at 1691, 1694 (Maryland) (real and personal property of over 500 pounds for House of Delegates; real and personal property of 1000 pounds for Senate); id., at 1897, 1898 (freehold estate of 300 pounds or personal estate of 600 pounds for State Senators; freehold estate of 100 pounds or ratable estate of 200 pounds for State Representatives); 1 id., at 562 (Delaware) (state legislators must be freeholders); 5 id., at 2595 (New Jersey) (Members of Legislative Council must be freeholders and must have real and personal property of 1,000 pounds; Members of Assembly must have real and personal property of 500 pounds); id., at 2631 (New York) (state senators must be freeholders); id., at 2790 (North Carolina (100 acres of land for House; 300 acres of land in Senate); 2 id., at 779 (Georgia) (150 acres of land or property of 250 pounds); 6 id., at 3251 (South Carolina) (freehold estate of 2,000 pounds for state senate).
34 Judge Tucker expressed doubt about the constitutionality of the provisions of the Virginia statute, noting that "these provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory." 1 W. Blackstone, Commentaries Appendix 213 (S. Tucker ed. 1803). Judge Tucker noted the two primary arguments against the power to add such a qualification:
"First, that in a representative government, the people have an undoubted right to judge for themselves of the qualification of their delegate, and if their opinion of the integrity of their representative will supply the want of estate, there can be no reason for the government to interfere, by saying, that the latter shall overbalance the former.
"Secondly; by requiring a qualification in estate it may often happen, that men the best qualified in other respects might be incapacitated from serving their country." Ibid.
35 See 4 Thorpe 2477, 2479 (New Hampshire) (100 pounds for House; 200 pounds for Senate); 2 id., at 786 (Georgia) (200 acres of land or 150 pounds for House; 250 acres of land or 250 pounds for Senate); 6 id., at 3259 (South Carolina) (500 acres and 10 slaves or 150 pounds sterling for House; 300 pounds sterling for Senate); 1 id., at 570, 571 (Delaware) (freehold for House; freehold estate of 200 acres or real and personal property of 1,000 pounds for Senate). Pennsylvania amended its Constitution in 1790. Neither the old constitution nor the amended one contained property qualifications for state representatives. See 5 id., at 3084; id., at 3092-3093.
Several State Constitutions also imposed religious qualifications on state representatives. For example, New Hampshire's Constitution of 1784 and its Constitution of 1792 provided that members of the State Senate and House of Representatives be "of the protestant religion." 4 id., at 2460, 2461-2462 (1784 Constitution); id., at 2477, 2479 (1792 Constitution). North Carolina's Constitution provided that "no clergyman, or preacher of the gospel, of any denomination, shall be capable of being a member of either the Senate, House of Commons, or Council of State," 5 id., at 2793, and that "no person, who shall deny the being of God or the truth of the Protestant religion . . . shall be capable of holding any office or place of trust or profit in the civil department within this State," ibid. Georgia and South Carolina also had religious qualifications in their Constitutions for state legislators, see 2 id., at 779 (Georgia) ("of the Protestant religion"); 6 id., at 3252 (South Carolina) (must be "of the Protestant religion"), but deleted those provisions when they amended their Constitutions, in 1789, see 2 id., at 785, and in 1790, see 6 id., at 3258, respectively. Article VI of the Federal Constitution, however, prohibited States from imposing similar qualifications on federal legislators.
36 See 2 Bailyn 926, 927 ("[N]o person shall be capable of being a delegate for more than three years in any term of six years").
37 See 1 Farrand 20 ("Res[olved] that the members of the first branch of the National Legislature ought . . . to be incapable of re election for the space of [blank] after the expiration of their term of service"). See also n. 22, supra.
38 See, e. g., G. Wood, Creation of the American Republic, 1776-1787, p. 140 (1969) (noting that seven of the ten State Constitutions drafted in 1776-1777 provided for term limits on their state executives); see also App. to Brief for State Petitioner 1b--34b (describing provisions of State Constitutions).
39 3 Thorpe 1695-1697 (Maryland); 4 id., at 2467 (New Hampshire); 5 id., at 3085 ((Pennsylvania); 5 id., at 2793 (North Carolina).
40 New York attached to its ratification a list of proposed amendments and "enjoin[ed] it upon their representatives in Congress to exert all their influence, and use all reasonable means, to obtain a ratification." 1 Elliot's Debates 329. One of the proposed amendments was "That no person be eligible as a senator for more than six years in any term of twelve years." Id., at 330. In Virginia, the Convention similarly "enjoin[ed] it upon their representatives," 2 Bailyn 564, to adopt "a Declaration or Bill of Rights," id., at 558, which would include the statement that members of the Executive and Legislative Branches "should, at fixed periods, be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct," id., at 559. The North Carolina convention proposed nearly identicallanguage, see id., at 566, though that Convention ultimately did not ratify the Constitution, see 4 Elliot's Debates 250-251. Thus, at least three states proposed some form of constitutional amendment supporting term limits for Members of Congress.
41 Petitioners and the dissent also point out that Georgia, Maryland, Massachusetts, Virginia, and North Carolina added district residency requirements, and petitioners note that New Jersey and Connecticut established nominating processes for congressional candidates. They rely on these facts to show that the States believed they had the power to add qualifications. We again are unpersuaded. First, establishing a nominating process is no more setting a qualification for office than is creating a primary. Second, it seems to us that States may simply have viewed district residency requirements as the necessary analog to state residency requirements. Thus state practice with respect to residency requirements does not necessarily indicate that States believed that they had a broad power to add restrictions. Finally, we consider the number of state imposed qualifications to be remarkably small. Despite the array of property, religious, and other qualifications that were contained in State Constitutions, petitioners and the dissent can point to only one instance of a state imposed property qualification on candidates for Congress, and five instances of district residency requirements. The state practice seems to us notable for its restraint, and thus supports the conclusion that States did not believe that they generally had the power to add qualifications.
Nor are we persuaded by the more recent state practice involving qualifications such as those that bar felons from being elected. As we have noted, the practice of States is a poor indicator of the effect of restraints on the States, and no court has ever upheld one of these restrictions. Moreover, as one moves away from 1789, it seems to us that state practice is even less indicative of the Framers' understanding of state power.
Finally, it is important to reemphasize that the dissent simply has no credible explanation as to why almost every State imposed property qualifications on state representatives but not on federalrepresentatives. The dissent relies first on the obvious but seemingly irrelevant proposition that the state legislatures were larger than state congressional delegations. Post, at 74, n. 37. If anything, the smaller size of the congressional delegation would have made States more likely to put qualifications on federal representatives since the election of any "pauper" would have had proportionally greater significance. The dissent also suggests that States failed to add qualifications out of fear that others, e. g., Congress, believed that States lacked the power to add such qualifications. Of course, this rationale is perfectly consistent with our view that the general understanding at the time was that States lacked the power to add qualifications.
42 Justice Dudley noted in his concurrence: "I am reassured by the style of this case, U. S. Term Limits, Inc. That name implies just what this amendment is: A practical limit on the terms of the members of the Congress." 316 Ark., at 276, 872 S. W. 2d, at 364 (opinion concurring in part and dissenting in part).
43 The uncontested data submitted to the Arkansas Supreme Court indicate that, in over 1,300 Senate elections since the passage of the Seventeenth Amendment in 1913, only one has been won by a write in candidate. In over 20,000 House elections since the turn of the century, only five have been won by write in candidates. App. 201-202. Indeed, it is for this reason that the Arkansas Supreme Court found the possibility of a write in victory to be a mere "glimme[r] of opportunity for those disqualified." 316 Ark., at 266, 872 S. W. 2d, at 357; see also id., at 276, 872 S. W. 2d, at 364 (Dudley, J., concurring in part and dissenting in part) ("as a practical mat ter, the amendment would place term limits on service in theCongress").
44 Contrary to the dissent, post, at 80, we read a majority of the Arkansas Supreme Court as holding that Amendment 73 has the same practical effect as an absolute bar. See 316 Ark., at 266, 872 S. W. 2d, at 357 (plurality opinion) (the "intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service"); id., at 276, 872 S. W. 2d, at 364 (Dudley, J., concurring in part and dissenting in part) ("That name implies just what this amendment is: A practical limit on the terms of the members of the Congress"). However, as we note in the text, infra, at 53-54, we do not rely on the State Court's finding on this point. See also infra, at 59.
45 We noted in Lubin v. Panish, 415 U.S. 709 (1974), that "[t]he realities of the electoral process . . . strongly suggest that `access' via write in votes falls far short of access in terms of having the name of the candidate on the ballot." Id. at 719, n. 5; see also Anderson v. Celebrezze, 460 U.S. 780, 799, n. 26 (1983) ("We have previously noted that [a write in] opportunity is not an adequate substitute for having the candidates name appear on the printed ballot"); United States v. Classic, 313 U.S. 299, 313 (1941) ("Even if . . . voters may lawfully write into their ballots, cast at the general election, the name of a candidate rejected at the primaryand have their ballots counted, the practical operation of the primary law . . . is such as to impose serious restrictions upon the choice of candidates by the voters"); Burdick v. Takushi, 504 U. S. __, __, n. 7 (slip op., at 9, n. 7) (1992) ("If the dissent were correct in suggesting that requiring primary voters to select a specific ballot impermissibly burdened the right to vote, it is clear under our decisions that the availability of a write in option would not provide an adequate remedy").
46 Article I, §4, cl. 1 provides:
"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
47 See also "The Republican," Connecticut Courant (Hartford, Jan. 7, 1788), 1 Bailyn 710, 713 ("The constitution expressly provides that the choice shall be by the people, which cuts off both from the general and state Legislatures the power of so regulating the mode of election, as to deprive the people of a fair choice").
48 Nor does Clements v. Fashing, 457 U.S. 957 (1982) support petitioners. In Clements, the Court rejected First and Fourteenth Amendment challenges to Texas' so called "resign to run" provision. That provision treated an elected state official's declaration of candidacy for another elected office as an automatic resignation from the office then held. We noted that the regulation was a permissible attempt to regulate state officeholders. See id., at 972 ("Appellees are elected state officeholders who contest restrictions on partisan political activity") (emphasis deleted); id., at 974, n. 1 (Stevens, J., concurring in part and concurring in judgment) ("The fact that appellees hold state office is sufficient to justify a restriction on their ability to run for other office that is not imposed onthe public generally"). As the Ninth Circuit recognized in upholding a similar resign to run statute from Arizona, "[t]he burden on candidacy . . . is indirect and attributable to a desire to regulate state officeholders and not to impose additional qualifications to serving in Congress." Joyner v. Mofford, 706 F. 2d 1523, 1528 (1983); see also Signorelli v. Evans, 637 F. 2d 853, 859 (CA2 1980) ("New York's purpose is to regulate the judicial office that [the candidate] holds, not the Congressional office he seeks"). Moreover, as now Chief Judge Newman observed while upholding similar restrictions imposed by New York, such provisions "plac[e] no obstacle between [a candidate] and the ballot or his nomination or his election. He is free to run and the people are free to choose him." Id., at 858.
49 See U. S. Const., Amdt. 22 (1951) (limiting Presidents to two 4 year terms).
50 See, e. g., Amdt. 17 (1913) (direct elections of Senators); Amdt. 19 (1920) (extending suffrage to women); Amdt. 22 (1951) (Presidential term limits); Amdt. 24 (1964) (prohibition against poll taxes); Amdt. 26 (1971) (lowering age of voter eligibility to 18).