CRS Annotated Constitution

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State Additions.—However much Congress may have deviated from the principle that the qualifications listed in the Constitution are exclusive when the issue has been congressional enlargement of those qualifications, it has been uniform in rejecting efforts by the States to enlarge the qualifications. Thus, the House in 1807 seated a Member– elect who was challenged as not being in compliance with a state law imposing a twelve–month durational residency requirement in the district, rather than the federal requirement of being an inhabitant of the State at the time of election; the state requirement, the House resolved, was unconstitutional.311 Similarly, both the House and Senate have seated other Members–elect who did not meet additional state qualifications or[p.114]who suffered particular state disqualifications on eligibility, such as running for Congress while holding particular state offices.312

Supplement: [P. 114, add to text following n.312:]

The long–debated issue whether the States could add to the qualifications that the Constitution prescribed for Senators and Representations was finally resolved, by a surprisingly close vote, in U.S. Term Limits, Inc. v. Thornton.8 Arkansas, along with twenty–two other States, all but two by citizen initiatives, had imposed maximum numbers of terms that Members of Congress could serve. In this case, the Court held that the Constitution’s qualifications clauses 9 establish exclusive qualifications for Members that may not be added to either by Congress or the States. The four–Justice dissent argued that while Congress had no power to increase qualifications, the States did.

Richly embellished with disputatious arguments about the text of the Constitution, the history of its drafting and ratification, and the practices of Congress and the States in the early years of the United States, the actual determination of the Court as controverted by the dissent was much more over founding principles than more ordinary constitutional interpretation.10

Thus, the Court and the dissent drew different conclusions from the text of the qualifications clauses and the other clauses respecting the elections of Members of Congress; the Court and the dissent reached different conclusions after a minute examination of the records of the Convention respecting the drafting of these clauses and the ratification debates; and the Court and the dissent were far apart on the meaning of the practices in the States in legislating qualifications and election laws and in Congress in deciding election contests based on qualifications disputes.

A default principle relied on by both Court and dissent, given the arguments drawn from text, creation, and practice, had to do with the fundamental principle underlying the Constitution’s adoption. In the dissent’s view, the Constitution was the result of the resolution of the peoples of the separate States to create the National Government. The conclusion to be drawn from this was that the peoples in the States agreed to surrender powers expressly forbidden them and to surrender those limited powers that they had delegated to the Federal Government expressly or by necessary implication. They retained all other powers and still retained them. Thus, “where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the States enjoy it.” 11 The Constitution’s silence about the States being limited meant that the States could legislate additional qualifications.

Radically different were the views of the majority of the Court. After the adoption of the Constitution, the States had two kinds of powers: powers that they had before the founding and powers that were reserved to them. The States could have no reserved powers with respect to the Federal Government. “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.’ ” 12 The States could not before the founding have possessed powers to legislate respecting the Federal Government, and since the Constitution did not delegate to the States the power to prescribe qualifications for Members of Congress, the States did not have it.13

Evidently, the opinions in this case reflect more than a decision on this particular dispute. They rather represent conflicting philosophies within the Court respecting the scope of national power in relation to the States, an issue at the core of many controversies today.

Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons].313 The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut, five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.


The Census Requirement

While Sec. 2 expressly provides for an enumeration of persons, Congress has repeatedly directed an enumeration not only of the[p.115]free persons in the States, but also of those in the territories, and has required all persons over eighteen years of age to answer an ever– lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court;314 it is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action. Although taking an enlarged view of its power in making the enumeration of persons called for by this section, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is taken.315 It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929,316 it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so–called “method of major fractions,” which had been earlier employed in the apportionment of 1911 and which has now been replaced with the “method of equal proportions.” Following the 1990 census, a State that had lost a House seat as a result of the use of this formula sued, alleging a violation of the “one person, one vote” rule. Exhibiting considerable deference to Congress and a stated appreciation of the difficulties in achieving interstate equalities, the Supreme Court upheld the formula and the resultant apportionment.317

While requiring the election of Representatives by districts, Congress has left it to the States to define the areas from which members should be chosen. This has occasioned a number of disputes concerning the validity of action taken by the States. In Ohio ex rel. Davis v. Hildebrant,318 a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States produced a series of cases in which the right of the Governor[p.116]to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to state legislatures by the Constitution, the Court decided that it was legislative in character and subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the state constitution.319

Clause 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.


Section 3. Clause 1. [The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six Years; and each Senator shall have one vote].320

Clause 2. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year,321 [and if Vacancies happen by Resignation or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies].322


Clause 3. 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.

Clause 4. The Vice President of the United States shall be President of the Senate but shall have no Vote, unless they be equally divided.

Clause 5. The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of the President of the United States.

Clause 6. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Clause 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.


311 1 A. Hinds’ Precedents of the House of Representatives (Washington: 1907), Sec. 414.
312 Id., §§ 415–417. The court holdings, predominantly state courts, appear almost uniformly to be that the States may not add to the qualifications. E.g., Shub v. Simpson, 196 Md. 177, 76 A. 2d 332, appeal dismd. 340 U.S. 881 (1950); Odegard v. Olson, 264 Minn, 439, 119 N.W. 2d 717 (1963); State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P. 2d 864 (1948); Florida ex rel. Davis v. Adams, 238 So. 2d 415 (Fla. 1970), stay granted, 400 U.S. 1203 (1970) (Justice Black in Chambers); Stack v. Adams, 315 F. Supp. 1295 (D.C. N.D. Fla. 1970), interim relief granted, 400 U.S. 1203 (1970) (Justice Black in Chambers).
313 The part of this clause relating to the mode of apportionment of representatives among the several States, was changed by the Fourteenth Amendment, Sec. 2 and as to taxes on incomes without apportionment, by the Sixteenth Amendment.
314 Knox v. Lee (Legal Tender Cases). 12 Wall. (79 U.S.) 457, 536 (1871).
315 For an extensive history of the subject, see L. Schmeckebier, Congressional Apportionment (Washington: 1941).
316 46 Stat. 26, 22 , as amended by 55 Stat. 761 (1941), 2 U.S.C. Sec. 2a .
317 U.S. Department of Commerce v. Montana, 112S.Ct.1415 (1992). The practice of the Secretary of Commerce in allocating overseas federal employees and military personnel to the States of last residence was attacked but upheld in Franklin v. Massachusetts, 112S.Ct.2767 (1992). The mandate of the clause of an enumeration of “their respective numbers” was complied with, it having been the practice since the first enumeration to allocate persons to the place of their “usual residence,” and to construe both this term and the word “inhabitant” broadly to include people temporarily absent.

Supplement: [P. 115, add to n.317:]

Another census controversy was resolved in Wisconsin v. City of New York, 517 U.S. 1 (1996) , in which the Court held that the decision of the Secretary of Commerce not to conduct a post–enumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discretion conferred by the Constitution and statute.

318 241 U.S. 565 (1916).
319 Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932).
320 See Seventeenth Amendment.
321 See Seventeenth Amendment.
322 See Seventeenth Amendment.

Supplement Footnotes

8 514 U.S. 779 (1995) . The majority was composed of Justice Stevens (writing the opinion of the Court) and Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting were Justice Thomas (writing the opinion) and Chief Justice Rehnquist and Justices O’Connor and Scalia. Id. at 845.
9 Article I, Sec. 2, cl. 2, provides that a person may qualify as a Representative if she is at least 25 years old, has been a United States citizen for at least seven years, and is an inhabitant, at the time of the election, of the State in which she is chosen. The qualifications established for Senators, Article I, Sec. 3, cl. 3, are an age of 30, nine years’ citizenship, and being an inhabitant of the State at the time of election.
10 See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).
11 514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65.
12 Id. at 802.
13 Id. at 798–805. And see id. at 838–45 (Justice Kennedy concurring).
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