Exclusivity of Constitutional Qualifications
Writing in The Federalist with reference to the election of Members of Congress, Hamilton firmly stated that “[t]he qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature.”315 Until the Civil War, the issue was not raised, the only actions taken by either House conforming to the idea that the qualifications for membership could not be enlarged by statute or practice.316 But in the passions aroused by the fratricidal conflict, Congress enacted a law requiring its members to take an oath that they had never been disloyal to the National Government.317 Several persons were refused seats by both Houses because of charges of disloyalty,318 and thereafter House practice, and Senate practice as well, was erratic.319 But in Powell v. McCormack,320 it was conclusively established that the qualifications listed in clause 2 are exclusive321 and that Congress could not add to them by excluding Members-elect not meeting the additional qualifications.322
Powell was excluded from the 90th Congress on grounds that he had asserted an unwarranted privilege and immunity from the process of a state court, that he had wrongfully diverted House funds for his own uses, and that he had made false reports on the expenditures of foreign currency.323 The Court determination that he had been wrongfully excluded proceeded in the main from the Court’s analysis of historical developments, the Convention debates, and textual considerations. This process led the Court to conclude that Congress’s power under Article I, § 5 to judge the qualifications of its Members was limited to ascertaining the presence or absence of the standing qualifications prescribed in Article I, § 2, cl. 2, and perhaps in other express provisions of the Constitution.324 The conclusion followed because the English parliamentary practice and the colonial legislative practice at the time of the drafting of the Constitution, after some earlier deviations, had settled into a policy that exclusion was a power exercisable only when the Member-elect failed to meet a standing qualification,325 because in the Constitutional Convention the Framers had defeated provisions allowing Congress by statute either to create property qualifications or to create additional qualifications without limitation,326 and because both Hamilton and Madison in the Federalist Papers and Hamilton in the New York ratifying convention had strongly urged that the Constitution prescribed exclusive qualifications for Members of Congress.327
Further, the Court observed that the early practice of Congress, with many of the Framers serving, was consistently limited to the view that exclusion could be exercised only with regard to a Member-elect failing to meet a qualification expressly prescribed in the Constitution. Not until the Civil War did contrary precedents appear, and later practice was mixed.328 Finally, even were the intent of the Framers less clear, said the Court, it would still be compelled to interpret the power to exclude narrowly. “A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ 2 Elliot’s Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning, borne out in the Wilkes case and some of Congress’s own post-Civil War exclusion cases, against ‘vesting an improper and dangerous power in the Legislature.’ 2 Farrand 249.”329 Thus, the Court appears to say, to allow the House to exclude Powell on this basis of qualifications of its own choosing would impinge on the interests of his constituents in effective participation in the electoral process, an interest which could be protected by a narrow interpretation of Congressional power.330
The result in Powell had been foreshadowed when the Court held that the exclusion of a Member-elect by a state legislature because of objections he had uttered to certain national policies constituted a violation of the First Amendment and was void.331 In the course of that decision, the Court denied state legislators the power to look behind the willingness of any legislator to take the oath to support the Constitution of the United States, prescribed by Article VI, cl. 3, to test his sincerity in taking it.332 The unanimous Court noted the views of Madison and Hamilton on the exclusivity of the qualifications set out in the Constitution and alluded to Madison’s view that the unfettered discretion of the legislative branch to exclude members could be abused in behalf of political, religious or other orthodoxies.333 The First Amendment holding and the holding with regard to testing the sincerity with which the oath of office is taken is no doubt as applicable to the United States Congress as to state legislatures.
However much Congress may have devi- ated 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 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.334 Similarly, both the House and Senate have seated other Members-elect who did not meet additional state qualifications or who suffered particular state disqualifications on eligibility, such as running for Congress while holding particular state offices.
The Supreme Court reached the same conclusion as to state power, albeit by a surprisingly close 5–4 vote, in U.S. Term Limits, Inc. v. Thornton.335 Arkansas, along with twenty-two other states, all but two by citizen initiatives, had limited the number of terms that Members of Congress may serve. In striking down the Arkansas term limits, the Court determined that the Constitution’s qualifications clauses336 establish exclusive qualifications for Members that may not be added to either by Congress or the states.337 Six years later, the Court relied on Thornton to invalidate a Missouri law requiring that labels be placed on ballots alongside the names of congressional candidates who had “disregarded voters’ instruction on term limits” or declined to pledge support for term limits.338
Both majority and dissenting opinions in Thornton were 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 nation’s early years,339 and these differences over text, creation, and practice derived from disagreement about 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 only those powers expressly forbidden them and those limited powers that they had delegated to the Federal Government expressly or by necessary implication. They retained all other powers and still retain them. Thus, “[w]here 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.”340 The Constitution’s silence as to authority to impose additional qualifications meant that this power resides in the states.
The majority’s views were radically different. After the adoption of the Constitution, the states had two kinds of powers: reserved powers that they had before the founding and that were not surrendered to the Federal Government, and those powers delegated to them by the Constitution. It followed that 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.’ ”341 The states could not before the founding have possessed powers to legislate respecting the Federal Government, and, because the Constitution did not delegate to the states the power to prescribe qualifications for Members of Congress, the states did not have any such power.342
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.
- No. 60 (J. Cooke ed. 1961), 409. See also 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 623–627 (1833) (relating to the power of the States to add qualifications).
- All the instances appear to be, however, cases in which the contest arose out of a claimed additional state qualification.
- Act of July 2, 1862, 12 Stat. 502. Note also the disqualification written into § 3 of the Fourteenth Amendment.
- 1 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 451, 449, 457 (1907).
- In 1870, the House excluded a Member-elect who had been re-elected after resigning earlier in the same Congress when expulsion proceedings were instituted against him for selling appointments to the Military Academy. Id. at § 464. A Member-elect was excluded in 1899 because of his practice of polygamy, id. at 474–80, but the Senate refused, after adopting a rule requiring a two-thirds vote, to exclude a Member-elect on those grounds. Id. at §§ 481–483. The House twice excluded a socialist Member-elect in the wake of World War I on allegations of disloyalty. 6 CAN-NON ’ S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 56–58 (1935). See also S. REP. NO. 1010, 77th Congress, 2d sess. (1942), and R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. DOC. NO. 71, 87th Congress, 2d sess. (1962), 140 (dealing with the effort to exclude Senator Langer of North Dakota).
- 395 U.S. 486 (1969). The Court divided eight to one, Justice Stewart dissenting on the ground that the case was moot. Powell’s continuing validity was affirmed in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the Court in its holding that the qualifications set out in the Constitution are exclusive and may not be added to by either Congress or the states, id. at 787–98, and by the dissenters, who would hold that Congress, for different reasons could not add to qualifications, although the states could. Id. at 875–76.
- The Court declined to reach the question whether the Constitution in fact does impose other qualifications. 395 U.S. at 520 n.41 (possibly Article I, § 3, cl. 7, disqualifying persons impeached, Article I, § 6, cl. 2, incompatible offices, and § 3 of the Fourteenth Amendment). It is also possible that the oath provision of Article VI, cl. 3, could be considered a qualification. See Bond v. Floyd, 385 U.S. 116, 129–131 (1966).
- 395 U.S. at 550.
- H. REP. NO. 27, 90th Congress, 1st sess. (1967); 395 U.S. at 489–493.
- Powell v. McCormack, 395 U.S. 486, 518–47 (1969).
- 395 U.S. at 522–31.
- 395 U.S. at 532–39.
- 395 U.S. at 539–41.
- 395 U.S. at 541–47.
- 395 U.S. at 547–48.
- The protection of the voters’ interest in being represented by the person of their choice is thus analogized to their constitutionally secured right to cast a ballot and have it counted in general elections, Ex parte Yarbrough, 110 U.S. 651 (1884), and in primary elections, United States v. Classic, 313 U.S. 299 (1941), to cast a ballot undiluted in strength because of unequally populated districts, Wesberry v. Sanders, 376 U.S. 1 (1964), and to cast a vote for candidates of their choice unfettered by onerous restrictions on candidate qualification for the ballot. Williams v. Rhodes, 393 U.S. 23 (1968).
- Bond v. Floyd, 385 U.S. 116 (1966).
- 385 U.S. at 129–31, 132, 135.
- 385 U.S. at 135 n.13.
- 1 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 414 (1907).
- 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.
- Article I, § 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 7 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, § 3, cl. 3, are an age of 30 years, nine years’ citizenship, and being an inhabitant of the state at the time of election.
- The four-Justice dissent argued that while Congress has no power to increase qualifications, the States do. 514 U.S. at 845.
- Cook v. Gralike, 531 U.S. 510 (2001).
- See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995).
- 514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65.
- 514 U.S. at 802.
- 514 U.S. at 798–805. See also id. at 838–45 (Justice Kennedy concurring). The Court applied similar reasoning in Cook v. Gralike, 531 U.S. 510, 522–23 (2001), invalidating ballot labels identifying congressional candidates who had not pledged to support term limits. Because congressional offices arise from the Constitution, the Court explained, no authority to regulate these offices could have preceded the Constitution and been reserved to the states, and the ballot labels were not valid exercise of the power granted by Article I, § 4 to regulate the “manner” of holding elections. See discussion under Legislation Protecting Electoral Process, infra.