State Additions.

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.


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. [Back to text]
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. [Back to text]
The four-Justice dissent argued that while Congress has no power to increase qualifications, the States do. 514 U.S. at 845. [Back to text]
Cook v. Gralike, 531 U.S. 510 (2001). [Back to text]
See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995). [Back to text]
514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65. [Back to text]
514 U.S. at 802. [Back to text]
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. [Back to text]