ArtI.S3.C3.3 Congress's Ability to Change Qualifications Requirements for Senate

Article I, Section 3, 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.

The Supreme Court has held that Congress cannot legislate changes to Article I, Section 3, Clause 3 qualification requirements, which require a Senator to be at least thirty years of age, a United States citizen for nine years, and an inhabitant of the state from which he or she is elected.1

During the Constitutional Convention, the Framers had debated whether Congress should have discretion to adopt additional qualification requirements for congressional membership but ultimately decided that such discretion would be too vulnerable to manipulation and might cause otherwise qualified persons to be excluded from Congress.2 In particular, the Framers considered including a property requirement but the committee charged with recommending an appropriate amount could not agree and instead proposed that Congress decide.3 Rejecting granting Congress power to determine qualifications for membership, James Madison reasoned:

The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. . . . Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans [sic] of [a weaker] faction.4

Similarly, in the Federalist No. 60, Alexander Hamilton emphasized that stipulating qualification requirements in the Constitution would preclude wealthy citizens from using their influence to add property ownership criteria to be a Member of Congress at a later date.5

Until the Civil War, Congress appears to have generally conformed to the position adopted by Hamilton that the Constitution fixed the qualification requirements for membership in the Senate. But in July 1862, Congress passed a law requiring all persons appointed or elected to the United States Government to take an oath—known as the “Ironclad Test Oath” —that they had never been, nor ever would be, disloyal to the United States Government.6 Subsequently, the Senate denied seats to certain Senators-elect following the Civil War. For instance, in 1868, the Senate voted to deny a seat to Philip F. Thomas of Maryland for “having voluntarily given aid, countenance, and encouragement to persons engaged in armed hostility to the United States . . . .” 7

In 1969, the Supreme Court held in Powell v. McCormack that the House of Representatives could not impose additional qualification requirements.8 In 1995, the Supreme Court revisited Powell more broadly in U.S. Term Limits, Inc. v. Thornton where it considered whether States could impose additional qualifications for membership in the House of Representatives and Senate.9 In holding that the States could not, the Court reaffirmed its Powell holding as broadly applicable to Congress. The Court stated: “[W]e reaffirm that the qualifications for service in Congress are ‘fixed,’ at least in the sense that they may not be supplemented by Congress.” 10 Consequently, Congress cannot legislate changes to the Senate’s qualification requirements.

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995) ( “[T]he 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.” ). See Powell v. McCormack, 395 U.S. 486 (1969) (holding that Article I, Section 2, Clause 2 prevented the House of Representatives from adding qualification requirements for Article 1, Section 5 judgments). In Thornton, the Court “reaffirm[ed]” that “Powell's historical analysis and its articulation of the ‘basic principles of our democratic system’” established 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.” Thornton, 514 U.S. at 798. See also Nixon v. United States, 506 U.S. 224, 237 (1993) ( “[I]n light of the three requirements specified in the Constitution, the word ‘qualifications'—of which the House was to be the Judge—was of a precise limited nature.” ).

Unresolved is whether the reference to “Qualifications” in Article I, Section 5 includes other constitutional stipulations. In U.S. Term Limits, Inc. v. Thornton, the Court identified provisions that might be disqualifying: U.S. Const. art. I, § 3, cl. 7 (impeachment judgment against); id. art. I, § 6, cl. 2 (U.S. Government office holder); id. amdt. 14, (broke oath to support the Constitution through insurrection, rebellion, or assisting enemies); id. art. IV (Guarantee Clause); id. art. VI, cl. 3 (failed to swear to support the Constitution). Thornton, 514 U.S. at 787, n.2 (1995). The Court noted: 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.’ We similarly have no need to resolve that question today: Because these 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.” Id. (citations omitted).

2 The Records of the Federal Convention of 1787, at 248–51 (Max Farrand ed.,1911). back
Id. at 248–49. Discussing the committee report, John Rutledge of Georgia, a future Supreme Court Justice, observed that “the Committee had reported no qualifications because they could not agree on any among themselves, being embarrassed by the danger on [one] side of displeasing the people by making them [high], and on the other of rendering them nugatory by making them low.” Id. at 249.

Oliver Ellsworth of Connecticut, another future Supreme Court Justice noted that: “The different circumstances of different parts of the U.S. and the probable difference between the present and future circumstances of the whole, render it improper to have either uniform or fixed qualifications. Make them so high as to be useful in the S. Sates, and they will be inapplicable to the E. States. Suit them to the latter, and they will serve no purpose in the former. In like manner what may be accommodated to the existing State of things among us, may be very inconvenient in some future state of them.” Id.

Benjamin Franklin objected to a property requirement based on “his dislike of every thing that tended to debase the spirit of the common people.” Id. He stated: “If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property—Some of the greatest rogues he was ever acquainted with, were the richest rogues. We should remember the character which the Scripture requires in Rulers, that they should be men hating covetousness—This Constitution will be much read and attended to in Europe, and if it should betray a great partiality to the rich—will not only hurt us in esteem of the most liberal and enlightened men there, but discourage the common people from removing to this Country.” Id.

Id. at 250–51. back
The Federalist No. 60 (Alexander Hamilton) ( “[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 on the national government. . . . The qualifications of the persons who may choose or be chosen . . . are defined and fixed in the Constitution, and are unalterable by the legislature.” ). See also The Federalist No. 52 (James Madison) (discussing the House Qualifications Clause and stating “[u]nder 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 or religious faith.” ). back
Act of July 2, 1862, 12 Stat. 502. back
1 Hind’s Precedents of the House of Representatives § 458 (1907). See also id. at § 477 (referring to “John M. Niles, Philip F. Thomas, and Benjamin Stark in the Senate, and the Kentucky cases and those of Whittemore and George Q. Cannon in the House” and noting “that the Senate and the House have taken the ground that they had the right to exclude for insanity, for disloyalty, and for crime, including polygamy, and as we believe, there is no case in either the House or the Senate, where the facts were not disputed, in which either the Senate or House has denied that it had the right to exclude a man, even though he had the three constitutional qualifications” ). back
Powell v. McCormack, 395 U.S. 486 (1969). back
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). back
Id. at 798. back