A Member of the House of Representatives Must

Article I, Section ii, Clause 2:

No Person shall be a Representative who shall not take attained to the Age of twenty five Years, and been 7 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.

A question much disputed only now seemingly settled is whether a status of eligibility must exist at the time of the election or whether it is sufficient that eligibility exist when the Member-elect presents himself to accept the oath of role. Although the linguistic communication of the clause expressly makes residency in the state a status at the fourth dimension of ballot, information technology now appears established in congressional practice that the age and citizenship qualifications need only be met when the Member-elect is to be sworn.1 Thus, persons elected to either the Firm of Representatives or the Senate before attaining the required age or term of citizenship have been admitted as presently as they became qualified.ii

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 called . . . are divers and fixed in the constitution; and are unalterable by the legislature." 3 Until the Civil War, the issue was not raised, the only actions taken past either House conforming to the thought that the qualifications for membership could not be enlarged by statute or practice.4 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.5 Several persons were refused seats past both Houses because of charges of disloyalty,half dozen and thereafter House practice, and Senate practice equally well, was erratic.vii Just in Powell v. McCormack ,8 it was conclusively established that the qualifications listed in clause 2 are exclusive9 and that Congress could not add to them by excluding Members-elect not meeting the additional qualifications.10

Powell was excluded from the 90th Congress on grounds that he had asserted an unwarranted privilege and amnesty 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 strange currency.eleven The Court determination that he had been wrongfully excluded proceeded in the main from the Court'south 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 guess the qualifications of its Members was express to ascertaining the presence or absence of the standing qualifications prescribed in Article I, § 2, cl. ii, and perhaps in other limited provisions of the Constitution.12 The conclusion followed because the English parliamentary practice and the colonial legislative exercise 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 see a standing qualification,13 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,xiv 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 sectional qualifications for Members of Congress.xv

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 simply with regard to a Member-elect failing to meet a qualification expressly prescribed in the Constitution. Non until the Civil State of war did opposite precedents appear, and later on practice was mixed.sixteen 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'south words, 'that the people should choose whom they please to govern them.' ii Elliot'due south 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 credible agreement with this basic philosophy, the Convention adopted his proposition limiting the ability to miscarry. To permit essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison'south warning, borne out in the Wilkes case and some of Congress's ain mail service-Civil War exclusion cases, against 'vesting an improper and unsafe ability in the Legislature.' " 17 Thus, the Court appears to say, to permit 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 past a narrow interpretation of Congressional power.eighteen

The result in Powell had been foreshadowed when the Courtroom held that the exclusion of a Member-elect past a state legislature because of objections he had uttered to certain national policies constituted a violation of the Outset Amendment and was void.19 In the course of that decision, the Court denied state legislators the ability 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. three, to test his sincerity in taking it.xx The unanimous Court noted the views of Madison and Hamilton on the exclusivity of the qualifications ready out in the Constitution and alluded to Madison's view that the unfettered discretion of the legislative co-operative to exclude members could be abused in behalf of political, religious or other orthodoxies.21 The First Subpoena property 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.

Even so 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, information technology has been uniform in rejecting efforts by u.s. to enlarge the qualifications. Thus, the House in 1807 seated a Member-elect who was challenged as non beingness in compliance with a country law imposing a twelve-calendar month residency requirement in the district, rather than the federal requirement of being an inhabitant of the state at the time of ballot; the country requirement, the House resolved, was unconstitutional.22 Similarly, both the Firm and Senate have seated other Members-elect who did not see additional state qualifications or who suffered particular state disqualifications on eligibility, such as running for Congress while holding particular country offices.

The Supreme Court reached the same determination as to land power, admitting by a surprisingly close 5-iv vote, in U.S. Term Limits, Inc. five. Thornton .23 Arkansas, along with twenty-ii 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 clauses24 establish sectional qualifications for Members that may non be added to either by Congress or the states.25 6 years later, the Court relied on Thornton to invalidate a Missouri constabulary 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.26

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'due south early on years,27 and these differences over text, creation, and exercise derived from disagreement most 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 exist fatigued from this was that the peoples in u.s. agreed to give up only those powers expressly forbidden them and those express powers that they had delegated to the Federal Authorities expressly or past necessary implication. They retained all other powers and still retain them. Thus, "[w]here the Constitution is silent about the do of a particular ability—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and united states of america enjoy it." 28 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. Later on 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, 'usa tin exercise no powers whatsoever, which exclusively spring out of the being of the national government, which the constitution does non consul to them. . . . No state can say, that it has reserved, what it never possessed.'" 29 The states could not earlier the founding have possessed powers to legislate respecting the Federal Government, and, because the Constitution did not delegate to the states the ability to prescribe qualifications for Members of Congress, united states of america did non accept any such power.30

Evidently, the opinions in this case reflect more than a conclusion on this particular dispute. They rather stand for alien philosophies inside the Court respecting the scope of national power in relation to the states, an issue at the core of many controversies today.

Footnotes

1

See South. Rep. No. 904, 74th Congress, 1st sess. (1935), reprinted in 79 Cong. Rec. 9651–9653 (1935).

two

ane Hinds' Precedents of the House of Representatives § 418 (1907); 79 Cong. Rec. 9841–42 (1935); cf. 1 Hinds, supra note two, at § 429.

three

No. 60 (J. Cooke ed. 1961), 409. Run across likewise 2 J. Story, Commentaries on the Constitution of the U.s.a. §§ 623–27 (1833) (relating to the power of the States to add qualifications).

4

All the instances appear to be, however, cases in which the contest arose out of a claimed boosted state qualification.

5

Act of July 2, 1862, 12 Stat. 502. Notation too the disqualification written into § iii of the Fourteenth Subpoena.

6

1 Hinds' Precedents of the Business firm of Representatives §§ 451, 449, 457 (1907).

7

In 1870, the Business firm excluded a Member-elect who had been re-elected after resigning earlier in the aforementioned 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 practise of polygamy, id. at 474–80, merely the Senate refused, subsequently adopting a dominion 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 Cannon's Precedents of the Business firm of Representatives §§ 56–58 (1935). Meet likewise S. Rep. No. 1010, 77th Congress, 2d sess. (1942), and R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. Doctor. No. 71, 87th Congress, 2d sess. (1962), 140 (dealing with the effort to exclude Senator Langer of Northward Dakota).

8

395 U.South. 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. five. Thornton, 514 U.Southward. 779 (1995), both past the Court in its belongings 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 concur that Congress, for dissimilar reasons could not add to qualifications, although united states of america could. Id. at 875–76.

9

The Court declined to reach the question whether the Constitution in fact does impose other qualifications. 395 U.S. at 520 n.41 (possibly Commodity I, § 3, cl. 7, disqualifying persons impeached, Article I, § 6, cl. 2, incompatible offices, and § 3 of the Fourteenth Amendment). It is as well possible that the oath provision of Article VI, cl. 3, could exist considered a qualification. Come across Bond v. Floyd, 385 U.S. 116, 129–131 (1966).

x

395 U.South. at 550 .

eleven

H. Rep. No. 27, 90th Congress, 1st sess. (1967); 395 U.Due south. at 489–493 .

12

Powell five. McCormack, 395 U.S. 486, 518–47 (1969).

13

395 U.S. at 522–31 .

14

395 U.S. at 532–39 .

15

395 U.Southward. at 539–41 .

16

395 U.Southward. at 541–47 .

17

ii Records of the Federal Convention of 1787, at 249 (Max Farrand ed., 1937); 395 U.South. at 547–48 .

18

The protection of the voters' involvement in existence represented by the person of their selection is thus analogized to their constitutionally secured right to cast a ballot and take information technology counted in general elections, Ex parte Yarbrough, 110 U.S. 651 (1884), and in master elections, United states of america v. Classic, 313 U.S. 299 (1941), to cast a election undiluted in force because of unequally populated districts, Wesberry five. Sanders, 376 U.S. 1 (1964), and to cast a vote for candidates of their choice unfettered past onerous restrictions on candidate qualification for the election. Williams v. Rhodes, 393 U.Due south. 23 (1968).

19

Bond 5. Floyd, 385 U.S. 116 (1966).

xx

385 U.S. at 129–31, 132, 135 .

21

385 U.S. at 135 n.thirteen .

22

1 Hinds' Precedents of the House of Representatives § 414 (1907).

23

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 Main Justice Rehnquist and Justices O'Connor and Scalia. Id. at 845.

24

Commodity I, § two, cl. 2, provides that a person may authorize equally a Representative if she is at least 25 years old, has been a United States citizen for at to the lowest degree vii years, and is an inhabitant, at the time of the election, of the land in which she is chosen. The qualifications established for Senators, Article I, § 3, cl. 3, are an age of xxx years, nine years' citizenship, and being an inhabitant of the land at the time of election.

25

The iv-Justice dissent argued that while Congress has no power to increment qualifications, united states of america exercise. 514 U.S. at 845 .

26

Cook v. Gralike, 531 U.S. 510 (2001).

27

Come across Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. 5. Thornton, 109 Harv. Fifty. Rev. 78 (1995).

28

514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65.

29

514 U.S. at 802 .

30

514 U.Due south. at 798–805 . See also id. at 838–45 (Justice Kennedy concurring). The Court applied like reasoning in Melt v. Gralike, 531 U.Southward. 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 say-so to regulate these offices could have preceded the Constitution and been reserved to u.s., and the ballot labels were non valid exercise of the power granted by Article I, § 4 to regulate the "fashion" of holding elections. See word nether Legislation Protecting Electoral Procedure, infra.

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Source: https://www.law.cornell.edu/constitution-conan/article-1/section-2/clause-2/qualifications-of-members-of-the-house-of-representatives

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