The Qualifications For Representatives Clause

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

—Derek T. Muller

Introduction

The Constitution enumerates three qualifications for members of the House of Representatives: age, United States citizenship, and state inhabitancy. The Framers rejected more extensive qualifications for members of the House, and few disputes have arisen over these three. After the Framing, there were extensive debates about whether Congress or the states could add qualifications for members of the House, but in Powell v. McCormack (1969) and U.S. Term Limits, Inc. v. Thornton (1995), the Supreme Court concluded that neither may do so.

History Before 1787

Rules about who was eligible to serve in elected office were common before the Constitution was adopted. Justice Joseph Story noted that, before ratification, “a great diversity of qualifications existed” for state representatives.¹ ​Delaware required only that members of its assembly be freeholders.² Georgia required representatives to be residents of the county from which they were elected for at least three months and residents of the state for twelve months; be members of the “Protestant religion”; be at least twenty-one years of age; and own at least 250 acres of land or property worth 250 pounds.³ The Articles of Confederation imposed term limits on members of the national legislature: “[N]o person shall be capable of being a delegate for more than three years in any term of six years.”⁴

The Constitutional Convention

Early in the Constitutional Convention, delegates added an age requirement for members of the House.⁵ The Framers later considered but ultimately rejected property ownership and indebtedness.⁶ Instead, they settled on three qualifications. Representatives must be at least twenty-five years of age, which presumes a minimum level of experience and maturity;⁷ must have been U.S. citizens for seven years, which would prevent undue foreign influence;⁸ and must be inhabitants of the states in which they are chosen.

The third standard was less onerous than a “residency” requirement would have been. As James Madison of Virginia explained, a residency requirement might “exclude persons absent occasionally for a considerable time on public or private business.”⁹ Inhabitancy would be ascertained for a candidate “when elected” and not beforehand. The Framers rejected proposals that would require one, three, or six-year inhabitance.¹⁰

John Dickinson of Delaware acknowledged that enumerating some qualifications meant that others could not be added. In fact, Dickinson opposed listing any qualifications precisely because it “would by implication tie up the hands of the Legislature from supplying the omissions.”¹¹ His statement suggests that “the Framers were well aware of the expressio unius argument that would result from their wording of the Qualifications Clauses”—enumerating some qualifications meant that there were no other qualifications except those listed.¹²

The Constitution’s structure supports this view. Article I, Section 5 provides that “[e]ach house shall be the Judge of the Elections, Returns and Qualifications of its own members.” Each house of Congress may “punish its Members for disorderly behavior, and, with the Concurrence of two thirds, expel a Member.” And the Elections Clause of Article I, Section 4 provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. . . .”¹³ The structural separation of these provisions suggests distinct roles in administering elections. Congress’s power over the “Times, Places, and Manner of holding Elections” is separate from the power over qualifications. The Constitution does not expressly grant states and Congress the power to regulate qualifications, which are fixed and enumerated elsewhere.¹⁴

Another structural argument further suggests that these qualifications are exclusive. As Article I, Section 5 states, Congress has the power to judge the qualifications enumerated in the Constitution, which takes place by a simple majority vote, and to expel seated members with a two-thirds vote. It would be inconsistent to allow a house to impose additional qualifications by a simple majority vote when the Constitution requires a supermajority vote to expel a member on grounds not enumerated in the Constitution. This structure suggests that a house can judge only the qualifications that are set forth in Article I, Section 2.¹⁵

The Ratification Debates

During the state ratification process, the debate over qualifications continued. These records arguably furnish more evidence for the inability of states or Congress to add qualifications beyond those mentioned in Article I, Section 2. Both the Constitution’s promoters and its critics noted the minimal qualifications set out for Representatives. For instance, in Federalist No. 52, Madison praised the fact that there were few qualifications: “[T]he 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 of religious faith.”

In Federalist No. 60, Alexander Hamilton emphasized that the legislature had no power to add to these qualifications. He explained that the power under the Elections Clause “would be expressly restricted to the regulation of the times, the places, and the manner of elections,” adding that “[t]he qualifications of the persons who may choose or be chosen . . . are defined and fixed in the Constitution, and are unalterable by the legislature.”

Others condemned these few qualifications. The Federal Farmer, an Anti-Federalist, would have imposed far more qualifications for serving in Congress. He charged that the Constitution allows “pagans,” “convicts,” “beggar[s],” “absentee[s],” and “many men . . . who cannot be electors” to serve as “elected representatives.”¹⁶ In Massachusetts, some delegates complained that there were no property qualifications for members of Congress. One delegate remarked that the system was “democratic.” He asked,“[W]hy should we bridle the people in their elections?”¹⁷

Early Practice

Shortly after the Constitution was ratified, some states added qualifications for federal candidates.¹⁸ Virginia, for example, required that members of Congress be “freeholder[s],”¹⁹ one of two provisions that, according to St. George Tucker, “require[d] qualifications which the constitution does not” and therefore might “possibly be found to be nugatory” (of no force) in practice.²⁰ Five states in this early period required members of Congress to reside in the districts they sought to represent.²¹ While the Constitution required only “inhabitancy” in the state, these states required establishing residency in a particular part of the state, and residency, as noted, was potentially a more onerous requirement than inhabitancy.

By contrast, Thomas Jefferson contended that the Constitution chose “the middle way” on the qualifications of candidates. In an 1814 letter, Jefferson wrote that the Constitution mandates “some disqualifications” (age, inhabitancy, and citizenship) while allowing states to impose other, non-uniform disqualifications that are otherwise constitutional.²²

In 1833, Justice Joseph Story wrote that the Constitution’s specifically enumerated qualifications “exclude[d] all others.” He explained that states do not have powers that “spring out of the existence of the national government, which the constitution does not delegate to them.”²³ Story rejected Jefferson’s contrary view.²⁴ The Constitution established the federal government and federal elections. Therefore, Story argued, the power to add qualifications could not have been “reserved” to the states when the Constitution was adopted, because state power over federal elections did not exist before 1788.²⁵

Judicial Precedent

There was no material judicial interpretation of the clause until the late twentieth century. The question of whether the House of Representatives could add to what constituted “qualifications” reached the U.S. Supreme Court in Powell v. McCormack (1969). The House refused to seat Representative-elect Adam Clayton Powell, Jr., because of Powell’s serious misconduct even though Powell met the qualifications enumerated in Article I, Section 2.²⁶ The Court held that “the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.”²⁷ In other words, the House could not refuse to seat Powell by adding a qualification to those enumerated in the Constitution.

However, Powell left open the question whether the states could add to the qualifications stated in the Constitution. This issue came to a head in the 1990s during a popular movement for congressional term limits. United States Term Limits, Inc. v. Thornton (1995) held that the Constitution’s qualifications were in fact exclusive and that the states could therefore neither add to nor alter them.²⁸

Justice John Paul Stevens’s majority opinion reaffirmed the historical argument in Powell that Congress did not have the power to alter qualifications and extended that rationale to the states.²⁹ The Court relied on the Founding-era debates, which focused on the fact that the enumeration of some qualifications suggested that they were an exclusive list. The Court also considered the structure of the Constitution’s other election provisions to find that states lacked the power to add qualifications. The majority relied heavily on the historical analysis from Powell, along with interpretations of Federalist Nos. 52 and 60 and Story’s Commentaries, among other sources.

Justice Clarence Thomas, writing on behalf of four dissenting Justices, proposed a different historical argument. He contended that the federal government was created by the people not as a whole, but of the several states.³⁰ Thomas further argued that whatever powers were not given to the federal government were thus retained by the states and the people—a view confirmed by the Tenth Amendment.³¹ Consequently, he reasoned, the states retained the power to add qualifications for Representatives.³² If the Constitution did not remove the power to add qualifications from the states or the people, then it could not bar any action by the people of the states to add qualifications. Thomas carefully distinguished Powell, because the power of Congress is circumscribed in ways that the power of states is not.

Since Term Limits, there have been other occasional successful challenges to state laws on the basis that they improperly add to the qualifications for seeking federal office. For instance, California law required candidates for Congress to be registered voters in the state and residents of the state when filing paperwork to run for office. The Ninth Circuit held that this law unconstitutionally added to the qualifications that candidates for federal office are required to meet.³³ Furthermore, the Constitution specifies that the inhabitancy qualification attaches “when elected.” A member of Congress need not be an “inhabitant” of a state before Election Day.

Open Questions

• Early records suggest that some states appeared to add qualifications for congressional candidates. Were those qualifications ever actually enforced or disputed?
• Does the Term Limits rule extend to qualifications for the office of President?³⁴
• States provide rules over who may or may not appear on the ballot. When do these rules function to add qualifications to candidates? When are they simply rules regulating the “manner of holding elections”?³⁵

1. 2 Story’s Commentaries § 614. ↩︎
2. Del. Const. of 1776, art. III. ↩︎
3. Ga. Const. of 1777, art. VI. ↩︎
4. Articles of Confederation, art. V, § 2. ↩︎
5. 1 Farrand’s 375. ↩︎
6. 2 Farrand’s 116–17, 121–26. ↩︎
7. 1 Farrand’s 375. ↩︎
8. 2 Farrand’s 268–72. ↩︎
9. Id. at 216–17. ↩︎
10. Id. at 218–19, 590. ↩︎
11. Id. at 123. ↩︎
12. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995). ↩︎
13. Art. I, § 4, cl. 1. ↩︎
14. Derek T. Muller, Weaponizing the Ballot, 48 Fla. St. U.L. Rev. 61, 76 (2020); Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Const. L. 1, 22 (2010). ↩︎
15. Muller, supra at 76; Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 258–59 (2017). ↩︎
16. Storing 2.8.150. ↩︎
17. 6 DHRC 1240–41. ↩︎
18. Polly J. Price, Term Limits on Original Intent? An Essay on Legal Debate and Historical Understanding, 82 Va. L. Rev. 493, 509–12 (1996). ↩︎
19. Acts Passed at a General Assembly of the Commonwealth of Virginia, ch. 2, § 2 (Richmond, 1788). ↩︎
20. St. George Tucker, View of the Constitution of the United States, in View of the Constitution of the United States with Selected Writings 116 (Clyde N. Wilson ed., 1999), https://perma.cc/LJM8-TXAC. ↩︎
21. U.S. Term Limits, 514 U.S. at 826–27 & n.41. ↩︎
22. Letter from Thomas Jefferson to Joseph C. Cabell (Jan. 31, 1814), https://perma.cc/DT5U-Q2EN. ↩︎
23. 1 Story’s Commentaries §§ 624, 626. ↩︎
24. 2 Story’s Commentaries §§ 614–15, 625. ↩︎
25. Id. at § 625. ↩︎
26. Powell v. McCormack, 395 U.S. 486, 490 (1969). ↩︎
27. Id. at 522 (footnote omitted; emphasis in original). ↩︎
28. 514 U.S. 779, 783 (1995). ↩︎
29. Id. at 789–93. ↩︎
30. Id. at 846 (Thomas, J., dissenting). ↩︎
31. Id. at 847. ↩︎
32. Id. at 926. ↩︎
33. Schaefer v. Townsend, 251 F.3d 1031 (9th Cir. 2000) (O’Scannlain, J.). ↩︎
34. U.S. Term Limits, 514 U.S. at 861 (Thomas, J., dissenting); Chiafalo v. Washington, 591 U.S. 578, 589 n.5. ↩︎
35. Muller, supra at 2. ↩︎