The Qualifications for Senators Clause

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.

—Martin Gold

Introduction

The federal Constitution imposes three specific qualifications for Senators: A Senator must (1) be at least thirty years old, (2) have been a citizen for nine years, and (3) be an “Inhabitant” of the state in which he was elected. Despite these requirements, the Senate has administered the oath to several Senators who were under the age of thirty, and other underage Senators have delayed taking the oath until they turned thirty. Essay No. 8 discusses whether the House of Representatives and states can impose additional qualifications for serving in Congress.

The Constitutional Convention

The issue of a minimum age for Senators came up early during the Constitutional Convention. Resolution 5 of the Virginia Plan provided that “members of the second Branch of the National Legislature ought to be selected by those of the first, out of a proper number of persons nominated by the individual legislatures.” The Virginia Plan was presented to the Committee of the Whole on May 29, 1787, but although Resolution 5 conceived that there should be a minimum age, it left the number blank for later consideration.¹

On June 12, the Convention rejected a proposal to eliminate the minimum age requirement, and without further controversy, delegates set the age at thirty years by a vote of seven states to four. That age was five years older than the twenty-five-year age requirement for the House of Representatives.² The higher minimum age was consistent with James Madison’s concept that “[t]he use of the Senate is to consist in its proceeding, with more coolness, with more system, and with more wisdom than the popular branch.”³

Later during the Convention, the delegates turned to the citizenship and residence requirements. In early August, the Committee of Detail presented its report, which added two additional qualifications for serving in the Senate: A Senator would have to have been a U.S. citizen for at least four years and would have to be a resident of the state in which he was elected.⁴ The age requirement was not particularly controversial, but the citizenship and residency requirements generated spirited debate on August 9.

Gouverneur Morris of Pennsylvania proposed to replace the four-year citizenship requirement with fourteen years.⁵ He warned against the danger of admitting strangers into public councils. Charles Pinckney of South Carolina seconded the motion. He spoke of the Senate’s anticipated role in approving treaties and cautioned about the problem of subjecting them to persons with foreign attachments.⁶

James Madison of Virginia opposed placing citizenship requirements in the Constitution, believing that it would give that document “a tincture of illiberality” and discourage meritorious foreigners from immigrating to the United States. He further contended that because Congress would be responsible for setting immigration and naturalization rules, citizenship requirements would be addressed more appropriately in that forum.⁷ Benjamin Franklin of Pennsylvania was open to a citizenship threshold covering a “reasonable time,” but argued that a fourteen-year requirement was excessive. He observed that “during the course of the Revolution, we found that many strangers served us faithfully and that many natives took part against their Country.”⁸ James Wilson of Pennsylvania spoke of the discouragement and mortification that foreign-born persons would feel from such “degrading discrimination.”⁹

However, Morris remained skeptical of trusting foreigners. He was open to admitting them to many privileges in the United States but dubious about their serving in public office. “The men who would shake off their attachments to their own country can never love another,” he claimed.¹⁰ Morris’s motion for a fourteen-year citizenship requirement failed by a vote of four states to seven. His further motion to impose a thirteen-year citizenship requirement failed by the same vote, as did a ten-year restriction proposed by Charles Cotesworth Pinckney of South Carolina.¹¹

John Rutledge of South Carolina and Hugh Williamson of North Carolina noted that delegates had already set the citizenship requirement for the House of Representatives at seven years and thought that the Senate’s should be longer.¹² By a vote of six states to four, with one state divided, delegates agreed to the requirement of nine years. Then, without dissension, they agreed to substitute the word “inhabitant” for “resident.”¹³ According to Professor Eugene D. Mazo, this change would “defeat efforts to adopt state durational residency requirements.”¹⁴

Finally, the Committee of Detail’s report included a recommendation that would have given Congress the discretion to add a property qualification for membership: “The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.” Madison opposed this recommendation. On October 10, he argued that “[T]he qualifications of electors and elected were fundamental articles in a Republican Government . . . and ought to be fixed by the Constitution.” Madison observed that “[i]f the Legislature could regulate those of either, it can by degrees subvert the Constitution.” He explained that “limiting the number of people capable of being elected, as the number authorized to elect” may convert a Republic “an aristocracy or oligarchy.”¹⁵

Notwithstanding this admonition, Morris moved to strike “with regard to property,” which would have given Congress complete discretion to set additional qualifications, and not just qualifications regarding property. However, Morris’s motion was opposed by a vote of seven states to four. Accepting Madison’s view, the Convention then rejected the Committee of Detail’s recommendation outright by a vote of three states to seven.¹⁶

Commentary

The Federalist Papers defended the Senate qualifications. In Federalist No. 64, John Jay wrote that “[b]y excluding men under thirty from the” Senate, the Constitution “confines the elections to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”¹⁷ And in Federalist No. 62, Madison explained that “the term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.”¹⁸

Later, Justice Joseph Story would praise the qualifications for Senators. “[I]f counsels are to be wise,” he wrote, “the ardor and impetuosity and confidence of youth must be chastened by the sober lessons of experience; and if knowledge and solid judgment and tried integrity are to be deemed indispensable qualifications for senatorial service, it would be rashness to affirm that thirty years is too long a period for a due maturity and probation.”¹⁹

Congressional Practice

The express provisions of the Qualifications for Senators Clause have not been the subject of judicial review. However, the Senate has taken actions bearing on the implementation of this clause. For example, the Senate has administered oaths to people who had not yet reached the age of thirty. In 1806, Henry Clay of Kentucky was elected to the Senate by his state legislature.²⁰ He took the oath and began serving while he was still twenty-nine years old. In 1816, the Senate administered the oath to Armistead Mason of Virginia, who was elected by the state legislature to fill a vacancy.²¹ The unexpired term would stretch about a year. At the time of his election, Mason was twenty-eight years old, and he was still several months shy of his thirtieth birthday when his term ended in March 1817. In 1818, the Senate administered the oath to John Henry Eaton of Tennessee,²² who was only twenty-eight years old. According to the Senate Historical Office, “Apparently no one asked John Eaton how old he was.”

The Senate has also delayed administering the oath to members who had not yet reached the age of thirty. In 1934, Rush Holt of West Virginia defeated incumbent Senator Henry Hatfield. Holt was elected to the Senate at the age of twenty-nine and pledged to wait until after his thirtieth birthday before taking the oath. Hatfield filed a petition with the Senate, contending that Holt did not meet the minimum age requirement. The Senate dismissed Hatfield’s petition on the grounds that “the age requirement applies at the time of oath-taking rather than the time of election, or the time the term [to which the candidate is elected] begins.”²³ For example, twenty-nine-year-old Russell B. Long of Louisiana was elected to the Senate on November 2, 1948, a day before his thirtieth birthday, and was sworn in on December 31, 1948, after he had turned thirty. Similarly, Joseph R. Biden of Delaware was twenty-nine on November 7, 1972, when he won election to the United States Senate. He turned thirty on November 20, 1972, and took the oath of office on January 3, 1973.

Open Questions

• Senators must be “nine Years a Citizen of the United States.” When the first Senate assembled in 1789, who had been a “Citizen of the United States” for nine years? Did that period stretch back before the ratification of the Articles of Confederation or to the signing of the Declaration of Independence?²⁴
• Does the Constitution permit the Senate to issue an oath to a member-elect who has not yet reached the age of thirty if no one objects? Does the Constitution impose a duty on Senators to inquire about a member-elect’s age?
• Does the Constitution permit a member-elect who is under the age of thirty to delay taking the oath until he turns thirty?
• Does the residency requirement apply to a Senator who is “appointed” by a governor empowered by a state legislature to make such appointments?²⁵

1. 1 Farrand’s 20. ↩︎
2. 2 Farrand’s 217–18. ↩︎
3. Id. at 151. ↩︎
4. 2 Farrand’s 179. ↩︎
5. Id. at 235. ↩︎
6. Id. ↩︎
7. Id. at 235–36. ↩︎
8. Id. ↩︎
9. Id. at 237. ↩︎
10. Id. at 237–38. ↩︎
11. Id. at 238–39. ↩︎
12. Id. at 239. ↩︎
13. Id. ↩︎
14. Eugene D. Mazo, Residency and Democracy: Durational Residency Requirements from the Framers to the Present, 43 Fla. State U.L. Rev. 611, 622 (2016). ↩︎
15. 2 Farrand’s 249–50. ↩︎
16. Id. at 250–51. ↩︎
17. Federalist No. 64 (Jay). ↩︎
18. Federalist No. 62 (Madison). ↩︎
19. 3 Story’s Commentaries § 727. ↩︎
20. Henry Clay: A Featured Biography, United States Senate, https://perma.cc/FV96-VS5V. ↩︎
21. Youngest Senator, United States Senate, https://perma.cc/3QTQ-ER8Q. ↩︎
22. Id. ↩︎
23. Id. ↩︎
24. Josh Blackman, Original Citizenship, 159 U. Penn. L. Rev. PENNumbra 95 (2010). ↩︎
25. Stephen E. Sachs, Can a Marylander Be the Senator from California?, Volokh Conspiracy, Oct. 3, 2023, https://perma.cc/S78G-3P6B; Josh Blackman, Laphonza Butler Better Hope Other Senators Are Textualists, Volokh Conspiracy, Oct. 3, 2023, https://perma.cc/J2G9-FDYS. ↩︎