OCTOBER TERM, 1994
Syllabus
u. S. TERM LIMITS, INC., ET AL.
v. THORNTON ET AL.
CERTIORARI TO THE SUPREME COURT OF ARKANSAS No. 93-1456. Argued
November 29, 1994-Decided May 22,1995*
Respondent Hill filed this suit in Arkansas state court
challenging the constitutionality of § 3 of Amendment 73 to the
Arkansas Constitution, which prohibits the name of an
otherwise-eligible candidate for Congress from appearing on the
general election ballot if that candidate has already served three
terms in the House of Representatives or two terms in the Senate.
The trial court held that § 3 violated Article I of the Federal
Constitution, and the Arkansas Supreme Court affirmed. A plurality
of the latter court concluded that the States have no authority "to
change, add to, or diminish" the age, citizenship, and residency
requirements for congressional service enumerated in the
Qualifications Clauses, U. S. Const., Art. I, § 2, cl. 2, and Art.
I, § 3, cl. 3, and rejected the argument that Amendment 73 is
constitutional because it is formulated as a ballot access
restriction rather than an outright disqualification of
congressional incumbents.
Held: Section 3 of Amendment 73 to the Arkansas
Constitution violates the Federal Constitution. Pp. 787-838.
(a) The power granted to each House of Congress to judge the
"Qualifications of its own Members," Art. I, § 5, cl. 1, does not
include the power to alter or add to the qualifications set forth
in the Constitution's text.
Powell v.
McCormack,
395 U. S. 486,
540. After examining
Powell's analysis of the Qualifications
Clauses' history and text,
id., at 518-548, and its
articulation of the "basic principles of our democratic system,"
id., at 548, this Court reaffirms that the constitutional
qualifications for congressional service are "fixed," at least in
the sense that they may not be supplemented by Congress. Pp.
787-798.
(b) So too, the Constitution prohibits States from imposing
congressional qualifications additional to those specifically
enumerated in its text. Petitioners' argument that States possess
control over qualifications as part of the original powers reserved
to them by the Tenth Amendment is rejected for two reasons. First,
the power to add qualifications is not within the States' pre-Tenth
Amendment "original powers," but is a new right arising from the
Constitution itself, and thus is
*Together with No. 93-1828, Bryant, Attorney General of Arkansas
v.
Hill et al., also on certiorari to the same court.
780
Syllabus
not reserved. Second, even if the States possessed some original
power in this area, it must be concluded that the Framers intended
the Constitution to be the exclusive source of qualifications for
Members of Congress, and that the Framers thereby "divested" States
of any power to add qualifications. That this is so is demonstrated
by the unanimity among the courts and learned commentators who have
considered the issue; by the Constitution's structure and the text
of pertinent constitutional provisions, including Art. I, § 2, cl.
1, Art. I, § 4, cl. 1, Art. I, § 6, and Art. I, § 5, cl. 1; by the
relevant historical materials, including the records of the
Constitutional Convention and the ratification debates, as well as
Congress' subsequent experience with state attempts to impose
qualifications; and, most importantly, by the "fundamental
principle of our representative democracy ... 'that the people
should choose whom they please to govern them,'"
Powell, 395
U. S., at 547. Permitting individual States to formulate diverse
qualifications for their congressional representatives would result
in a patchwork that would be inconsistent with the Framers' vision
of a uniform National Legislature representing the people of the
United States. The fact that, immediately after the adoption of the
Constitution, many States imposed term limits and other
qualifications on state officers, while only one State imposed such
a qualification on Members of Congress, provides further persuasive
evidence of a general understanding that the qualifications in the
Constitution were unalterable by the States. Pp. 798-827.
(c) A state congressional term limits measure is
unconstitutional when it has the likely effect of handicapping a
class of candidates and has the sole purpose of creating additional
qualifications indirectly. The Court rejects petitioners' argument
that Amendment 73 is valid because it merely precludes certain
congressional candidates from being certified and having their
names appear on the ballot, and allows them to run as write-in
candidates and serve if elected. Even if petitioners' narrow
understanding of qualifications is correct, Amendment 73 must fall
because it is an indirect attempt to evade the Qualifications
Clauses' requirements and trivializes the basic democratic
principles underlying those Clauses. Nor can the Court agree with
petitioners' related argument that Amendment 73 is a permissible
exercise of state power under the Elections Clause, Art. I, § 4,
cl. 1, to regulate the "Times, Places and Manner of holding
Elections." A necessary consequence of that argument is that
Congress itself would have the power under the Elections Clause to
"make or alter" a measure such as Amendment 73, a result that is
unfathomable under
Powell. Moreover, petitioners' broad
construction is fundamentally inconsistent with the Framers' view
of the Elections Clause, which was intended to grant States
authority to protect the integrity and regularity of the election
process by regulating
781
election
procedures, see,
e. g., Storer v.
Brown, 415 U.
S. 724, 730, 733, not to provide them with license to impose
substantive qualifications that would exclude classes of candidates
from federal office. Pp.828-836.
(d) State imposition of term limits for congressional service
would effect such a fundamental change in the constitutional
framework that it must come through a constitutional amendment
properly passed under the procedures set forth in Article V. Absent
such an amendment, allowing individual States to craft their own
congressional qualifications would erode the structure designed by
the Framers to form a "more perfect Union." Pp. 837-838.
316 Ark. 251, 872 S. W. 2d 349, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J.,
filed a concurring opinion,
post, p. 838. THOMAS, J., filed
a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and
SCALIA, JJ., joined,
post, p.845.
J. Winston Bryant, Attorney General of Arkansas,
pro se, argued the cause for petitioner in No. 93-1828. With
him on the briefs were
Jeffrey A. Bell, Deputy Attorney
General,
Ann Purvis and
David R. Raupp, Assistant
Attorneys General,
Griffin B. Bell, Paul J.
Larkin, Jr., Richard F. Hatfield, and
Cleta Deatherage
Mitchell. John G.
Kester argued the cause for
petitioners in No. 93-1456. With him on the briefs was
H.
William Allen. Robert H. Bork, Theodore B. Olson, and
Thomas G.
Hungar filed briefs for Representative Jay
Dickey et al., and
Edward W Warren filed briefs for the
Republican Party of Arkansas et al., as respondents under this
Court's Rule 12.4.
Louis R. Cohen argued the cause for respondents in both cases.
With him on the brief for respondents in No. 93-1828 were W Hardy
Callcott, Peter B. Hutt II, and Elizabeth
J. Robben. Henry
Maurice Mitchell, Sherry P. Bartley, Rex E. Lee, Carter G.
Phillips, Ronald S. Flagg, Mark D. Hopson, Joseph R. Guerra, and
Jeffrey T. Green filed a brief for respondent Thornton in No.
93-1456.
Solicitor General Days argued the cause for the United
States as
amicus curiae urging affirmance. With him on
782
the brief were Assistant Attorneys General Dellinger and Hunger,
Deputy Solicitor General Bender, Paul R.
Q. Wolfson, and
Douglas N. Letter. t
JUSTICE STEVENS delivered the opinion of the Court.
The Constitution sets forth qualifications for membership in the
Congress of the United States. Article I, § 2, cl. 2, which applies
to the House of Representatives, provides:
tBriefs of
amici curiae urging reversal in both cases
were filed for the State of Nebraska et al. by
Don Stenberg,
Attorney General of Nebraska, and
L. Steven Grasz, Deputy
Attorney General, and by the Attorneys General for their respective
States as follows:
Daniel E. Lungren of California,
Gale
A. Norton of Colorado,
Richard Blumenthal of
Connecticut,
Charles M. Oberly III of Delaware,
Robert A.
Butterworth of Florida,
Michael J. Bowers
of Georgia,
Robert A. Marks of Hawaii,
Robert T.
Stephan of Kansas,
Chris Gorman of Kentucky,
Scott
Harshbarger of Massachusetts,
Joseph P. Mazurek of
Montana,
Jeffrey R. Howard of New Hampshire,
Lee
Fisher of Ohio,
Mark Barnett of South Dakota,
Charles
W Burson of Tennessee, and
Joseph B. Meyer of Wyoming;
for the State of Washington by
Christine O.
Gregoire,
Attorney General,
James K. Pharris and
William B.
Collins, Senior Assistant Attorneys General, and
Jeffrey T.
Even, Assistant Attorney General; for Citizens for Term Limits
et al. by
Ronald A. Zumbrun, Anthony T. Caso, Deborah
J. La Fetra, and
John M. Groen; for the
Citizens United Foundation by
William J. Olson
and
John S.
Miles; for Congressional Term Limits
Coalition, Inc., by
John C.
Armor and
Lowell D.
Weeks; for the Mountain States Legal Foundation et al. by
William Perry Pendley; for People's Advocate, Inc., et al.
by
Jayna P. Karpinski; for the United States Justice
Foundation by
James V. Lacy; for Virginians for Term Limits
et al. by
Charles A. Shanor, Zachary D. Fasman, Margaret H.
Spurlin, and G.
Stephen Parker; and for the Washington
Legal Foundation et al. by
Timothy E. Flanigan, Daniel
J. Popeo, and
Paul D. Kamenar.
Briefs of
amici curiae urging reversal in No. 93-1456
were filed for the Alaska Committee for a Citizen Congress et al.
by
Jeanette R. Burrage; for the Allied Educational
Foundation by
Bertram R. Gelfand and
Jeffrey
Briefs of
amici curiae urging affirmance in both cases
were filed for the American Civil Liberties Union et al. by
Kevin J. Hamilton and
Steven R.
Shapiro; for the California Democratic Party by
Daniel H.
Lowenstein and
Jonathan H. Steinberg; for the League of
Women Voters of the United States et al. by
Frederic C.
Tausend and
Herbert E. Wilgis III; and for Henry J.
Hyde by
Charles A. Rothfeld.
783
"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."
Article I, § 3, cl. 3, which applies to the Senate, similarly
provides:
"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."
Today's cases present a challenge to an amendment to the
Arkansas State Constitution that prohibits the name of an
otherwise-eligible candidate for Congress from appearing on the
general election ballot if that candidate has already served three
terms in the House of Representatives or two terms in the Senate.
The Arkansas Supreme Court held that the amendment violates the
Federal Constitution. We agree with that holding. Such a
state-imposed restriction is contrary to the "fundamental principle
of our representative democracy," embodied in the Constitution,
that "the people should choose whom they please to govern them."
Powell v.
McCormack, 395 U. S. 486, 547 (1969)
(internal quotation marks omitted). Allowing individual States to
adopt their own qualifications for congressional service would be
inconsistent with the Framers' vision of a uniform National
Legislature representing the people of the United States. If the
qualifications set forth in the text of the Constitution are to be
changed, that text must be amended.
I
At the general election on November 3, 1992, the voters of
Arkansas adopted Amendment 73 to their State Constitution. Proposed
as a "Term Limitation Amendment," its preamble stated:
784
"The people of Arkansas find and declare that elected officials
who remain in office too long become preoccupied with reelection
and ignore their duties as representatives of the people.
Entrenched incumbency has reduced voter participation and has led
to an electoral system that is less free, less competitive, and
less representative than the system established by the Founding
Fathers. Therefore, the people of Arkansas, exercising their
reserved powers, herein limit the terms of elected officials."
The limitations in Amendment 73 apply to three categories of
elected officials. Section 1 provides that no elected official in
the executive branch of the state government may serve more than
two 4-year terms. Section 2 applies to the legislative branch of
the state government; it provides that no member of the Arkansas
House of Representatives may serve more than three 2-year terms and
no member of the Arkansas Senate may serve more than two 4-year
terms. Section 3, the provision at issue in these cases, applies to
the Arkansas Congressional Delegation. It provides:
"(a) Any person having been elected to three or more terms as a
member of the United States House of Representatives from Arkansas
shall not be certified as a candidate and shall not be eligible to
have his/her name placed on the ballot for election to the United
States House of Representatives from Arkansas.
"(b) Any person having been elected to two or more terms as a
member of the United States Senate from Arkansas shall not be
certified as a candidate and shall not be eligible to have his/her
name placed on the ballot for election to the United States Senate
from Arkansas."
Amendment 73 states that it is self-executing and shall apply to
all persons seeking election after January 1, 1993.
On November 13, 1992, respondent Bobbie Hill, on behalf of
herself, similarly situated Arkansas "citizens, residents,
785
taxpayers and registered voters," and the League of Women Voters
of Arkansas, filed a complaint in the Circuit Court for Pulaski
County, Arkansas, seeking a declaratory judgment that § 3 of
Amendment 73 is "unconstitutional and void." Her complaint named as
defendants then-Governor Clinton, other state officers, the
Republican Party of Arkansas, and the Democratic Party of Arkansas.
The State of Arkansas, through its Attorney General, petitioner
Winston Bryant, intervened as a party defendant in support of the
amendment. Several proponents of the amendment also intervened,
including petitioner U. S. Term Limits, Inc.
On cross-motions for summary judgment, the Circuit Court held
that § 3 of Amendment 73 violated Article I of the Federal
Constitution.1
With respect to that holding, in a 5-to-2 decision, the Arkansas
Supreme Court affirmed.
U. S.
Term Limits, Inc. v.
Hill, 316 Ark. 251, 872 S. W. 2d 349, 351 (1994). Writing
for a plurality of three justices, Justice Robert L. Brown
concluded that the congressional restrictions in Amendment 73 are
unconstitutional because the States have no authority "to change,
add to, or diminish" the requirements for congressional service
enumerated in the Qualifications Clauses.
Id., at 265,872 S.
W. 2d, at 356. He noted:
"If there is one watchword for representation of the various
states in Congress, it is uniformity. Federal legislators speak to
national issues that affect the citizens of every state .... The
uniformity in qualifications man-
1 The Circuit Court also held that § 3 was severable from the
other provisions of the amendment, but that the entire amendment
was void under state law for lack of an enacting clause. App. to
Pet. for Cert. in No. 93-1456, p. 60a. The Arkansas Supreme Court
affirmed the Circuit Court's decision regarding severability,
U. S.
Term Limits, Inc. v.
Hill, 316 Ark. 251,
270, 872 S. W. 2d 349, 359 (1994), and reversed its decision
regarding the enacting clause,
id., at 263, 872 S. W. 2d, at
355. The decision of the Arkansas Supreme Court with respect to
those issues of state law is not before us.
786
dated in Article 1 provides the tenor and the fabric for
representation in the Congress. Piecemeal restrictions by State
would fly in the face of that order." Ibid.
Justice Brown's plurality opinion also rejected the argument
that Amendment 73 is "merely a ballot access amendment," concluding
that "[t]he intent and the effect of Amendment 73 are to disqualify
congressional incumbents from further service."
Id., at
265-266, 872 S. W. 2d, at 356-357. Justice Brown considered the
possibilities that an excluded candidate might run for Congress as
a write-in candidate or be appointed to fill a vacancy to be
"glimmers of opportunity ... [that] are faint indeed-so faint in
our judgment that they cannot salvage Amendment 73 from
constitutional attack."
Id., at 266, 872 S. W. 2d, at 357.
In separate opinions, Justice Dudley and Justice Gerald P. Brown
agreed that Amendment 73 violates the Federal Constitution.
Two justices dissented from the federal constitutional holding.
Justice Hays started from "the premise that all political authority
resides in the people, limited only by those provisions of the
federal or state constitutions specifically to the contrary."
Id., at 281, 872 S. W. 2d, at 367. Because his examination
of the text and history of the Qualifications Clauses convinced him
that the Constitution contains no express or implicit restriction
on the States' ability to impose additional qualifications on
candidates for Congress, Justice Hays concluded that § 3 is
constitutional. Special Chief Justice Cracraft, drawing a
distinction between a measure that "impose[s] an absolute bar on
incumbent succession" and a measure that "merely makes it more
difficult for an incumbent to be elected,"
id., at 284, 872
S. W. 2d, at 368, concluded that Amendment 73 does not even
implicate the Qualifications Clauses, and instead is merely a
permissible ballot access restriction.
The State of Arkansas, by its Attorney General, and the
intervenors petitioned for writs of certiorari. Because of the
importance of the issues, we granted both petitions and
787
consolidated the cases for argument. See 512 U. S. 1218 (1994).
We now affirm.
II
As the opinions of the Arkansas Supreme Court suggest, the
constitutionality of Amendment 73 depends critically on the
resolution of two distinct issues. The first is whether the
Constitution forbids States to add to or alter the qualifications
specifically enumerated in the Constitution. The second is, if the
Constitution does so forbid, whether the fact that Amendment 73 is
formulated as a ballot access restriction rather than as an
outright disqualification is of constitutional significance. Our
resolution of these issues draws upon our prior resolution of a
related but distinct issue: whether Congress has the power to add
to or alter the qualifications of its Members.
Twenty-six years ago, in
Powell v.
McCormack,
395 U. S. 486
(1969), we reviewed the history and text of the Qualifications
Clauses 2 in a case involving an attempted exclusion
2 As we explained, that term may describe more than the
provisions quoted,
supra, at 783:
"In addition to the three qualifications set forth in Art. I, §
2, Art. I, § 3, cl. 7, authorizes the disqualification of any
person convicted in an impeachment proceeding from 'any Office of
honor, Trust or Profit under the United States'; Art. I, § 6, cl.
2, provides that 'no Person holding any Office under the United
States, shall be a Member of either House during his Continuance in
Office'; and § 3 of the 14th Amendment disqualifies any person
'who, having previously taken an oath ... to support the
Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort
to the enemies thereof.' It has been argued that each of these
provisions, as well as the Guarantee Clause of Article IV and the
oath requirement of Art. VI, cl. 3, is no less a 'qualification'
within the meaning of Art. I, § 5, than those set forth in Art. I,
§2."
Powell v.
McCormack, 395 U. S. 486, 520, n. 41
(1969).
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."
Ibid. We similarly have no need to resolve that
question today: Because those additional provisions are part of the
text of the Constitution, they have little bearing
788
of a duly elected Member of Congress. The principal issue was
whether the power granted to each House in Art. I, § 5, cl. 1, to
judge the "Qualifications of its own Members"3 includes the power
to impose qualifications other than those set forth in the text of
the Constitution. In an opinion by Chief Justice Warren for eight
Members of the Court,4 we held that it does not. Because of the
obvious importance of the issue, the Court's review of the history
and meaning of the relevant constitutional text was especially
thorough. We therefore begin our analysis today with a full
statement of what we decided in that case.
The Issue in Powell
In November 1966, Adam Clayton Powell, Jr., was elected from a
District in New York to serve in the United States House of
Representatives for the 90th Congress. Allegations that he had
engaged in serious misconduct while serving as a committee chairman
during the 89th Congress led to the appointment of a Select
Committee to determine his eligibility to take his seat. That
committee found that Powell met the age, citizenship, and residency
requirements set forth in Art. I, § 2, cl. 2. The committee also
found, however, that Powell had wrongfully diverted House funds for
the use of others and himself and had made false reports on
expenditures of foreign currency. Based on those findings, the
House after debate adopted House Resolution 278, excluding
on whether Congress and the States may add qualifications to
those that appear in the Constitution.
3 Art. I, § 5, cl. 1, provides in part: "Each House shall be the
Judge of the Elections, Returns and Qualifications of its own
Members, and a Majority of each shall constitute a Quorum to do
business .... "
4Justice Stewart dissented on procedural grounds, arguing that
the case should have been dismissed as moot. See 395 U. S., at
559-561. Other than expressing agreement with the characterization
of the case as raising constitutional issues which "'touch the
bedrock of our political system [and] strike at the very heart of
representative government,'"
id., at 573, Justice Stewart
did not comment on the merits.
789
Powell from membership in the House, and declared his seat
vacant. See 395 U. S., at 489-493.
Powell and several voters of the district from which he had been
elected filed suit seeking a declaratory judgment that the House
Resolution was invalid because Art. I, § 2, cl. 2, sets forth the
exclusive qualifications for House membership. We ultimately
accepted that contention, concluding that the House of
Representatives has no "authority to
exclude 5 any person,
duly elected by his constituents, who meets all the requirements
for membership expressly prescribed in the Constitution." 395 U.
S., at 522 (emphasis in original); see also
id., at 547.6 In
reaching that conclusion, we undertook a detailed historical review
to determine the intent of the Framers. Though recognizing that the
Constitutional Convention debates themselves were inconclusive, see
id., at 532, we determined that the "relevant historical
materials" reveal that Congress has no power to alter the
qualifications in the text of the Constitution,
id., at
522.
Powell's Reliance on History
We started our analysis in
Powell by examining the
British experience with qualifications for membership in
Parliament, focusing in particular on the experience of John
Wilkes. While serving as a member of Parliament, Wilkes had
published an attack on a peace treaty with France. This
5 The
Powell Court emphasized the word "exclude" because
it had been argued that the House Resolution depriving Powell of
his seat should be viewed as an expulsion rather than an exclusion.
Having rejected that submission, the Court expressed no opinion on
issues related to the House's power to expel a Member who has been
sworn in and seated.
6 Though
Powell addressed only the power of the House,
the Court pointed out that its rationale was equally applicable to
the Senate: "Since Art. I, § 5, cl. 1, applies to both Houses of
Congress, the scope of the Senate's power to judge the
qualification of its members necessarily is identical to the scope
of the House's power, with the exception, of course, that Art. I, §
3, cl. 3, establishes different age and citizenship requirements
for membership in the Senate."
Id., at 522, n. 44.
790
literary endeavor earned Wilkes a conviction for seditious libel
and a 22-month prison sentence. In addition, Parliament declared
Wilkes ineligible for membership and ordered him expelled. Despite
(or perhaps because of) these difficulties, Wilkes was reelected
several times. Parliament, however, persisted in its refusal to
seat him. After several years of Wilkes' efforts, the House of
Commons voted to expunge the resolutions that had expelled Wilkes
and had declared him ineligible, labeling those prior actions
"'subversive of the rights of the whole body of electors of this
kingdom.'"
Id., at 528, quoting 22 Parliamentary History of
England 1411 (1782) (ParI. Hist. Eng.). After reviewing Wilkes'
"long and bitter struggle for the right of the British electorate
to be represented by men of their own choice," 395 U. S., at 528,
we concluded in
Powell that "on the eve of the
Constitutional Convention, English precedent stood for the
proposition that 'the law of the land had regulated the
qualifications of members to serve in parliament' and those
qualifications were 'not occasional but fixed.'"
Ibid.,
quoting 16 ParI. Hist. Eng. 589, 590 (1769).
Against this historical background, we viewed the Convention
debates as manifesting the Framers' intent that the qualifications
in the Constitution be fixed and exclusive. We found particularly
revealing the debate concerning a proposal made by the Committee of
Detail that would have given Congress the power to add property
qualifications. James Madison argued that such a power would vest
"'an improper & dangerous power in the Legislature,'" by which
the Legislature" 'can by degrees subvert the Constitution.'" 395 U.
S., at 533-534, quoting 2 Records of the Federal Convention of
1787, pp. 249-250 (M. Farrand ed. 1911) (hereinafter Farrand). 7
Madison continued: "'A Republic may be
7 Though we recognized that Madison was responding to a proposal
that would have allowed Congress to impose property restrictions,
we noted that "Madison's argument was not aimed at the imposition
of a property
791
converted into an aristocracy or oligarchy as well by limiting
the number capable of being elected, as the number authorised to
elect.'" 395 U. S., at 534, quoting 2 Farrand 250. We expressly
noted that the "parallel between Madison's arguments and those made
in Wilkes' behalf is striking." 395 U. S., at 534.
The Framers further revealed their concerns about congressional
abuse of power when Gouverneur Morris suggested modifying the
proposal of the Committee of Detail to grant Congress unfettered
power to add qualifications. We noted that Hugh Williamson
"expressed concern that if a majority of the legislature should
happen to be 'composed of any particular description of men, of
lawyers for example, ... the future elections might be secured to
their own body.'"
Id., at 535, quoting 2 Farrand 250. We
noted, too, that Madison emphasized the British Parliament's
attempts to regulate qualifications, and that he observed: "'[T]he
abuse they had made of it was a lesson worthy of our attention.'"
395 U. S., at 535, quoting 2 Farrand 250. We found significant that
the Convention rejected both Morris' modification and the
Committee's proposal.
We also recognized in
Powell that the post-Convention
ratification debates confirmed that the Framers understood the
qualifications in the Constitution to be fixed and unalterable by
Congress. For example, we noted that in response to the
antifederalist charge that the new Constitution favored the wealthy
and well born, Alexander Hamilton wrote:
"'The truth is that 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 upon the national
government .... The
qualification as such, but rather at the delegation to the
Congress of the discretionary power to establish any
qualifications."
Id., at 534.
792
qualifications of the persons who may choose or be chosen, as
has been remarked upon other occasions, are defined and fixed in
the Constitution, and are unalterable by the legislature.''' 395 U.
S., at 539, quoting The Federalist No. 60, p. 371 (C. Rossiter ed.
1961) (emphasis added) (hereinafter The Federalist).
We thus attached special significance to "Hamilton's express
reliance on the immutability of the qualifications set forth in the
Constitution." 395 U. S., at 540. Moreover, we reviewed the debates
at the state conventions and found that they "also demonstrate the
Framers' understanding that the qualifications for members of
Congress had been fixed in the Constitution."
Ibid.; see,
e. g., id., at 541, citing 3 Debates on the Adoption of the
Federal Constitution 8 (J. Elliot ed. 1863) (hereinafter Elliot's
Debates) (Wilson Carey Nicholas, Virginia).8
The exercise by Congress of its power to judge the
qualifications of its Members further confirmed this understanding.
We concluded that, during the first 100 years of its existence,
"Congress strictly limited its power to judge the qualifications of
its members to those enumerated in the Constitution." 395 U. S., at
542.
As this elaborate summary reveals, our historical analysis in
Powell was both detailed and persuasive. We thus conclude
now, as we did in
Powell, that history shows that, with
8 Our examination of the history also caused us to reject the
argument that the negative phrasing of the Clauses indicated that
the Framers did not limit the power of the House to impose
additional qualifications for membership.
Id., at 537
(noting that the Committee of Style, which edited the
Qualifications Clauses to incorporate "their present negative
form," had" 'no authority from the Convention to make alterations
of substance in the Constitution as voted by the Convention, nor
did it purport to do so' ");
id., at 539, quoting C. Warren,
The Making of the Constitution 422, n. 1 (1947) (hereinafter
Warren); see also 2 Farrand 553 (the Committee of Style was
appointed "to revise the stile and arrange the articles which had
been agreed to").
793
respect to Congress, the Framers intended the Constitution to
establish fixed qualifications.9
Powell's Reliance on Democratic Principles
In
Powell, of course, we did not rely solely on an
analysis of the historical evidence, but instead complemented that
analysis with "an examination of the basic principles of our
democratic system."
Id., at 548. We noted that allowing
Congress to impose additional qualifications would violate that
"fundamental principle of our representative democracy ... 'that
the people should choose whom they please to govern them.'"
Id., at 547, quoting 2 Elliot's Debates 257 (A. Hamilton,
New York).
Our opinion made clear that this broad principle incorporated at
least two fundamental ideas.10 First, we empha-
9 The text of the Qualifications Clauses also supports the
result we reached in
Powell. John Dickinson of Delaware
observed that the enumeration of a few qualifications "would by
implication tie up the hands of the Legislature from supplying
omissions." 2 Farrand 123. Justice Story made the same point:
"It would seem but fair reasoning upon the plainest principles
of interpretation, that when the constitution established certain
qualifications, as necessary for office, it meant to exclude all
others, as prerequisites. From the very nature of such a provision,
the affirmation of these qualifications would seem to imply a
negative of all others." 1 J. Story, Commentaries on the
Constitution of the United States § 625 (3d ed. 1858) (hereinafter
Story). See also Warren 421 ("As the Constitution ... expressly set
forth the qualifications of age, citizenship, and residence, and as
the Convention refused to grant to Congress power to establish
qualifications in general, the maxim
expressio unius exclusio
alterius would seem to apply").
As Dickinson's comment demonstrates, the Framers were well aware
of the
expressio unius argument that would result from their
wording of the Qualifications Clauses; they adopted that wording
nonetheless. There thus is no merit either to the dissent's
suggestion that Story was the first to articulate the
expressio
unius argument, see
post, at 868-869, or to the
dissent's assertion that that argument is completely without
merit.
10 The principle also incorporated the more practical concern
that reposing the power to adopt qualifications in Congress would
lead to a selfperpetuating body to the detriment of the new
Republic. See,
e. g.,
794
sized the egalitarian concept that the opportunity to be elected
was open to all.ll We noted in particular Madison's statement in
The Federalist that" '[u]nder these reasonable limitations
[enumerated in the Constitution], 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 of religious
faith.'"
Powell, 395 U. S., at 540, n. 74, quoting The
Federalist No. 52, at 326. Similarly, we noted that Wilson Carey
Nicholas defended the Constitution against the charge that it
"violated democratic principles" by arguing: "'It has ever been
considered a great security to liberty, that very few should be
excluded from the right of being chosen to the legislature. This
Constitution has amply attended to this idea. We find no
qualifications required except those of age and residence.'" 395 U.
S., at 541, quoting 3 Elliot's Debates 8.
Second, we recognized the critical postulate that sovereignty is
vested in the people, and that sovereignty confers on the people
the right to choose freely their representatives to the National
Government. For example, we noted that "Robert Livingston ...
endorsed this same fundamental principle: 'The people are the best
judges who ought to represent them. To dictate and control them, to
tell them whom they shall not elect, is to abridge their
natural
Powell, 395 U. S., at 533-534, quoting 2 Farrand 250
(Madison) (" 'If the Legislature could regulate [the qualification
of electors or elected], it can by degrees subvert the
Constitution. A Republic may be converted into an aristocracy or
oligarchy as well by limiting the number capable of being elected,
as the number authorised to elect' "); 395 U. S., at 535-536
(citing statements of Williamson and Madison emphasizing the
potential for legislative abuse).
11 Contrary to the dissent's suggestion,
post, at 879, we
do not understand
Powell as reading the Qualifications
Clauses "to create a personal right to be a candidate for
Congress." The Clauses did, however, further the interest of the
people of the entire Nation in keeping the door to the National
Legislature open to merit of every description.
795
rights.'" 395 U. S., at 541, n. 76, quoting 2 Elliot's Debates
292-293. Similarly, we observed that "[b]efore the New York
convention ... , Hamilton emphasized: 'The true principle of a
republic is, that the people should choose whom they please to
govern them. Representation is imperfect in proportion as the
current of popular favor is checked. This great source of free
government, popular election, should be perfectly pure, and the
most unbounded liberty allowed.'" 395 U. S., at 540-541, quoting 2
Elliot's Debates 257. Quoting from the statement made in 1807 by
the Chairman of the House Committee on Elections, we noted that
"restrictions upon the people to choose their own representatives
must be limited to those 'absolutely necessary for the safety of
the society.'" 395 U. S., at 543, quoting 17 Annals of Congo 874
(1807). Thus, in
Powell, we agreed with the sentiment
expressed on behalf of Wilkes' admission to Parliament: " 'That the
right of the electors to be represented by men of their own choice,
was so essential for the preservation of all their other rights,
that it ought to be considered as one of the most sacred parts of
our constitution.'" 395 U. S., at 534, n. 65, quoting 16 ParI.
Hist. Eng. 589-590 (1769).
Powell thus establishes two important propositions:
first, that the "relevant historical materials" compel the
conclusion that, at least with respect to qualifications imposed by
Congress, the Framers intended the qualifications listed in the
Constitution to be exclusive; and second, that that conclusion is
equally compelled by an understanding of the "fundamental principle
of our representative democracy ... 'that the people should choose
whom they please to govern them.'" 395 U. S., at 547.
Powell's Holding
Petitioners argue somewhat half-heartedly that the narrow
holding in
Powell, which involved the power of the House to
exclude a Member pursuant to Art. I, § 5, does not control the more
general question whether Congress has the
796
power to add qualifications.
Powell, however, is not
susceptible to such a narrow reading. Our conclusion that Congress
may not alter or add to the qualifications in the Constitution was
integral to our analysis and outcome. See,
e. g.,
id., at 540 (noting "Framers' understanding that the qualifications
for members of Congress had been fixed in the Constitution"). Only
two Terms ago we confirmed this understanding of
Powell in
Nixon v.
United States, 506 U. S. 224 (1993).
After noting that the three qualifications for membership specified
in Art. I, § 2, are of "a precise, limited nature" and
"unalterable by the legislature," we explained:
"Our conclusion in Powell was based on the fixed meaning
of '[q]ualifications' set forth in Art. I, § 2. The claim by the
House that its power to 'be the Judge of the Elections, Returns and
Qualifications of its own Members' was a textual commitment of
unreviewable authority was defeated by the existence of this
separate provision specifying the only qualifications which might
be imposed for House membership." Id., at 237.12
12JUSTICE THOMAS' dissent purports to agree with the outcome of
Powell, but rejects the reasoning in the opinion. The
dissent treats
Powell as simply an application of the
"default rule" that if "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."
Post,
at 848, 876, 885-886. However, there is not a word in the Court's
opinion in
Powell suggesting that the decision rested on the
"default rule" that undergirds the dissent's entire analysis. On
the contrary, as the excerpt from
Nixon quoted in the text
plainly states, our conclusion in
Powell was based on our
understanding of the "fixed meaning of '[q]ualifications' set forth
in Art. I, § 2." We concluded that the Framers affirmatively
intended the qualifications set forth in the text of the
Constitution to be exclusive in order to effectuate the principle
that in a representative democracy the people should choose whom
they please to govern them.
Moreover, the Court has never treated the dissent's "default
rule" as absolute. In
McCulloch v.
Maryland, 4 Wheat.
316 (1819), for example, Chief Justice Marshall rejected the
argument that the Constitution's silence on state power to tax
federal instrumentalities requires that States
797
Unsurprisingly, the state courts and lower federal courts have
similarly concluded that
Powell conclusively resolved the
issue whether Congress has the power to impose additional
qualifications. See,
e. g., Joyner v.
Mofford, 706 F.2d
1523, 1528 (CA9 1983) ("In
Powell ... , the Supreme
Court accepted this restrictive view of the Qualifications Clauseat
least as applied to Congress");
Michel v.
Anderson,
14 F.3d
623 (CADC 1994) (citing
Nixon's description of
Powell's holding);
Stumpf v.
Lau, 108 Nev.
826, 830, 839 P. 2d 120, 122 (1992) (citing
Powell for the
proposition that "[n]ot even Congress has the power to alter
qualifications for these constitutional federal officers").13
have the power to do so. Under the dissent's unyielding
approach, it would seem that
McCulloch was wrongly decided.
Similarly, the dissent's approach would invalidate our dormant
Commerce Clause jurisprudence, because the Constitution is clearly
silent on the subject of state legislation that discriminates
against interstate commerce. However, though JUSTICE THOMAS has
endorsed just that argument, see,
e. g.,
Oklahoma Tax Comm'n v.
Jefferson Lines, Inc., ante,
p. 175 (SCALIA, J., concurring in judgment, joined by THOMAS, J.),
the Court has consistently rejected that argument and has continued
to apply the dormant Commerce Clause, see,
e. g., ante, at
179-180;
Bendix Autolite Corp. v.
Midwesco Enterprises,
Inc., 486 U. S.
888 (1988).
13 Our decision in
Powell and its historical analysis
were consistent with prior decisions from state courts. For
example, in
State ex rel. Johnson v.
Crane, 65 Wyo.
189, 197 P. 2d 864 (1948), the Wyoming Supreme Court undertook a
detailed historical analysis and concluded that the Qualifications
Clauses were exclusive. Several other courts reached the same
result, though without performing the same detailed historical
analysis. See,
e. g., Hellmann v.
Collier, 217 Md.
93, 141 A. 2d 908 (1958);
State ex rel. Chandler v.
Howell, 104 Wash. 99, 175 P. 569 (1918);
State ex rel.
Eaton v.
Schmahl, 140 Minn. 219, 167 N. W. 481 (1918);
see generally
State ex rel. Johnson v.
Crane, 65
Wyo., at 204-213, 197 P. 2d, at 869-874 (citing cases).
The conclusion and analysis were also consistent with the
positions taken by commentators and scholars. See,
e. g., n.
9,
supra; see also Warren 412-422 (discussing history and
concluding that "[t]he elimination of all power in Congress to fix
qualifications clearly left the provisions of the Constitution
itself as the sole source of qualifications").
798
In sum, after examining
Powell's historical analysis and
its articulation of the "basic principles of our democratic
system," we reaffirm 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.
III
Our reaffirmation of
Powell does not necessarily resolve
the specific questions presented in these cases. For petitioners
argue that whatever the constitutionality of additional
qualifications for membership imposed by Congress, the historical
and textual materials discussed in
Powell do not support the
conclusion that the Constitution prohibits additional
qualifications imposed by States. In the absence of such a
constitutional prohibition, petitioners argue, the Tenth Amendment
and the principle of reserved powers require that States be allowed
to add such qualifications.
Before addressing these arguments, we find it appropriate to
take note of the striking unanimity among the courts that have
considered the issue. None of the overwhelming array of briefs
submitted by the parties and
amici has called to our
attention even a single case in which a state court or federal
court has approved of a State's addition of qualifications for a
Member of Congress. To the contrary, an impressive number of courts
have determined that States lack the authority to add
qualifications. See,
e. g., Chandler v.
Howell, 104
Wash. 99, 175 P. 569 (1918);
Eckwall v.
Stadelman,
146 Ore. 439, 446, 30 P. 2d 1037, 1040 (1934);
Stockton v.
McFarland, 56 Ariz. 138, 144, 106 P. 2d 328, 330 (1940);
State ex rel. Johnson v.
Crane, 65 Wyo. 189, 197 P.
2d 864
(1948); Dillon v.
Fiorina, 340 F. Supp. 729,
731 (N. M. 1972);
Stack v.
Adams, 315 F. Supp. 1295,
1297-1298 (ND Fla. 1970);
Buckingham v.
State, 42
Del. 405, 35 A. 2d 903, 905 (1944);
Stumpf v.
Lau,
108 Nev. 826, 830, 839 P. 2d 120, 123 (1992);
Danielson v.
Fitzsimmons, 232 Minn. 149, 151,44 N. W. 2d 484, 486 (1950);
In re Opinion of Judges, 79 S. D. 585, 587,
799
116 N. W. 2d 233, 234 (1962). Courts have struck down
state-imposed qualifications in the form of term limits, see,
e.
g., Thorsted v.
Gregoire, 841 F. Supp. 1068, 1081 (WD
Wash.
1994); Stumpf v.
Lau, 108 Nev., at 830,
839 P. 2d, at 123, district residency requirements, see,
e. g.,
Hellmann v.
Collier, 217 Md. 93, 100, 141 A. 2d 908, 911
(1958);
Dillon v.
Fiorina, 340 F. Supp., at 731;
Exon v.
Tiemann, 279 F. Supp. 609,613 (Neb. 1968);
State ex rel. Chavez v.
Evans, 79 N. M. 578, 581, 446
P. 2d 445, 448 (1968)
(per curiam), loyalty oath
requirements, see,
e. g., Shub v.
Simpson, 196 Md.
177, 199, 76 A. 2d 332, 341, appeal dism'd, 340 U. S. 881 (1950);
In re O'Connor, 173 Misc. 419, 421, 17 N. Y. S. 2d 758, 760
(Super. Ct. 1940), and restrictions on those convicted of felonies,
see,
e. g., Application of Ferguson, 57 Misc. 2d 1041, 1043,
294 N. Y. S. 2d 174, 176 (Super. Ct. 1968);
Danielson v.
Fitzsimmons, 232 Minn., at 151, 44 N. W. 2d, at 486;
State ex rel. Eaton v.
Schmahl, 140 Minn. 219, 220,
167 N. W. 481 (1918)
(per curiam). Prior to
Powell,
the commentators were similarly unanimous. See,
e.
g., 1 W. Blackstone, Commentaries, Appendix 213 (S. Tucker
ed. 1803) ("[T]hese provisions, as they require qualifications
which the constitution does not, may possibly be found to be
nugatory"); 1 Story § 627 (each Member of Congress is "an officer
of the union, deriving his powers and qualifications from the
constitution, and neither created by, dependent upon, nor
controllable by, the states"); 1 J. Kent, Commentaries on American
Law 228, n. a (3d ed. 1836) ("[T]he objections to the existence of
any such power [on the part of the States to add qualifications
are] ... too palpable and weighty to admit of any discussion"); G.
McCrary, American Law of Elections § 322 (4th ed. 1897) ("It is not
competent for any State to add to or in any manner change the
qualifications for a Federal office, as prescribed by the
Constitution or laws of the United States"); T. Cooley, General
Principles of Constitutional Law 268 (2d ed. 1891) ("The
Constitution and laws of the United States determine what shall be
the qualifications for federal offices, and state
800
constitutions and laws can neither add to nor take away from
them"); C. Burdick, Law of the American Constitution 160 (1922)
("It is clearly the intention of the Constitution that all persons
not disqualified by the terms of that instrument should be eligible
to the federal office of Representative");
id., at 165 ("It
is as clear that States have no more right to add to the
constitutional qualifications of Senators than they have to add to
those for Representatives"); Warren 422 ("The elimination of all
power in Congress to fix qualifications clearly left the provisions
of the Constitution itself as the sole source of
qualifications").14 This impressive and uniform body of judicial
decisions and learned commentary indicates that the obstacles
confronting petitioners are formidable indeed.
Petitioners argue that the Constitution contains no express
prohibition against state-added qualifications, and that Amendment
73 is therefore an appropriate exercise of a State's reserved power
to place additional restrictions on the choices that its own voters
may make. We disagree for two independent reasons. First, we
conclude that the power to add qualifications is not within the
"original powers" of the States, and thus is not reserved to the
States by the Tenth Amendment. Second, even if States possessed
some original power in this area, we conclude that the Framers
in-
14 More recently, the commentators have split, with some arguing
that state-imposed term limits are constitutional, see,
e.
g., Gorsuch & Guzman, Will the Gentlemen Please Yield? A
Defense of the Constitutionality of State-Imposed Term Limitation,
20 Hofstra L. Rev. 341 (1991); Hills, A Defense of State
Constitutional Limits on Federal Congressional Terms, 53 U. Pitt.
L. Rev. 97 (1991); Safranek, Term Limitations: Do the Winds of
Change Blow Unconstitutional?, 26 Creighton L. Rev. 321 (1993), and
others arguing that they are not, see,
e. g.,
Lowenstein, Are Congressional Term Limits Constitutional?, 18 Harv.
J. L. & Pub. Policy 1 (1994); Eid & Kolbe, The New
Anti-Federalism: The Constitutionality of State-Imposed Limits on
Congressional Terms of Office, 69 Denver L. Rev. 1 (1992); Comment,
Congressional Term Limits: Unconstitutional by Initiative, 67 Wash.
L. Rev. 415 (1992).
801
tended the Constitution to be the exclusive source of
qualifications for Members of Congress, and that the Framers
thereby "divested" States of any power to add qualifications.
The "plan of the convention" as illuminated by the historical
materials, our opinions, and the text of the Tenth Amendment draws
a basic distinction between the powers of the newly created Federal
Government and the powers retained by the pre-existing sovereign
States. As Chief Justice Marshall explained, "it was neither
necessary nor proper to define the powers retained by the States.
These powers proceed, not from the people of America, but from the
people of the several States; and remain, after the adoption of the
constitution, what they were before, except so far as they may be
abridged by that instrument."
Sturges v.
Crowninshield, 4 Wheat. 122, 193 (1819).
This classic statement by the Chief Justice endorsed Hamilton's
reasoning in The Federalist No. 32 that the plan of the
Constitutional Convention did not contemplate "[a]n entire
consolidation of the States into one complete national
sovereignty," but only a partial consolidation in which "the State
governments would clearly retain all the rights of sovereignty
which they before had, and which were not, by that act,
exclusively delegated to the United States." The Federalist
No. 32, at 198. The text of the Tenth Amendment unambiguously
confirms this principle:
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."
As we have frequently noted, "[t]he States unquestionably do
retain a significant measure of sovereign authority. They do so,
however,
only to the extent that the Constitution has not
divested them of their original powers and transferred those
powers to the Federal Government."
Garcia v.
San Antonio
Metropolitan Transit Authority, 469 U. S. 528, 549 (1985)
(internal quotation marks and citation omitted) (em-
802
phasis added); see also
New York v.
United States,
505 U. S. 144,
155-156 (1992).
Source of the Power
Contrary to petitioners' assertions, the power to add
qualifications is not part of the original powers of sovereignty
that the Tenth Amendment reserved to the States. Petitioners' Tenth
Amendment argument misconceives the nature of the right at issue
because that Amendment could only "reserve" that which existed
before. 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." 1 Story § 627.
Justice Story's position thus echoes that of Chief Justice
Marshall in
McCulloch v.
Maryland, 4 Wheat. 316
(1819). In
McCulloch, the Court rejected the argument that
the Constitution's silence on the subject of state power to tax
corporations chartered by Congress implies that the States have
"reserved" power to tax such federal instrumentalities. As Chief
Justice Marshall pointed out, an "original right to tax" such
federal entities "never existed, and the question whether it has
been surrendered, cannot arise."
Id., at 430. See also
Crandall v.
Nevada, 6 Wall. 35, 46 (1868). In
language that presaged Justice Story's argument, Chief Justice
Marshall concluded: "This opinion does not deprive the States of
any resources which they originally possessed." 4 Wheat., at
436.15
15Thus, contrary to the dissent's suggestion,
post, at
856-857, Justice Story was not the first, only, or even most
influential proponent of the principle that certain powers are not
reserved to the States despite constitutional silence. Instead, as
Chief Justice Marshall's opinion in
McCulloch reveals, that
principle has been a part of our jurisprudence for over 175
years.
803
With respect to setting qualifications for service in Congress,
no such right existed before the Constitution was ratified. The
contrary argument overlooks the revolutionary character of the
Government that the Framers conceived. Prior to the adoption of the
Constitution, the States had joined together under the Articles of
Confederation. In that system, "the States retained most of their
sovereignty, like independent nations bound together only by
treaties."
Wesberry v.
Sanders, 376 U. S. 1, 9 (1964).
After the Constitutional Convention convened, the Framers were
presented with, and eventually adopted a variation of, "a plan not
merely to amend the Articles of Confederation but to create an
entirely new National Government with a National Executive,
National Judiciary, and a National Legislature."
Id., at 10.
In adopting that plan, the Framers envisioned a uniform national
system, rejecting the notion that the Nation was a collection of
States, and instead creating a direct link between the National
Government and the people of the United States. See,
e. g.,
FERC v.
Mississippi, 456 U. S. 742,791 (1982)
(O'CONNOR, J., concurring in judgment in part and dissenting in
part) ("The Constitution ... permitt[ed] direct contact between the
National Government and the individual citizen"). In that National
Government, representatives owe primary allegiance not to the
people of a State, but to the people of the Nation. As Justice
Story observed, each Member of Congress is "an officer of the
union, deriving his powers and qualifications from the
constitution, and neither created by, dependent upon, nor
controllable by, the states .... Those officers owe their existence
and functions to the united voice of the whole, not of a portion,
of the people." 1 Story § 627. Representatives and Senators are as
much officers of the entire Union as is the President. States thus
"have just as much right, and no more, to prescribe new
qualifications for a representative, as they have for a president
.... It is no original prerogative of state
804
power to appoint a representative, a senator, or president for
the union."
Ibid.16
We believe that the Constitution reflects the Framers' general
agreement with the approach later articulated by Justice Story. For
example, Art. I, § 5, cl. 1, provides: "Each House shall be the
Judge of the Elections, Returns and Qualifications of its own
Members." The text of the Constitution thus gives the
representatives of all the people the final say in judging the
qualifications of the representatives of any one State. For this
reason, the dissent falters when it states that "the people of
Georgia have no say over whom the people of Massachusetts select to
represent them in Congress."
Post, at 859.
Two other sections of the Constitution further support our view
of the Framers' vision. First, consistent with Story's view, the
Constitution provides that the salaries of representatives should
"be ascertained by Law, and paid out of the Treasury of the United
States," Art. I, § 6, rather than by individual States. The salary
provisions reflect the view that representatives owe their
allegiance to the people, and not to the States. Second, the
provisions governing elections reveal the Framers' understanding
that powers over the election of federal officers had to be
delegated to, rather than reserved by, the States. It is surely no
coincidence that the context of federal elections provides one of
the few areas in which the Constitution expressly requires action
by the States, namely that "[t]he Times, Places and Manner of
holding Elections for Senators and Representatives, shall be
16 The Constitution's provision for election of Senators by the
state legislatures, see Art. I, § 3, cl. 1, is entirely consistent
with this view. The power of state legislatures to elect Senators
comes from an express delegation of power from the Constitution,
and thus was not at all based on some aspect of original state
power. Of course, with the adoption of the Seventeenth Amendment,
state power over the election of Senators was eliminated, and
Senators, like Representatives, were elected directly by the
people.
805
prescribed in each State by the Legislature thereof." Art. I, §
4, cl. 1. This duty parallels the duty under Article II that "Each
State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors." Art. II, § 1, cl. 2. These Clauses
are express delegations of power to the States to act with respect
to federal elections.17
This conclusion is consistent with our previous recognition
that, in certain limited contexts, the power to regulate the
incidents of the federal system is not a reserved power of the
States, but rather is delegated by the Constitution. Thus, we have
noted that "[w]hile, in a loose sense, the right to vote for
representatives in Congress is sometimes spoken of as a right
derived from the states, ... this statement is true only in the
sense that the states are authorized by the Constitution, to
legislate on the subject as provided by § 2 of Art. 1."
United
States v.
Classic, 313 U. S. 299, 315
(1941). Cf.
Hawke v.
Smith, No.1, 253 U. S. 221, 230 (1920)
("[T]he power to ratify a proposed amendment to the Federal
Constitution has its source in the Federal Constitution. The act of
ratification by the State derives its authority from the Federal
Constitution to which the State and its people have alike
assented").
In short, as the Framers recognized, electing representatives to
the National Legislature was a new right, arising from the
Constitution itself. The Tenth Amendment thus provides no basis for
concluding that the States possess reserved power to add
qualifications to those that are fixed in the Constitution.
Instead, any state power to set the qualifications for membership
in Congress must derive not from the reserved powers of state
sovereignty, but rather from the delegated powers of national
sovereignty. In the absence of any constitutional delegation to the
States of power to add qualifications to those enumerated in the
Constitution, such a power does not exist.
17The Clauses also reflect the idea that the Constitution treats
both the President and Members of Congress as federal officers.
806
The Preclusion of State Power
Even if we believed that States possessed as part of their
original powers some control over congressional qualifications, the
text and structure of the Constitution, the relevant historical
materials, and, most importantly, the "basic principles of our
democratic system" all demonstrate that the Qualifications Clauses
were intended to preclude the States from exercising any such power
and to fix as exclusive the qualifications in the Constitution.
Much of the historical analysis was undertaken by the Court in
Powell. See
supra, at 789-793. There is, however,
additional historical evidence that pertains directly to the power
of the States. That evidence, though perhaps not as extensive as
that reviewed in
Powell, leads unavoidably to the conclusion
that the States lack the power to add qualifications.
The Convention and Ratification Debates
The available affirmative evidence indicates the Framers' intent
that States have no role in the setting of qualifications. In
Federalist Paper No. 52, dealing with the House of Representatives,
Madison addressed the "qualifications of the electors and the
elected." The Federalist No. 52, at 325. Madison first noted the
difficulty in achieving uniformity in the qualifications for
electors, which resulted in the Framers' decision to require only
that the qualifications for federal electors be the same as those
for state electors. Madison argued that such a decision "must be
satisfactory to every State, because it is comfortable to the
standard already established, or which may be established, by the
State itself."
Id., at 326. Madison then explicitly
contrasted the state control over the qualifications of electors
with the lack of state control over the qualifications of the
elected:
"The qualifications of the elected, being less carefully and
properly defined by the State constitutions, and being at the same
time more susceptible of uniformity,
807
have been very properly considered and regulated by the
convention. A representative of the United States must be of the
age of twenty-five years; must have been seven years a citizen of
the United States; must, at the time of his election be an
inhabitant of the State he is to represent; and, during the time of
his service must be in no office under the United States. Under
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 of religious faith."
Ibid.18
18 The dissent places a novel and implausible interpretation on
this paragraph. Consistent with its entire analysis, the dissent
reads Madison as saying that the sole purpose of the Qualifications
Clauses was to set minimum qualifications that would prevent the
States from sending incompetent representatives to Congress; in
other words, Madison viewed the Clauses as preventing the States
from opening the door to this part of the federal service too
widely. See
post, at 900-902.
The text of The Federalist No. 52 belies the dissent's reading.
First, Madison emphasized that "[t]he qualifications of the elected
... [were] more susceptible of uniformity." His emphasis on
uniformity would be quite anomalous if he envisioned that States
would create for their representatives a patchwork of
qualifications. Second, the idea that Madison was in fact concerned
that States would open the doors to national service too widely is
entirely inconsistent with Madison's emphasizing that the
Constitution kept "the door ... 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." The Federalist No. 52, at 326.
Finally the dissent argues that "Madison could not possibly have
been rebuking the States for setting unduly high qualifications for
their representatives in Congress,"
post, at 901, and
suggests that Madison's comments do not reflect "an implicit
criticism of the States for setting unduly high entrance barriers,"
post, at 902. We disagree. Though the dissent attempts to
minimize the extensiveness of state-imposed qualifications by
focusing on the qualifications that States imposed on delegates to
Congress and the age restrictions that they imposed on state
legislators, the dissent neglects to give appropriate attention to
the abundance of property, religious, and other qualifications that
States imposed on state
808
Madison emphasized this same idea in The Federalist No. 57:
"Who are to be the objects of popular choice? Every citizen
whose merit may recommend him to the esteem and confidence of his
country. No qualification of wealth, of birth, of religious
faith, or of civil profession is permitted to fetter the judgment
or disappoint the inclination of the people." The Federalist
No. 57, at 351 (emphasis added).
The provisions in the Constitution governing federal elections
confirm the Framers' intent that States lack power to add
qualifications. The Framers feared that the diverse interests of
the States would undermine the National Legislature, and thus they
adopted provisions intended to minimize the possibility of state
interference with federal elections. For example, to prevent
discrimination against federal electors, the Framers required in
Art. I, § 2, cl. 1, that the qualifications for federal electors be
the same as those for state electors. As Madison noted, allowing
States to differentiate between the qualifications for state and
federal electors "would have rendered too dependent on the State
governments that branch of the federal government which ought to be
dependent on the people alone." The Federalist No. 52, at 326.
Similarly, in Art. I, § 4, cl. 1, though giving the States the
freedom to regulate the "Times, Places and Manner of holding
Elections," the Framers created a safeguard against state abuse by
giving Congress the power to "by Law make or alter such
Regulations." The Convention debates make clear that the Framers'
overriding concern was the potential for States' abuse of the power
to set the
elected officials. As we describe in some detail,
infra,
at 823-826, nearly every State had property qualifications, and
many States had religious qualifications, term limits, or other
qualifications. As Madison surely recognized, without a
constitutional prohibition, these qualifications could be applied
to federal representatives. We cannot read Madison's comments on
the "open door" of the Federal Government as anything but a
rejection of the "unduly high" barriers imposed by States.
809
"Times, Places and Manner" of elections. Madison noted that
"[i]t was impossible to foresee all the abuses that might be made
of the discretionary power." 2 Farrand 240. Gouverneur Morris
feared that "the States might make false returns and then make no
provisions for new elections."
Id., at 241. When Charles
Pinckney and John Rutledge moved to strike the congressional
safeguard, the motion was soundly defeated.
Id., at 240-241.
As Hamilton later noted: "Nothing can be more evident than that an
exclusive power of regulating elections for the national
government, in the hands of the State legislatures, would leave the
existence of the Union entirely at their mercy." The Federalist No.
59, at 363. See also
ibid. (one justification for Times,
Places and Manner Clause is that "[i]f we are in a humor to presume
abuses of power, it is as fair to presume them on the part of the
State governments as on the part of the general government").19
The Framers' discussion of the salary of representatives reveals
similar concerns. When the issue was first raised, Madison argued
that congressional compensation should be fixed in the
Constitution, rather than left to state legislatures, because
otherwise "it would create an improper dependence." 1 Farrand 216.
George Mason agreed, noting
19 The dissent attacks our holding today by arguing that the
Framers' distrust of the States extended only to measures adopted
by "state legislatures," and not to measures adopted by "the people
themselves."
Post, at 889. See also
post, at 889-890
("These delegates presumably did not want
state legislatures
to be able to tell Members of Congress from their State" how to
vote) (emphasis added). The novelty and expansiveness of the
dissent's attack is quite astonishing. We are aware of no case that
would even suggest that the validity of a state law under the
Federal Constitution would depend at all on whether the state law
was passed by the state legislature or by the people directly
through amendment of the state constitution. Indeed, no party has
so argued. Quite simply, in our view, the dissent's distinction
between state legislation passed by the state legislature and
legislation passed by state constitutional amendment is untenable.
The qualifications in the Constitution are fixed, and may not be
altered by either States or their legislatures.
810
that "the parsimony of the States might reduce the provision so
low that ... the question would be not who were most fit to be
chosen, but who were most willing to serve."
Ibid.
When the issue was later reopened, Nathaniel Gorham stated that
he "wished not to refer the matter to the State Legislatures who
were always paring down salaries in such a manner as to keep out of
offices men most capable of executing the functions of them."
Id., at 372. Edmund Randolph agreed that "[i]f the States
were to pay the members of the N at[ional] Legislature, a
dependence would be created that would vitiate the whole System."
Ibid. Rufus King "urged the danger of creating a dependence
on the States,"
ibid., and Hamilton noted that "[t]hose who
pay are the masters of those who are paid,"
id., at 373. The
Convention ultimately agreed to vest in Congress the power to set
its own compensation. See Art. I, § 6.20
In light of the Framers' evident concern that States would try
to undermine the National Government, they could not have intended
States to have the power to set qualifications. Indeed, one of the
more anomalous consequences of petitioners' argument is that it
accepts federal supremacy over the procedural aspects of
determining the times, places, and manner of elections while
allowing the States
carte blanche with respect to the
substantive qualifications for membership in Congress.
The dissent nevertheless contends that the Framers' distrust of
the States with respect to elections does not preclude the people
of the States from adopting eligibility requirements to help narrow
their own choices. See
post, at 888-889. As the dissent
concedes,
post, at 893, however, the Framers were
unquestionably concerned that the States would simply not hold
elections for federal officers, and therefore the Framers gave
Congress the power to "make
20 The Framers' decision to reject a proposal allowing for
States to recall their own representatives, see 1 Farrand 20, 217,
reflects these same concerns.
811
or alter" state election regulations. Yet under the dissent's
approach, the States could achieve exactly the same result by
simply setting qualifications for federal office sufficiently high
that no one could meet those qualifications. In our view, it is
inconceivable that the Framers would provide a specific
constitutional provision to ensure that federal elections would be
held while at the same time allowing States to render those
elections meaningless by simply ensuring that no candidate could be
qualified for office. Given the Framers' wariness over the
potential for state abuse, we must conclude that the specification
of fixed qualifications in the constitutional text was intended to
prescribe uniform rules that would preclude modification by either
Congress or the States.21
We find further evidence of the Framers' intent in Art. I, § 5,
cl. 1, which provides: "Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Members." That
Art. I, § 5, vests a federal tribunal with ultimate authority to
judge a Member's qualifications is fully consistent with the
understanding that those qualifications are fixed in the Federal
Constitution, but not with the understanding that they can be
altered by the States. If the States had the right to prescribe
additional qualifications-
21 The dissent's arguments concerning these provisions of the
Constitution, see
post, at 889-895, simply reinforce our
argument that the constitutional provisions surrounding elections
all reveal the Framers' basic fear that the States might act to
undermine the National Legislature. For example, as the dissent
concedes, the Framers feared that States would use the control over
salaries to influence the votes of their representative. See
post, at 889-890. Similarly, the dissent concedes that the
Times, Places and Manner Clause reflects the Framers' fear that
States would not conduct federal elections at all. See
post,
at 894. We believe that the dissent's reading of the provisions at
issue understates considerably the extent of the Framers' distrust.
However, even under the dissent's reading of the provisions, the
text of the Constitution unquestionably reveals the Framers'
distrust of the States regarding elections, and thus provides
powerful evidence supporting our view that the qualifications
established in the Constitution are exclusive.
812
such as property, educational, or professional qualificationsfor
their own representatives, state law would provide the standard for
judging a Member's eligibility. As we concluded in
Murdock
v.
Memphis, 20 Wall. 590 (1875), federal questions are
generally answered finally by federal tribunals because rights
which depend on federal law "should be the same everywhere" and
"their construction should be uniform."
Id., at 632. The
judging of questions concerning rights which depend on state law is
not, however, normally assigned to federal tribunals. See
id., at 636. The Constitution's provision for each House to
be the judge of its own qualifications thus provides further
evidence that the Framers believed that the primary source of those
qualifications would be federal law.
We also find compelling the complete absence in the ratification
debates of any assertion that States had the power to add
qualifications. In those debates, the question whether to require
term limits, or "rotation," was a major source of controversy. The
draft of the Constitution that was submitted for ratification
contained no provision for rotation.22 In arguments that echo in
the preamble to Arkansas' Amendment 73, opponents of ratification
condemned the absence of a rotation requirement, noting that "there
is no doubt that senators will hold their office perpetually; and
in this situation, they must of necessity lose their dependence,
and their attachments to the people." 23 Even proponents of
ratifica-
22 A proposal requiring rotation for Members of the House was
proposed at the Convention, see 1 Farrand 20, but was defeated
unanimously, see
id., at 217. There is no record of any
debate on either occasion.
232 Elliot's Debates 309-310 (N. Y., Smith). See also
id., at 287-288 (N. Y., G. Livingston) (Senators will enjoy
"a security of their re-election, as long as they please .... In
such a situation, men are apt to forget their dependence, lose
their sympathy, and contract selfish habits .... The senators will
associate only with men of their own class, and thus become
strangers to the condition of the common people");
id., at
30-31 (Mass., Turner) ("Knowing the numerous arts that designing
men are prone to, to secure their election, and perpetuate
themselves, it is my hearty wish that
813
tion expressed concern about the "abandonment in every instance
of the necessity of rotation in office." 24 At several ratification
conventions, participants proposed amendments that would have
required rotation.25
The Federalists' responses to those criticisms and proposals
addressed the merits of the issue, arguing that rotation was
incompatible with the people's right to choose. As we noted above,
Robert Livingston argued:
a rotation may be provided for");
id., at 62 (Mass.,
Kingsley) ("[W]e are deprived of annual elections, have no
rotation, and cannot recall our members; therefore our federal
rulers will be masters, and not servants"); Samuel Bryan, "Centinel
I," Independent Gazetteer (Phil., Oct. 5, 1787), 1 Debate on the
Constitution 52, 61 (B. Bailyn ed. 1990) (hereinafter Bailyn)
("[A]s there is no exclusion by rotation, [Senators] may be
continued for life, which, from their extensive means of influence,
would follow of course"); Letter from George Lee Turberville to
Madison (Dec. 11, 1787), 1 Bailyn 477, 479 ("Why was not that
truely republican mode of forcing the Rulers or sovereigns of the
states to mix after stated Periods with the people
again-observed"); Mercy Otis Warren, "A Columbian Patriot" (Boston,
Feb. 1788), 2 Bailyn 284, 292 ("There is no provision for a
rotation, nor any thing to prevent the perpetuity of office in the
same hands for life .... By this neglect we lose the advantages of
that check to the overbearing insolence of office, which by
rendering him ineligible at certain periods, keeps the mind of man
in equilibrio, and teaches him the feelings of the governed").
24 Letter of Dec. 20, 1787, from Thomas Jefferson to James
Madison. 1
id., at 209, 211. In 1814, in another private
letter, Jefferson expressed the opinion that the States had not
abandoned the power to impose term limits. See Letter of Jan. 31,
1814, to Joseph C. Cabell, in 14 Writings of Thomas Jefferson 82
(A. Lipscomb ed. 1904). Though he noted that his reasoning on the
matter "appears to me to be sound," he went on to note:
"but, on so recent a change of view, caution requires us not to
be too confident, and that we admit this to be one of the doubtful
questions on which honest men may differ with the purest of
motives; and the more readily, as we find we have differed from
ourselves on it."
Id., at 83. The text of Jefferson's
response clearly belies the dissent's suggestion that Jefferson
"himself did not entertain serious doubts of its correctness."
Post, at 874, n. 14.
25 See n. 40,
infra.
814
"The people are the best judges who ought to represent them. To
dictate and control them, to tell them whom they shall not elect,
is to abridge their natural rights. This rotation is an absurd
species of ostracism." 2 Elliot's Debates 292-293.
Similarly, Hamilton argued that the representatives' need for
reelection rather than mandatory rotation was the more effective
way to keep representatives responsive to the people, because
"[w]hen a man knows he must quit his station, let his merit be what
it may, he will turn his attention chiefly to his own emolument."
Id., at 320.26
Regardless of which side has the better of the debate over
rotation, it is most striking that nowhere in the extensive
ratification debates have we found any statement by either a
proponent or an opponent of rotation that the draft constitution
would permit States to require rotation for the representatives of
their own citizens. If the participants in the debate had believed
that the States retained the authority to impose term limits, it is
inconceivable that the Federalists would not have made this obvious
response to the arguments of the pro-rotation forces. The absence
in an otherwise freewheeling debate of any suggestion that States
had the power to impose additional qualifications unquestionably
reflects the Framers' common understanding that States lacked that
power.
In short, if it had been assumed that States could add
additional qualifications, that assumption would have provided the
basis for a powerful rebuttal to the arguments being advanced. The
failure of intelligent and experienced advocates to utilize this
argument must reflect a general agree-
26 George Washington made a similar argument:
"The power under the Constitution will always be in the People.
It is entrusted for certain defined purposes, and for a certain
limited period, to representatives of their own chusing; and
whenever it is executed contrary to their Interest, or not
agreeable to their wishes, their Servants can, and undoubtedly will
be, recalled." 1 Bailyn 305, 306-307.
815
ment that its premise was unsound, and that the power to add
qualifications was one that the Constitution denied the
States.27
27 Petitioners set forth several other arguments to support
their contention that the Convention and ratification debates
reveal that the qualifications in the Qualifications Clauses were
not intended to be exclusive. We find none of these persuasive.
Petitioners first observe that the notes of Edmund Randolph, who
was a member of the Committee of Detail, reveal that an early draft
of the Qualifications Clause provided:
"The qualifications of (a) delegates shall be the age of
twenty-five years at least. and citizenship: (and any person
possessing these qualifications may be elected except)." 2 Farrand
139 (footnote omitted).
Petitioners suggest that the deletion of the parenthetical
material from the Clause suggests that the Framers did not intend
the Qualifications Clause to be exclusive. We reject this argument.
First, there is no evidence that the draft in Randolph's notes was
ever presented to the Convention, and thus the deletion of the
Clause tells us little about the views of the Convention as a
whole. Moreover, even assuming that the Convention had seen the
draft, the deletion of the language without comment is at least as
consistent with a belief-as suggested by Dickinson, see n. 9,
supra-that the language was superfluous as with a concern
that the language was inappropriate. Finally, contrary to the
rather ingenious argument advanced in the dissent, see
post,
at 887-888, it seems to us irrelevant that the draft in question
did not include a comparable parenthetical clause referring to
"elected" Senators because the draft contemplated that Senators,
unlike Representatives, would not be chosen by popular
election.
Nor is there merit to the argument that the inclusion in the
Committee's final draft of a provision allowing each House to add
property qualifications, see 2 Farrand 179, is somehow inconsistent
with our holding today. First, there is no conflict between our
holding that the qualifications for Congress are fixed in the
Constitution and a provision in the Constitution itself providing
for property qualifications. Indeed, that is why our analysis is
consistent with the other disqualifications contained in the
Constitution itself. See n. 2,
supra. The Constitution
simply prohibits the imposition by either States or Congress of
additional qualifications that are not contained in the text of the
Constitution. Second, of course, the property provision was
deleted, thus providing further evidence that the Framers wanted to
minimize the barriers that would exclude the most able citizens
from service in the National Government.
Respondent Republican Party of Arkansas also argues that the
negative phrasing of the Qualifications Clauses suggests that they
were not meant
816
Congressional Experience
Congress' subsequent experience with state-imposed
qualifications provides further evidence of the general consensus
on the lack of state power in this area. In
Powell, we
examined that experience and noted that during the first 100 years
of its existence, "Congress strictly limited its power to judge the
qualifications of its members to those enumerated in the
Constitution." 395 U. S., at 542. Congress first confronted the
issue in 1807 when it faced a challenge to the qualifications of
William McCreery, a Representative from Maryland who allegedly did
not satisfy a residency requirement imposed by that State. In
recommending that McCreery be seated, the Report of the House
Committee on Elections noted:
"'The committee proceeded to examine the Constitution, with
relation to the case submitted to them, and find that
qualifications of members are therein determined, without
reserving any authority to the State Legislatures to change, add
to, or diminish those qualifications; and that, by that
instrument, Congress is constituted the sole judge of the
qualifications prescribed by it, and are obliged to decide
agreeably to the Constitutional rules .... '" Powell, 395 U.
S., at 542, quoting 17 Annals of Congo 871 (1807) (emphasis
added).28
The Chairman of the House Committee on Elections elaborated
during debate:
to be exclusive. Brief for Respondents Republican Party of
Arkansas et al. 5-6. This argument was firmly rejected in
Powell, see 395 U. S., at 537-539, and n. 73; see also
Warren 422, n. 1, and we see no need to revisit it now.
28We recognize that the "Committee of Elections were not
unanimous in these sentiments," and that a "minority advocated the
right of the State Legislature to prescribe additional
qualifications to the members from the respective States." 17
Annals of Congo 873 (1807).
817
"'The Committee of Elections considered the qualifications of
members to have been unalterably determined by the Federal
Convention, unless changed by an authority equal to that which
framed the Constitution at first; that neither the State nor the
Federal Legislatures are vested with authority to add to those
qualifications, so as to change them.'" Powell, 395 U. S.,
at 542-543, quoting from 17 Annals of Congo 872 (1807).
As we noted in
Powell, the congressional debate over the
committee's recommendation tended to focus on the "narrow issue of
the power of the States to add to the standing qualifications set
forth in the Constitution," 395 U. S., at 543. The whole House,
however, did not vote on the committee's Report, and instead voted
only on a simple resolution:
"Resolved, That William
McCreery is entitled to his seat in this House." 17 Annals of Congo
1238 (1807). That resolution passed by a vote of 89 to 18.
Ibid.
Though the House Debate may be inconclusive, commentators at the
time apparently viewed the seating of McCreery as confirmation of
the States' lack of power to add qualifications. For example, in a
letter to Joseph Cabell, Thomas Jefferson noted the argument that
"to add new qualifications to those of the Constitution would be as
much an alteration as to detract from them"; he then added: "And so
I think the House of Representatives of Congress decided in some
case; I believe that of a member from Baltimore." Letter of Jan.
31, 1814, to Joseph C. Cabell, in 14 Writings of Thomas Jefferson
82 (A. Lipscomb ed. 1904).
Similarly, for over 150 years prior to
Powell,
commentators viewed the seating of McCreery as an expression of the
view of the House that States could not add to the qualifications
established in the Constitution. Thus, for example, referring to
the McCreery debates, one commentator noted, "By the decision in
this case, [and that in another contested election],
it seems to
have been settled that the States have not a right to require
qualifications from members, different
818
from, or in addition to, those prescribed by the constitution."
Cases of Contested Elections in Congress 171 (M. Clarke & D.
Hall eds. 1834) (emphasis in original). Other commentators viewed
the incident similarly. See,
e. g., G. Paschal, The
Constitution of the United States 66 (1876) (citing McCreery to
support the proposition that "[t]he Constitution having fixed the
qualifications of members, no
additional qualifications can
rightfully be required by the States") (emphasis in original); G.
McCrary, American Law of Elections § 323 (4th ed. 1897) (citing
McCreery and stating "A state law requiring that a Representative
in Congress shall reside in a particular town and country within
the district from which he is chosen is unconstitutional and
void"); W. Sutherland, Notes on the Constitution of the United
States 40 (1904) (citing McCreery to support statement that "[t]his
clause fixes the qualifications of members so far as state action
is concerned, and no additional qualifications can be required by
the state"); C. Burdick, Law of the American Constitution 160
(1922) (citing McCreery to support the proposition that
state-imposed "limitations have been held ... not to be
effective"). Finally, it is clear that in
Powell we viewed
the seating of McCreery as the House's acknowledgment that the
qualifications in the Constitution were fixed. See 395 U. S., at
542-543.
The Senate experience with state-imposed qualifications further
supports our conclusions. In 1887, for example, the Senate seated
Charles Faulkner of West Virginia, despite the fact that a
provision of the West Virginia Constitution purported to render him
ineligible to serve. The Senate Committee on Privileges and
Elections unanimously concluded that "no State can prescribe any
qualification to the office of United States Senator in addition to
those declared in the Constitution of the United States." S. Rep.
No.1, 50th Cong., 1st Sess., 4 (1887). The Senate Committee on
Rules and Administration reached the same conclusion in 1964 when
faced with a challenge to Pierre Salinger, who had
819
been appointed to serve as Senator from California. See S. Rep.
No. 1381, 88th Cong., 2d Sess., 5 ("It is well settled that the
qualifications established by the U. S. Constitution for the office
of U. S. Senator are exclusive, and a State cannot, by
constitutional or statutory provisions, add to or enlarge upon
those qualifications").
We recognize, as we did in
Powell, that "congressional
practice has been erratic" 29 and that the precedential value of
congressional exclusion cases is "quite limited."
Powell,
395 U. S., at 545-546. Nevertheless, those incidents lend support
to the result we reach today.
Democratic Principles
Our conclusion that States lack the power to impose
qualifications vindicates the same "fundamental principle of our
representative democracy" that we recognized in
Powell,
namely, that "the people should choose whom they please to govern
them."
Id., at 547 (internal quotation marks omitted).
As we noted earlier, the
Powell Court recognized that an
egalitarian ideal-that election to the National Legislature should
be open to all people of merit-provided a critical foundation for
the constitutional structure. This egalitarian theme echoes
throughout the constitutional debates. In The Federalist No. 57,
for example, Madison wrote:
"Who are to be the objects of popular choice? Every citizen
whose merit may recommend him to the esteem and confidence of his
country. No qualification of wealth, of birth, of religious faith,
or of civil profession is permitted to fetter the judgment or
disappoint the inclination of the people." The Federalist No. 57,
at 351.
Similarly, hoping to persuade voters in New York that the
Constitution should be ratified, John Stevens, Jr., wrote:
29 See,
e. g., Powell, 395 U. S., at
544-546 (noting examples).
820
"[N]o Government, that has ever yet existed in the world,
affords so ample a field, to individuals of all ranks, for the
display of political talents and abilities .... No man who has real
merit, let his situation be what it will, need despair." 1 Bailyn
487, 492. And Timothy Pickering noted that, "while several of the
state constitutions prescribe certain degrees of property as
indispensable qualifications for offices, this which is proposed
for the U. S. throws the door wide open for the entrance of
every man who enjoys the confidence of his fellow citizens."
Letter from T. Pickering to C. Tillinghast (Dec. 24, 1787), 1
Bailyn 289, 290 (emphasis in original).30 Additional qualifications
pose the same obstacle to open elections whatever their source. The
egalitarian ideal, so valued by the Framers, is thus compromised to
the same degree by additional qualifications imposed by States as
by those imposed by Congress.
Similarly, we believe that state-imposed qualifications, as much
as congressionally imposed qualifications, would undermine the
second critical idea recognized in
Powell: that an aspect of
sovereignty is the right of the people to vote for whom they wish.
Again, the source of the qualification is of little moment in
assessing the qualification's restrictive impact.
Finally, state-imposed restrictions, unlike the congressionally
imposed restrictions at issue in
Powell, violate a third
idea central to this basic principle: that the right to choose
30 See also 2 Farrand 123 (it is "improper that any man of merit
should be subjected to disabilities in a Republic where merit was
understood to form the great title to public trust, honors &
rewards") (Dickinson); The Federalist No. 36, at 217 ("There are
strong minds in every walk of life that will rise superior to the
disadvantages of situation and will command the tribute due to
their merit, not only from the classes to which they particularly
belong, but from the society in general. The door ought to be
equally open to all") (Hamilton); N. Webster, "A Citizen of
America," (Phil., Oct. 17,1787),1 Bailyn 129, 142 ("[M]oney is not
made a requisitethe places of senators are wisely left open to all
persons of suitable age and merit").
821
representatives belongs not to the States, but to the people.
From the start, the Framers recognized that the "great and radical
vice" of the Articles of Confederation was "the principle of
LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or
COLLECTIVE CAPACITIES, and as contradistinguished from the
INDIVIDUALS of whom they consist." The Federalist No. 15, at 108
(Hamilton). Thus the Framers, in perhaps their most important
contribution, conceived of a Federal Government directly
responsible to the people, possessed of direct power over the
people, and chosen directly, not by States, but by the people. See,
e. g., supra, at 802-804. The Framers
implemented this ideal most clearly in the provision, extant from
the beginning of the Republic, that calls for the Members of the
House of Representatives to be "chosen every second Year by the
People of the several States." Art. I, § 2, cl. 1. Following the
adoption of the Seventeenth Amendment in 1913, this ideal was
extended to elections for the Senate. The Congress of the United
States, therefore, is not a confederation of nations in which
separate sovereigns are represented by appointed delegates, but is
instead a body composed of representatives of the people. As Chief
Justice John Marshall observed:
"The government of the Union, then, ... is, emphatically, and
truly, a government of the people. In form and in substance it
emanates from them. Its powers are granted by them, and are to be
exercised directly on them, and for their benefit."
McCulloch v.
Maryland, 4 Wheat., at 404-405.31 Ours
is a "government of the people, by the people, for the people." A.
Lincoln, Gettysburg Address (1863).
31 Cf.
Hawke v.
Smith (No.1), 253 U. S. 221, 226 (1920)
("The Constitution of the United States was ordained by the people,
and, when duly ratified, it became the Constitution of the people
of the United States"). Compare U. S. Const., Preamble ("We the
People"), with The Articles of Confederation, reprinted in 2 Bailyn
926 ("we the under signed Delegates of the States").
822
The Framers deemed this principle critical when they discussed
qualifications. For example, during the debates on residency
requirements, Morris noted that in the House,
"the people at
large, not the
States, are represented." 2 Farrand 217
(emphasis in original) (footnote omitted). Similarly, George Read
noted that the Framers "were forming a
Nati[ona]l
Gov[ernmen]t and such a regulation would correspond little with the
idea that we were one people."
Ibid. (emphasis in original).
James Wilson "enforced the same consideration."
Ibid.
Consistent with these views, the constitutional structure
provides for a uniform salary to be paid from the national
treasury, allows the States but a limited role in federal
elections, and maintains strict checks on state interference with
the federal election process. The Constitution also provides that
the qualifications of the representatives of each State will be
judged by the representatives of the entire Nation. The
Constitution thus creates a uniform national body representing the
interests of a single people.
Permitting individual States to formulate diverse qualifications
for their representatives would result in a patchwork of state
qualifications, undermining the uniformity and the national
character that the Framers envisioned and sought to ensure. Cf.
McCulloch v.
Maryland, 4 Wheat., at 428429 ("Those
means are not given by the people of a particular State, not given
by the constituents of the legislature, ... but by the people of
all the States. They are given by all, for the benefit of all-and
upon theory, should be subjected to that government only which
belongs to all"). Such a patchwork would also sever the direct link
that the Framers found so critical between the National Government
and the people of the United States.32
32 There is little significance to the fact that Amendment 73
was adopted by a popular vote, rather than as an Act of the state
legislature. See n. 19,
supra. In fact, none of the
petitioners argues that the constitutionality of a state law would
depend on the method of its adoption. This is proper,
823
State Practice
Petitioners attempt to overcome this formidable array of
evidence against the States' power to impose qualifications by
arguing that the practice of the States immediately after the
adoption of the Constitution demonstrates their understanding that
they possessed such power. One may properly question the extent to
which the States' own practice is a reliable indicator of the
contours of restrictions that the Constitution imposed on States,
especially when no court has ever upheld a state-imposed
qualification of any sort. See
supra, at 798-799. But
petitioners' argument is unpersuasive even on its own terms. At the
time of the Convention, "[a]lmost all the State Constitutions
required members of their Legislatures to possess considerable
property." See Warren 416-417.33 Despite this near uniformity, only
one
because the voters of Arkansas, in adopting Amendment 73, were
acting as citizens of the State of Arkansas, and not as citizens of
the National Government. The people of the State of Arkansas have
no more power than does the Arkansas Legislature to supplement the
qualifications for service in Congress. As Chief Justice Marshall
emphasized in
McCulloch, "Those means are not given
by the people of a particular State, not given by the constituents
of the legislature, ... but by the people of all the States." 4
Wheat., at 428-429.
The dissent concedes that the people of the Nation have an
interest in preventing any State from sending "immature, disloyal,
or unknowledgeable representatives to Congress,"
post, at
869, but does not explain why the people of the Nation lack a
comparable interest in allowing every State to send mature, loyal,
and knowledgeable representatives to Congress. In our view, the
interest possessed by the people of the Nation and identified by
the dissent is the same as the people's interest in making sure
that, within "reasonable limitations, the door to 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." The Federalist No. 52, at 326.
33 See,
e. g., 7 Federal and State Constitutions,
Colonial Charters, and Other Organic Laws of the States,
Territories, and Colonies 3816 (F. Thorpe ed. 1909) (hereinafter
Thorpe) (Virginia) (members of state legislature must be
freeholders); 4
id., at 2460, 2461 (New Hampshire)
(freehold
824
State, Virginia, placed similar restrictions on Members of
Congress, requiring that a representative be,
inter alia, a
"freeholder." See 1788 Va. Acts, ch. 2, § 2.34 Just 15 years after
imposing a property qualification, Virginia replaced that
requirement with a provision requiring that representatives be only
"qualified according to the constitution of the United States."
1813 Va. Acts, ch. 23, § 2. Moreover, several States, including New
Hampshire, Georgia, Delaware, and South Carolina, revised their
Constitutions at around the time of the Federal Constitution. In
the revised Constitutions, each State retained property
qualifications for its own
estate of 200 pounds for state senators; estate of 100 pounds,
at least half of which is freehold, for state representatives); 3
id., at 1691, 1694 (Maryland) (real and personal property of
over 500 pounds for House of Delegates; real and personal property
of 1,000 pounds for Senate);
id., at 1897, 1898 (freehold
estate of 300 pounds or personal estate of 600 pounds for state
senators; freehold estate of 100 pounds or ratable estate of 200
pounds for state representatives); 1
id., at 562 (Delaware)
(state legislators must be freeholders); 5
id., at 2595 (New
Jersey) (members of Legislative Council must be freeholders and
must have real and personal property of 1,000 pounds; members of
Assembly must have real and personal property of 500 pounds);
id., at 2631 (New York) (state senators must be
freeholders);
id., at 2790 (North Carolina) (100 acres of
land for House; 300 acres of land in Senate); 2
id., at 779
(Georgia) (150 acres of land or property of 250 pounds); 6
id., at 3251 (South Carolina) (freehold estate of 2,000
pounds for state senate).
34 Judge Tucker expressed doubt about the constitutionality of
the provisions of the Virginia statute, noting that "these
provisions, as they require qualifications which the constitution
does not, may possibly be found to be nugatory." 1 W. Blackstone,
Commentaries Appendix 213 (S. Tucker ed. 1803). Judge Tucker noted
the two primary arguments against the power to add such a
qualification:
"First, that in a representative government, the people have an
undoubted right to judge for themselves of the qualification of
their delegate, and if their opinion of the integrity of their
representative will supply the want of estate, there can be no
reason for the government to interfere, by saying, that the latter
must and shall overbalance the former.
"Secondly; by requiring a qualification in estate it may often
happen, that men the best qualified in other respects might be
incapacitated from serving their country."
Ibid.
825
state elected officials yet placed no property qualification on
its congressional representatives.35
The contemporaneous state practice with respect to term limits
is similar. At the time of the Convention, States widely supported
term limits in at least some circumstances. The Articles of
Confederation contained a provision for term limits.36 As we have
noted, some members of the Convention had sought to impose term
limits for Members of Congress.37 In addition, many States imposed
term limits on
35 See 4 Thorpe 2477, 2479 (New Hampshire) (100 pounds for
House; 200 pounds for Senate); 2
id., at 786 (Georgia) (200
acres of land or 150 pounds for House; 250 acres ofland or 250
pounds for Senate); 6
id., at 3259 (South Carolina) (500
acres and 10 slaves or 150 pounds sterling for House; 300 pounds
sterling for Senate); 1
id., at 570, 571 (Delaware)
(freehold for House; freehold estate of 200 acres or real and
personal property of 1,000 pounds for Senate). Pennsylvania amended
its Constitution in 1790. Neither the old constitution nor the
amended one contained property qualifications for state
representatives. See 5
id., at 3084;
id., at
3092-3093.
Several State Constitutions also imposed religious
qualifications on state representatives. For example, New
Hampshire's Constitution of 1784 and its Constitution of 1792
provided that members of the State Senate and House of
Representatives be "of the protestant religion." 4
id., at
2460,2461-2462 (1784 Constitution);
id., at 2477, 2479 (1792
Constitution). North Carolina's Constitution provided that "no
clergyman, or preacher of the gospel, of any denomination, shall be
capable of being a member of either the Senate, House of Commons,
or Council of State," 5
id., at 2793, and that "no person,
who shall deny the being of God or the truth of the Protestant
religion ... shall be capable of holding any office or place of
trust or profit in the civil department within this State,"
ibid. Georgia and South Carolina also had religious
qualifications in their Constitutions for state legislators, see 2
id., at 779 (Georgia) ("of the Protestant religion"); 6
id., at 3252 (South Carolina) (must be "of the Protestant
religion"), but deleted those provisions when they amended their
Constitutions, in 1789, see 2
id., at 785, and in 1790, see
6
id., at 3258, respectively. Article VI of the Federal
Constitution, however, prohibited States from imposing similar
qualifications on federal legislators.
36 See 2 Bailyn 926, 927 ("[N]o person shall be capable of being
a delegate for more than three years in any term of six
years").
37 See 1 Farrand 20 ("Res[olved] that the members of the first
branch of the National Legislature ought ... to be incapable of
re-election for the
826
state officers,38 four placed limits on delegates to the
Continental Congress,39 and several States voiced support for term
limits for Members of Congress.40 Despite this widespread support,
no State sought to impose any term limits on its own federal
representatives. Thus, a proper assessment of contemporaneous state
practice provides further persuasive evidence of a general
understanding that the qualifications in the Constitution were
unalterable by the States.41
space of [blank] after the expiration of their term of
service"). See also
38 See,
e. g., G. Wood, Creation of the American
Republic, 1776-1787, p. 140 (1969) (noting that 7 of the 10 State
Constitutions drafted in 17761777 provided for term limits on their
state executives); see also App. to Brief for State Petitioner
1b-34b (describing provisions of State Constitutions).
393 Thorpe 1695-1697 (Maryland); 4
id., at 2467 (New
Hampshire); 5
id., at 3085 ((Pennsylvania); 5
id., at
2793 (North Carolina).
40 New York attached to its ratification a list of proposed
amendments and "enjoin[ed] it upon their representatives in
Congress to exert all their influence, and use all reasonable
means, to obtain a ratification." 1 Elliot's Debates 329. One of
the proposed amendments was "That no person be eligible as a
senator for more than six years in any term of twelve years."
Id., at 330. In Virginia, the Convention similarly
"enjoin[ed] it upon their representatives," 2 Bailyn 564, to adopt
"a Declaration or Bill of Rights,"
id., at 558, which would
include the statement that members of the Executive and Legislative
Branches "should at fixed periods be reduced to a private station,
return into the mass of the people; and the vacancies be supplied
by certain and regular elections; in which all or any part of the
former members to be eligible or ineligible, as the rules of the
Constitution of Government, and the laws shall direct,"
id.,
at 559. The North Carolina Convention proposed nearly identical
language, see
id., at 566, though that Convention ultimately
did not ratify the Constitution, see 4 Elliot's Debates 250-251.
Thus, at least three States proposed some form of constitutional
amendment supporting term limits for Members of Congress.
41 Petitioners and the dissent also point out that Georgia,
Maryland, Massachusetts, Virginia, and North Carolina added
district residency requirements, and petitioners note that New
Jersey and Connecticut established nominating processes for
congressional candidates. They rely on
827
In sum, the 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.
these facts to show that the States believed they had the power
to add qualifications. We again are unpersuaded. First,
establishing a nominating process is no more setting a
qualification for office than is creating a primary. Second, it
seems to us that States may simply have viewed district residency
requirements as the necessary analog to state residency
requirements. Thus, state practice with respect to residency
requirements does not necessarily indicate that States believed
that they had a broad power to add restrictions. Finally, we
consider the number of state-imposed qualifications to be
remarkably small. Despite the array of property, religious, and
other qualifications that were contained in State Constitutions,
petitioners and the dissent can point to only one instance of a
state-imposed property qualification on candidates for Congress,
and five instances of district residency requirements. The state
practice seems to us notable for its restraint, and thus supports
the conclusion that States did not believe that they generally had
the power to add qualifications.
Nor are we persuaded by the more recent state practice involving
qualifications such as those that bar felons from being elected. As
we have noted, the practice of States is a poor indicator of the
effect of restraints on the States, and no court has ever upheld
one of these restrictions. Moreover, as one moves away from 1789,
it seems to us that state practice is even less indicative of the
Framers' understanding of state power.
Finally, it is important to reemphasize that the dissent simply
has no credible explanation as to why almost every State imposed
property qualifications on state representatives but not on federal
representatives. The dissent relies first on the obvious but
seemingly irrelevant proposition that the state legislatures were
larger than state congressional delegations.
Post, at
913-914, n. 37. If anything, the smaller size of the congressional
delegation would have made States
more likely to put
qualifications on federal representatives since the election of any
"pauper" would have had proportionally greater significance. The
dissent also suggests that States failed to add qualifications out
of fear that others,
e. g., Congress, believed that
States lacked the power to add such qualifications. Of course, this
rationale is perfectly consistent with our view that the general
understanding at the time was that States lacked the power to add
qualifications.
828
IV
Petitioners argue that, even if States may not add
qualifications, Amendment 73 is constitutional because it is not
such a qualification, and because Amendment 73 is a permissible
exercise of state power to regulate the "Times, Places and Manner
of holding Elections." We reject these contentions.
Unlike §§ 1 and 2 of Amendment 73, which create absolute bars to
service for long-term incumbents running for state office, § 3
merely provides that certain Senators and Representatives shall not
be certified as candidates and shall not have their names appear on
the ballot. They may run as write-in candidates and, if elected,
they may serve. Petitioners contend that only a legal bar to
service creates an impermissible qualification, and that Amendment
73 is therefore consistent with the Constitution.
Petitioners support their restrictive definition of
qualifications with language from
Storer v.
Brown,
415 U. S. 724
(1974), in which we faced a constitutional challenge to provisions
of the California Elections Code that regulated the procedures by
which both independent candidates and candidates affiliated with
qualified political parties could obtain ballot position in general
elections. The code required candidates affiliated with a qualified
party to win a primary election, and required independents to make
timely filing of nomination papers signed by at least 5% of the
entire vote cast in the last general election. The code also denied
ballot position to independents who had voted in the most recent
primary election or who had registered their affiliation with a
qualified party during the previous year.
In
Storer, we rejected the argument that the challenged
procedures created additional qualifications as "wholly without
merit."
Id., at 746, n. 16. We noted that petitioners "would
not have been disqualified had they been nominated at a party
primary or by an adequately supported independent petition and then
elected at the general election."
Ibid.
829
We concluded that the California Code "no more establishes an
additional requirement for the office of Representative than the
requirement that the candidate win the primary to secure a place on
the general ballot or otherwise demonstrate substantial community
support."
Ibid. See also
Joyner v.
Mofford,
706 F. 2d, at 1531;
Hopfmann v.
Connolly, 746 F.2d
97, 103 (CA1 1984), vacated in part on other grounds,
471 U. S. 459 (1985).
Petitioners maintain that, under
Storer, Amendment 73 is not
a qualification.
We need not decide whether petitioners' narrow understanding of
qualifications is correct because, even if it is, Amendment 73 may
not stand. As we have often noted, " '[c]onstitutional rights would
be of little value if they could be ... indirectly denied.'''
Harman v.
Forssenius, 380 U. S. 528, 540
(1965), quoting
Smith v.
Allwright, 321 U. S. 649, 664
(1944). The Constitution "nullifies sophisticated as well as
simple-minded modes" of infringing on constitutional protections.
Lane v.
Wilson, 307 U. S. 268, 275
(1939);
Harman
In our view, Amendment 73 is an indirect attempt to accomplish
what the Constitution prohibits Arkansas from accomplishing
directly. As the plurality opinion of the Arkansas Supreme Court
recognized, Amendment 73 is an "effort to dress eligibility to
stand for Congress in ballot access clothing," because the "intent
and the effect of Amendment 73 are to disqualify congressional
incumbents from further service." 316 Ark., at 266, 872 S. W. 2d,
at 357.42 We must, of course, accept the state court's view of the
purpose of its own law: We are thus authoritatively informed that
the sole purpose of § 3 of Amendment 73 was to attempt to achieve a
result that is forbidden by the Federal Constitution. In-
42Justice Dudley noted in his concurrence: "I am reassured by
the style of this case, U. S. Term Limits, Inc. That name implies
just what this amendment is: A practical limit on the terms of the
members of the Congress." 316 Ark., at 276, 872 S. W. 2d, at 364
(opinion concurring in part and dissenting in part).
830
deed, it cannot be seriously contended that the intent behind
Amendment 73 is other than to prevent the election of incumbents.
The preamble of Amendment 73 states explicitly: "[T]he people of
Arkansas ... herein limit the terms of elected officials." Sections
1 and 2 create absolute limits on the number of terms that may be
served. There is no hint that § 3 was intended to have any other
purpose.
Petitioners do, however, contest the Arkansas Supreme Court's
conclusion that the amendment has the same practical effect as an
absolute bar. They argue that the possibility of a write-in
campaign creates a real possibility for victory, especially for an
entrenched incumbent. One may reasonably question the merits of
that contention.43 Indeed, we are advised by the state court that
there is nothing more than a faint glimmer of possibility that the
excluded candidate will win.44 Our prior cases, too, have suggested
that
43 The uncontested data submitted to the Arkansas Supreme Court
indicate that, in over 1,300 Senate elections since the passage of
the Seventeenth Amendment in 1913, only 1 has been won by a
write-in candidate. In over 20,000 House elections since the turn
of the century, only 5 have been won by write-in candidates. App.
201-202. Indeed, it is for this reason that the Arkansas Supreme
Court found the possibility of a write-in victory to be a mere
"glimme[r] of opportunity for those disqualified." 316 Ark., at
266, 872 S. W. 2d, at 357; see also
id., at 276, 872 S. W.
2d, at 364 (Dudley, J., concurring in part and dissenting in part)
("as a practical matter, the amendment would place term limits on
service in the Congress").
44 Contrary to the dissent,
post, at 919-920, we read a
majority of the Arkansas Supreme Court as holding that Amendment 73
has the same practical effect as an absolute bar. See 316 Ark., at
266, 872 S. W. 2d, at 357 (plurality opinion) (the "intent and the
effect of Amendment 73 are to disqualify congressional incumbents
from further service");
id., at 276, 872 S. W. 2d, at 364
(Dudley, J., concurring in part and dissenting in part) ("That name
implies just what this amendment is: A practical limit on the terms
of the members of the Congress"). However, as we note in the text,
infra, at 831, we do not rely on the state court's finding
on this point. See also
infra, at 836.
831
write-in candidates have only a slight chance of victory.45 But
even if petitioners are correct that incumbents may occasionally
win reelection as write-in candidates, there is no denying that the
ballot restrictions will make it significantly more difficult for
the barred candidate to win the election. In our view, an amendment
with the avowed purpose and obvious effect of evading the
requirements of the Qualifications Clauses by handicapping a class
of candidates cannot stand. To argue otherwise is to suggest that
the Framers spent significant time and energy in debating and
crafting Clauses that could be easily evaded. More importantly,
allowing States to evade the Qualifications Clauses by "dress[ing]
eligibility to stand for Congress in ballot access clothing"
trivializes the basic principles of our democracy that underlie
those Clauses. Petitioners' argument treats the Qualifications
Clauses not as the embodiment of a grand principle, but rather as
empty formalism. "'It is inconceivable that guaranties embedded in
the Constitution of the United States may thus be manipulated out
of existence.'"
Gomillion v.
Lightfoot, 364 U. S. 339, 345
(1960), quoting
Frost &
Frost Trucking Co. v.
Railroad Comm'n of Cal., 271 U. S. 583, 594
(1926).
45 We noted in
Lubin v.
Panish, 415 U. S. 709 (1974),
that "[t]he realities of the electoral process ... strongly suggest
that 'access' via write-in votes falls far short of access in terms
of having the name of the candidate on the ballot."
Id., at
719, n. 5; see also
Anderson v.
Celebrezze, 460 U. S. 780, 799, n. 26
(1983) ("We have previously noted that [a write-in] opportunity is
not an adequate substitute for having the candidates name appear on
the printed ballot");
United States v.
Classic,
313 U. S. 299,
313 (1941) ("Even if ... voters may lawfully write into their
ballots, cast at the general election, the name of a candidate
rejected at the primary and have their ballots counted, the
practical operation of the primary law ... is such as to impose
serious restrictions upon the choice of candidates by the voters");
Burdick v.
Takushi, 504 U. S. 428,437, n. 7
(1992) ("If the dissent were correct in suggesting that requiring
primary voters to select a specific ballot impermissibly burdened
the right to vote, it is clear under our decisions that the
availability of a write-in option would not provide an adequate
remedy").
832
Petitioners make the related argument that Amendment 73 merely
regulates the "Manner" of elections, and that the amendment is
therefore a permissible exercise of state power under Article I, §
4, cl. 1 (the Elections Clause), to regulate the "Times, Places and
Manner" of elections.46 We cannot agree.
A necessary consequence of petitioners' argument is that
Congress itself would have the power to "make or alter" a measure
such as Amendment 73. Art. I, § 4, cl. 1. See
Smiley v.
Holm, 285 U.
S. 355, 366-367 (1932) ("[T]he Congress may supplement these
state regulations or may substitute its own"). That the Framers
would have approved of such a result is unfathomable. As our
decision in
Powell and our discussion above make clear, the
Framers were particularly concerned that a grant to Congress of the
authority to set its own qualifications would lead inevitably to
congressional self-aggrandizement and the upsetting of the delicate
constitutional balance. See
supra, at 790-791, and n. 10,
supra. Petitioners would have us believe, however, that even
as the Framers carefully circumscribed congressional power to set
qualifications, they intended to allow Congress to achieve the same
result by simply formulating the regulation as a ballot access
restriction under the Elections Clause. We refuse to adopt an
interpretation of the Elections Clause that would so cavalierly
disregard what the Framers intended to be a fundamental
constitutional safeguard.
Moreover, petitioners' broad construction of the Elections
Clause is fundamentally inconsistent with the Framers' view of that
Clause. The Framers intended the Elections Clause to grant States
authority to create procedural regulations, not to provide States
with license to exclude classes of candi-
46 Article I, § 4, cl. 1, provides:
"The 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, except as to the Places of chusing
Senators."
833
dates from federal office. During the Convention debates, for
example, Madison illustrated the procedural focus of the Elections
Clause by noting that it covered "[w]hether the electors should
vote by ballot or viva voce, should assemble at this place or that
place; should be divided into districts or all meet at one place,
sh[oul]d all vote for all the representatives; or all in a district
vote for a number allotted to the district." 2 Farrand 240.
Similarly, during the ratification debates, proponents of the
Constitution noted: "[T]he power over the manner only enables them
to determine
how these electors shall elect-whether by
ballot, or by vote, or by any other way." 4 Elliot's Debates 71
(Steele statement at North Carolina ratifying convention) (emphasis
in original).47
Hamilton made a similar point in The Federalist No. 60, in which
he defended the Constitution's grant to Congress of the power to
override state regulations. Hamilton expressly distinguished the
broad power to set qualifications from the limited authority under
the Elections Clause, noting that
"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 upon the national government. Its
authority would be expressly restricted to the regulation of the
times, the places, and the manner of
elections." The Federalist No. 60, at 371 (emphasis in
original).
As Hamilton's statement suggests, the Framers understood the
Elections Clause as a grant of authority to issue procedural
regulations, and not as a source of power to dictate
47See also "The Republican," Connecticut Courant (Hartford, Jan.
7, 1788), 1 Bailyn 710, 713 ("The constitution expressly provides
that the choice shall be by the people, which cuts off both from
the general and state Legislatures the power of so regulating the
mode of election, as to deprive the people of a fair choice").
834
electoral outcomes, to favor or disfavor a class of candidates,
or to evade important constitutional restraints.
Our cases interpreting state power under the Elections Clause
reflect the same understanding. The Elections Clause gives States
authority "to enact the numerous requirements as to procedure and
safeguards which experience shows are necessary in order to enforce
the fundamental right involved."
Smiley v.
Holm, 285
U. S., at 366. However, "[t]he power to regulate the time, place,
and manner of elections does not justify, without more, the
abridgment of fundamental rights."
Tashjian v.
Republican
Party of Conn., 479 U. S. 208, 217
(1986). States are thus entitled to adopt "generally applicable and
evenhanded restrictions that protect the integrity and reliability
of the electoral process itself."
Anderson v.
Celebrezze, 460 U. S. 780, 788, n. 9
(1983). For example, in
Storer v.
Brown, 415 U. S. 724 (1974), the
case on which petitioners place principal reliance, we upheld the
validity of certain provisions of the California Elections Code. In
so doing, we emphasized the States' interest in having orderly,
fair, and honest elections "rather than chaos."
Id., at 730.
We also recognized the "States' strong interest in maintaining the
integrity of the political process by preventing interparty
raiding,"
id., at 731, and explained that the specific
requirements applicable to independents were "expressive of a
general state policy aimed at maintaining the integrity of the
various routes to the ballot,"
id., at 733. In other cases,
we have approved the States' interests in avoiding "voter
confusion, ballot overcrowding, or the presence of frivolous
candidacies,"
Munro v.
Socialist Workers Party,
479 U. S. 189,
194-195 (1986), in "seeking to assure that elections are operated
equitably and efficiently,"
Burdick v.
Takushi, 504
U. S., at 433, and in "guard[ing] against irregularity and error in
the tabulation of votes,"
Roudebush v.
Hartke,
405 U. S. 15, 25
(1972). In short, we have approved of state regulations designed to
ensure that
835
elections are "'fair and honest and ... [that] some sort of
order, rather than chaos, ... accompan[ies] the democratic
processes.'"
Burdick v.
Takushi, 504 U. S., at 433,
quoting
Storer, 415 U. S., at 730.
The provisions at issue in
Storer and our other Elections
Clause cases were thus constitutional because they regulated
election
procedures and did not even arguably impose any
substantive qualification rendering a class of potential candidates
ineligible for ballot position. They served the state interest in
protecting the integrity and regularity of the election process, an
interest independent of any attempt to evade the constitutional
prohibition against the imposition of additional qualifications for
service in Congress. And they did not involve measures that exclude
candidates from the ballot without reference to the candidates'
support in the electoral process. Our cases upholding state
regulations of election procedures thus provide little support for
the contention that a state-imposed ballot access restriction is
constitutional when it is undertaken for the twin goals of
disadvantaging a particular class of candidates and evading the
dictates of the Qualifications Clauses.48
48Nor does
Clements v.
Fashing, 457 U. S. 957 (1982),
support petitioners. In
Clements, the Court rejected First
and Fourteenth Amendment challenges to Texas' so-called
"resign-to-run" provision. That provision treated an elected state
official's declaration of candidacy for another elected office as
an automatic resignation from the office then held. We noted that
the regulation was a permissible attempt to regulate state
officeholders. See
id., at 972 ("Appellees are elected state
officeholders who contest restrictions on partisan political
activity") (emphasis deleted);
id., at 974, n. 1 (STEVENS,
J., concurring in part and concurring in judgment) ("The fact that
appellees hold state office is sufficient to justify a restriction
on their ability to run for other office that is not imposed on the
public generally"). As the Ninth Circuit recognized in upholding a
similar resign-to-run statute from Arizona: "The burden on
candidacy ... is indirect and attributable to a desire to regulate
state officeholders and not to impose additional qualifications to
serving in Congress."
Joyner v.
Mofford, 706 F.2d
1523, 1528 (1983); see also
Signorelli v.
Evans,
637 F. 2d
836
We do not understand the dissent to contest our primary thesis,
namely, that if the qualifications for Congress are fixed in the
Constitution, then a state-passed measure with the avowed purpose
of imposing indirectly such an additional qualification violates
the Constitution. The dissent, instead, raises two objections,
challenging the assertion that the Arkansas amendment has the
likely effect of creating a qualification,
post, at 917-919,
and suggesting that the true intent of Amendment 73 was not to
evade the Qualifications Clauses but rather to simply "level the
playing field,"
post, at 922. N either of these objections
has merit.
As to the first, it is simply irrelevant to our holding
today.
As we note above in n. 45, our prior cases strongly suggest that
write-in candidates will have only a slim chance of success, and
the Arkansas plurality agreed. However, we expressly do not rest on
this Court's prior observations regarding write-in candidates.
Instead, we hold that a state amendment is unconstitutional when it
has the likely effect of handicapping a class of candidates and has
the sole purpose of creating additional qualifications indirectly.
Thus, the dissent's discussion of the evidence concerning the
possibility that a popular incumbent will win a write-in election
is simply beside the point.
As to the second argument, we find wholly unpersuasive the
dissent's suggestion that Amendment 73 was designed merely to
"level the playing field." As we have noted,
supra, at
829-830, it is obvious that the sole purpose of Amendment 73 was to
limit the terms of elected officials, both state and federal, and
that Amendment 73, therefore, may not stand.
853,859 (CA2 1980) ("New York's purpose is to regulate
the judicial office that [the candidate] holds, not the
Congressional office he seeks"). Moreover, as now-Chief Judge
Newman observed while upholding similar restrictions imposed by New
York, such provisions "plac[e] no obstacle between [a candidate]
and the ballot or his nomination or his election. He is free to run
and the people are free to choose him."
Id., at 858.
837
v
The merits of term limits, or "rotation," have been the subject
of debate since the formation of our Constitution, when the Framers
unanimously rejected a proposal to add such limits to the
Constitution. The cogent arguments on both sides of the question
that were articulated during the process of ratification largely
retain their force today. Over half the States have adopted
measures that impose such limits on some offices either directly or
indirectly, and the N ation as a whole, notably by constitutional
amendment, has imposed a limit on the number of terms that the
President may serve.49 Term limits, like any other qualification
for office, unquestionably restrict the ability of voters to vote
for whom they wish. On the other hand, such limits may provide for
the infusion of fresh ideas and new perspectives, and may decrease
the likelihood that representatives will lose touch with their
constituents. It is not our province to resolve this longstanding
debate.
We are, however, firmly convinced that allowing the several
States to adopt term limits for congressional service would effect
a fundamental change in the constitutional framework. Any such
change must come not by legislation adopted either by Congress or
by an individual State, but rather-as have other important changes
in the electoral process 50_through the amendment procedures set
forth in Article V. The Framers decided that the qualifications for
service in the Congress of the United States be fixed in the
Constitution and be uniform throughout the Nation. That decision
reflects the Framers' understanding that Members of Congress are
chosen by separate constituencies, but that
49 See U. S. Const., Arndt. 22 (1951) (limiting Presidents to
two 4-year terms).
50 See,
e. g., Arndt. 17 (1913) (direct elections
of Senators); Arndt. 19 (1920) (extending suffrage to women);
Arndt. 22 (1951) (Presidential term limits); Arndt. 24 (1964)
(prohibition against poll taxes); Arndt. 26 (1971) (lowering age of
voter eligibility to 18).
838
they become, when elected, servants of the people of the United
States. They are not merely delegates appointed by separate,
sovereign States; they occupy offices that are integral and
essential components of a single National Government. In the
absence of a properly passed constitutional amendment, allowing
individual States to craft their own qualifications for Congress
would thus erode the structure envisioned by the Framers, a
structure that was designed, in the words of the Preamble to our
Constitution, to form a "more perfect Union."
The judgment is affirmed.
It is so ordered.
JUSTICE KENNEDY, concurring. I join the opinion of the
Court.
The majority and dissenting opinions demonstrate the intricacy
of the question whether or not the Qualifications Clauses are
exclusive. In my view, however, it is well settled that the whole
people of the United States asserted their political identity and
unity of purpose when they created the federal system. The
dissent's course of reasoning suggesting otherwise might be
construed to disparage the republican character of the National
Government, and it seems appropriate to add these few remarks to
explain why that course of argumentation runs counter to
fundamental principles of federalism.
Federalism was our Nation's own discovery. The Framers split the
atom of sovereignty. It was the genius of their idea that our
citizens would have two political capacities, one state and one
federal, each protected from incursion by the other. The resulting
Constitution created a legal system unprecedented in form and
design, establishing two orders of government, each with its own
direct relationship, its own privity, its own set of mutual rights
and obligations to the people who sustain it and are governed by
it. It is appropriate to recall these origins, which instruct us as
to the
839
nature of the two different governments created and confirmed by
the Constitution.
A distinctive character of the National Government, the mark of
its legitimacy, is that it owes its existence to the act of the
whole people who created it. It must be remembered that the
National Government, too, is republican in essence and in theory.
John Jay insisted on this point early in The Federalist Papers, in
his comments on the government that preceded the one formed by the
Constitution.
"To all general purposes we have uniformly been one people; each
individual citizen everywhere enjoying the same national rights,
privileges, and protection ....
"A strong sense of the value and blessings of union induced the
people, at a very early period, to institute a federal government
to preserve and perpetuate it. They formed it almost as soon as
they had a political existence .... " The Federalist No.2, pp.
38-39 (C. Rossiter ed. 1961) (hereinafter The Federalist).
Once the National Government was formed under our Constitution,
the same republican principles continued to guide its operation and
practice. As James Madison explained, the House of Representatives
"derive[s] its powers from the people of America," and "the
operation of the government on the people in their individual
capacities" makes it "a national government," not merely a federal
one.
Id., No. 39, at 244, 245 (emphasis deleted). The Court
confirmed this principle in
McCulloch v.
Maryland, 4
Wheat. 316, 404-405 (1819), when it said: "The government of the
Union, then, ... is, emphatically, and truly, a government of the
people. In form and in substance it emanates from them. Its powers
are granted by them, and are to be exercised directly on them, and
for their benefit." The same theory led us to observe as follows in
Ex parte Yarbrough, 110 U. S. 651, 666
(1884): "In a republican government, like ours, ... political
840
power is reposed in representatives of the entire body of the
people."
In one sense it is true that "the people of each State retained
their separate political identities,"
post, at 849, for the
Constitution takes care both to preserve the States and to make use
of their identities and structures at various points in organizing
the federal union. It does not at all follow from this that the
sole political identity of an American is with the State of his or
her residence. It denies the dual character of the Federal
Government which is its very foundation to assert that the people
of the United States do not have a political identity as well, one
independent of, though consistent with, their identity as citizens
of the State of their residence. Cf.
post, at 848-850. It
must be recognized that "'[f]or all the great purposes for which
the Federal government was formed, we are one people, with one
common country.'"
Shapiro v.
Thompson, 394 U. S. 618, 630 (1969)
(quoting
Passenger Cases, 7 How. 283, 492 (1849) (Taney, C.
J., dissenting); see
Crandall v.
Nevada, 6 Wall. 35,
43 (1868) ("The people of these United States constitute one
nation" and "have a government in which all of them are deeply
interested").
It might be objected that because the States ratified the
Constitution, the people can delegate power only through the States
or by acting in their capacities as citizens of particular States.
See
post, at 846. But in
McCulloch v.
Maryland, the Court set forth its authoritative rejection of
this idea:
"The Convention which framed the constitution was indeed elected
by the State legislatures. But the instrument ... was submitted to
the people .... It is true, they assembled in their several
States-and where else should they have assembled? No political
dreamer was ever wild enough to think of breaking down the lines
which separate the States, and of compounding the American people
into one common mass. Of consequence, when they act, they act in
their States. But
841
the measures they adopt do not, on that account, cease to be the
measures of the people themselves, or become the measures of the
State governments." 4 Wheat., at 403.
The political identity of the entire people of the Union is
reinforced by the proposition, which I take to be beyond dispute,
that, though limited as to its objects, the National Government is,
and must be, controlled by the people without collateral
interference by the States.
McCulloch affirmed this
proposition as well, when the Court rejected the suggestion that
States could interfere with federal powers. "This was not intended
by the American people. They did not design to make their
government dependent on the States."
Id., at 432. The States
have no power, reserved or otherwise, over the exercise of federal
authority within its proper sphere. See
id., at 430 (where
there is an attempt at "usurpation of a power which the people of a
single State cannot give," there can be no question whether the
power "has been surrendered" by the people of a single State
because "[t]he right never existed"). That the States may not
invade the sphere of federal sovereignty is as incontestable, in my
view, as the corollary proposition that the Federal Government must
be held within the boundaries of its own power when it intrudes
upon matters reserved to the States. See
United States v.
Lopez, ante, p. 549.
Of course, because the Framers recognized that state power and
identity were essential parts of the federal balance, see The
Federalist No. 39, the Constitution is solicitous of the
prerogatives of the States, even in an otherwise sovereign federal
province. The Constitution uses state boundaries to fix the size of
congressional delegations, Art. I, § 2, cl. 3, ensures that each
State shall have at least one representative,
ibid., grants
States certain powers over the times, places, and manner of federal
elections (subject to congressional revision), Art. I, § 4, cl. 1,
requires that when the President is elected by the House of
Representatives, the delega-
842
tions from each State have one vote, Art. II, § 1, cl. 3, and
Arndt. 12, and allows States to appoint electors for the President,
Art. II, § 1, cl. 2. Nothing in the Constitution or The Federalist
Papers, however, supports the idea of state interference with the
most basic relation between the National Government and its
citizens, the selection of legislative representatives. Indeed,
even though the Constitution uses the qualifications for voters of
the most numerous branch of the States' own legislatures to set the
qualifications of federal electors, Art. I, § 2, cl. 1, when these
electors vote, we have recognized that they act in a federal
capacity and exercise a federal right. Addressing this principle in
Ex parte Yarbrough the Court stated as follows: "[T]he right
to vote for a member of Congress" is an "office ... created by that
Constitution, and by that alone .... It is not true, therefore,
that electors for members of Congress owe their right to vote to
the State law in any sense which makes the exercise of the right to
depend exclusively on the law of the State." 110 U. S., at 663-664.
We made the same point in
United States v.
Classic,
313 U. S. 299,
315 (1941), when we said: "[T]he right of qualified voters within a
state to cast their ballots and have them counted at Congressional
elections ... is a right secured by the Constitution" and "is
secured against the action of individuals as well as of
states."
The federal character of congressional elections flows from the
political reality that our National Government is republican in
form and that national citizenship has privileges and immunities
protected from state abridgment by the force of the Constitution
itself. Even before the passage of the Fourteenth Amendment, the
latter proposition was given expression in
Crandall v.
Nevada where the Court recognized the right of the Federal
Government to call "any or all of its citizens to aid in its
service, as members of the Congress, of the courts, of the
executive departments, and to fill all its other offices," and
further recognized that "this right cannot be made to depend upon
the pleasure of a State over whose
843
territory they must pass to reach the point where these services
must be rendered." 6 Wall., at 43. And without reference to the
Privileges and Immunities Clause, the rights of national
citizenship were upheld again in
United States v.
Cruikshank, 92
U. S. 542, 552 (1876), where the Court said:
"The right of the people peaceably to assemble for the purpose
of petitioning Congress for a redress of grievances, or for any
thing else connected with the powers or the duties of the national
government, is an attribute of national citizenship, and, as such,
under the protection of, and guaranteed by, the United States. The
very idea of a government, republican in form, implies a right on
the part of its citizens to meet peaceably for consultation in
respect to public affairs and to petition for a redress of
grievances." Cf.
Hague v.
Committee for Industrial
Organization, 307
U. S. 496, 513 (1939) (opinion of Roberts, J., joined by Black,
J., and joined in relevant part by Hughes, C. J.) ("Citizenship of
the United States would be little better than a name if it did not
carry with it the right to discuss national legislation and the
benefits, advantages, and opportunities to accrue to citizens
therefrom").
In the
Slaughter-House Cases, 16 Wall. 36, 78-80 (1873),
the Court was careful to hold that federal citizenship in and of
itself suffices for the assertion of rights under the Constitution,
rights that stem from sources other than the States. Though the
Slaughter-House Cases interpreted the Privileges and
Immunities Clause of the Fourteenth Amendment, its view of the
origins of federal citizenship was not confined to that source.
Referring to these rights of national dimension and origin the
Court observed: "But lest it should be said that no such privileges
and immunities are to be found if those we have been considering
are excluded, we venture to suggest some which owe their existence
to the Federal government, its National character, its
Constitution, or its laws."
Id., at 79. Later cases only
reinforced the idea that there are such incidents of national
citizenship. See
Ex
844
parte Yarbrough, supra; Terral v.
Burke Constr.
Co., 257 U. S.
529 (1922);
United States v.
Classic, supra; United
States v.
Guest, 383 U. S. 745 (1966);
Shapiro v.
Thompson, 394 U. S. 618 (1969).
Federal privileges and immunities may seem limited in their
formulation by comparison with the expansive definition given to
the privileges and immunities attributed to state citizenship, see
Slaughter-House Cases, supra, at 78;
Hague, supra, at
520 (opinion of Stone, J.), but that federal rights flow to the
people of the United States by virtue of national citizenship is
beyond dispute.
Not the least of the incongruities in the position advanced by
Arkansas is the proposition, necessary to its case, that it can
burden the rights of resident voters in federal elections by reason
of the manner in which they earlier had exercised it. If the
majority of the voters had been successful in selecting a
candidate, they would be penalized from exercising that same right
in the future. Quite apart from any First Amendment concerns, see
Williams v.
Rhodes, 393 U. S. 23, 30 (1968);
Anderson v.
Celebrezze, 460 U. S. 780, 786-788
(1983), neither the law nor federal theory allows a State to burden
the exercise of federal rights in this manner. See
Terral v.
Burke Constr. Co., supra, at 532;
Shapiro v.
Thompson, supra, at 629-631. Indeed, as one of the "right[s]
of the citizen[s] of this great country, protected by implied
guarantees of its Constitution," the Court identified the right"
'to come to the seat of government ... to share its offices, to
engage in administering its functions.'''
Slaughter-House Cases,
supra, at 79 (quoting
Crandall v.
Nevada, 6
Wall., at 44). This observation serves to illustrate the extent of
the State's attempted interference with the federal right to vote
(and the derivative right to serve if elected by majority vote) in
a congressional election, rights that do not derive from the state
power in the first instance but that belong to the voter in his or
her capacity as a citizen of the United States.
It is maintained by our dissenting colleagues that the State of
Arkansas seeks nothing more than to grant its peo-
845
pIe surer control over the National Government, a control, it is
said, that will be enhanced by the law at issue here. The arguments
for term limitations (or ballot restrictions having the same
effect) are not lacking in force; but the issue, as all of us must
acknowledge, is not the efficacy of those measures but whether they
have a legitimate source, given their origin in the enactments of a
single State. There can be no doubt, if we are to respect the
republican origins of the Nation and preserve its federal
character, that there exists a federal right of citizenship, a
relationship between the people of the Nation and their National
Government, with which the States may not interfere. Because the
Arkansas enactment intrudes upon this federal domain, it exceeds
the boundaries of the Constitution.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR,
and JUSTICE SCALIA join, dissenting.
It is ironic that the Court bases today's decision on the right
of the people to "choose whom they please to govern them." See
ante, at 783, 793, 795, 819. Under our Constitution, there
is only one State whose people have the right to "choose whom they
please" to represent Arkansas in Congress. The Court holds,
however, that neither the elected legislature of that State nor the
people themselves (acting by ballot initiative) may prescribe any
qualifications for those representatives. The majority therefore
defends the right of the people of Arkansas to "choose whom they
please to govern them" by invalidating a provision that won nearly
60% of the votes cast in a direct election and that carried every
congressional district in the State.
I dissent. Nothing in the Constitution deprives the people of
each State of the power to prescribe eligibility requirements for
the candidates who seek to represent them in Congress. The
Constitution is simply silent on this question. And where the
Constitution is silent, it raises no bar to action by the States or
the people.
846
I
Because the majority fundamentally misunderstands the notion of
"reserved" powers, I start with some first principles. Contrary to
the majority's suggestion, the people of the States need not point
to any affirmative grant of power in the Constitution in order to
prescribe qualifications for their representatives in Congress, or
to authorize their elected state legislators to do so.
A
Our system of government rests on one overriding principle: All
power stems from the consent of the people. To phrase the principle
in this way, however, is to be imprecise about something important
to the notion of "reserved" powers. The ultimate source of the
Constitution's authority is the consent of the people of each
individual State, not the consent of the undifferentiated people of
the Nation as a whole.
The ratification procedure erected by Article VII makes this
point clear. The Constitution took effect once it had been ratified
by the people gathered in convention in nine different States. But
the Constitution went into effect only "between the States so
ratifying the same," Art. VII; it did not bind the people of North
Carolina until they had accepted it. In Madison's words, the
popular consent upon which the Constitution's authority rests was
"given by the people, not as individuals composing one entire
nation, but as composing the distinct and independent States to
which they respectively belong." The Federalist No. 39, p. 243 (C.
Rossiter ed. 1961) (hereinafter The Federalist). Accord, 3 Debates
in the Several State Conventions on the Adoption of the Federal
Constitution 94 (J. Elliot 2d ed. 1876) (hereinafter Elliot)
(remarks of James Madison at the Virginia Convention).l
1 The ringing initial words of the Constitution-"We the People
of the United States"-convey something of the same idea. (In the
Constitution, after all, "the United States" is consistently a
plural noun. See
847
When they adopted the Federal Constitution, of course, the
people of each State surrendered some of their authority to the
United States (and hence to entities accountable to the people of
other States as well as to themselves). They affirmatively deprived
their States of certain powers, see,
e. g., Art. I, §
10, and they affirmatively conferred certain powers upon the
Federal Government, see,
e. g., Art. I, § 8. Because
the people of the several States are the only true source of power,
however, the Federal Government enjoys no authority beyond what the
Constitution confers: The Federal Government's powers are limited
and enumerated. In the words of Justice Black: "The United States
is entirely a creature of the Constitution. Its power and authority
have no other source."
Reid v.
Covert, 354 U. S. 1, 5-6 (1957)
(plurality opinion) (footnote omitted).
In each State, the remainder of the people's powers"[t]he powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States," Arndt. lO-are either delegated to
the state government or retained by the people. The Federal
Constitution does not specify which of these two possibilities
obtains; it is up to the various state constitutions to declare
which powers the people of each State have delegated to their state
government. As far as
Art. I, § 9, cl. 8; Art. II, § 1, cl. 7; Art. III, § 2, cl. 1;
Art. III, § 3, cl. 1; cf. Amar, Of Sovereignty and Federalism, 96
Yale L. J. 1425, 1455 (1987) (noting this fact, though reaching
other conclusions).) The Preamble that the Philadelphia Convention
approved before sending the Constitution to the Committee of Style
is even clearer. It began: "We the people of the States of
New-Hampshire, Massachusetts, Rhode-Island and Providence
Plantations, Connecticut, New-York, New-Jersey, Pennsylvania,
Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and
Georgia .... " 2 Records of the Federal Convention of 1787, p. 565
(M. Farrand ed. 1911) (hereinafter Farrand). Scholars have
suggested that the Committee of Style adopted the current language
because it was not clear that all the States would actually ratify
the Constitution. M. Farrand, The Framing of the Constitution of
the United States 190-191 (1913). In this instance, at least, I
agree with the majority that the Committee's edits did not work a
substantive change in the Constitution. Cf.
ante, at 792, n.
8.
848
the Federal Constitution is concerned, then, the States can
exercise all powers that the Constitution does not withhold from
them. The Federal Government and the States thus face different
default rules: Where 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.
These basic principles are enshrined in the Tenth Amendment,
which declares that all powers neither delegated to the Federal
Government nor prohibited to the States "are reserved to the States
respectively, or to the people." With this careful last phrase, the
Amendment avoids taking any position on the division of power
between the state governments and the people of the States: It is
up to the people of each State to determine which "reserved" powers
their state government may exercise. But the Amendment does make
clear that powers reside at the state level except where the
Constitution removes them from that level. All powers that the
Constitution neither delegates to the Federal Government nor
prohibits to the States are controlled by the people of each
State.
To be sure, when the Tenth Amendment uses the phrase "the
people," it does not specify whether it is referring to the people
of each State or the people of the Nation as a whole. But the
latter interpretation would make the Amendment pointless: There
would have been no reason to provide that where the Constitution is
silent about whether a particular power resides at the state level,
it might or might not do so. In addition, it would make no sense to
speak of powers as being reserved to the undifferentiated people of
the Nation as a whole, because the Constitution does not
contemplate that those people will either exercise power or
delegate it. The Constitution simply does not recognize any
mechanism for action by the undifferentiated people of the Nation.
Thus, the amendment provision of Article
849
V calls for amendments to be ratified not by a convention of the
national people, but by conventions of the people in each State or
by the state legislatures elected by those people. Likewise, the
Constitution calls for Members of Congress to be chosen State by
State, rather than in nationwide elections. Even the selection of
the President-surely the most national of national figures-is
accomplished by an electoral college made up of delegates chosen by
the various States, and candidates can lose a Presidential election
despite winning a majority of the votes cast in the Nation as a
whole. See also Art. II, § 1, cl. 3 (providing that when no
candidate secures a majority of electoral votes, the election of
the President is thrown into the House of Representatives, where
"the Votes shall be taken by States, the Representatives from each
State having one Vote"); Arndt. 12 (same).
In short, the notion of popular sovereignty that undergirds the
Constitution does not erase state boundaries, but rather tracks
them. The people of each State obviously did trust their fate to
the people of the several States when they consented to the
Constitution; not only did they empower the governmental
institutions of the United States, but they also agreed to be bound
by constitutional amendments that they themselves refused to
ratify. See Art. V (providing that proposed amendments shall take
effect upon ratification by three-quarters of the States). At the
same time, however, the people of each State retained their
separate political identities. As Chief Justice Marshall put it,
"[n]o political dreamer was ever wild enough to think of breaking
down the lines which separate the States, and of compounding the
American people into one common mass."
McCulloch v.
Maryland, 4 Wheat. 316, 403 (1819).2
2 The concurring opinion appears to draw precisely the opposite
conclusion from the passage in
McCulloch that contains this
sentence. See
ante, at 840-841. But while the concurring
opinion seizes on Marshall's references to "the people," Marshall
was merely using that phrase in contradistinction to "the State
governments." Counsel for Maryland had
850
Any ambiguity in the Tenth Amendment's use of the phrase "the
people" is cleared up by the body of the Constitution itself.
Article I begins by providing that the Congress of the United
States enjoys "[a]ll legislative Powers herein granted," § 1, and
goes on to give a careful enumeration of Congress' powers, § 8. It
then concludes by enumerating certain powers that are
prohibited to the States. The import of this structure is
the same as the import of the Tenth Amendment: If we are to
invalidate Arkansas' Amendment 73, we must point to something in
the Federal Constitution that deprives the people of Arkansas of
the power to enact such measures.
B
The majority disagrees that it bears this burden. But its
arguments are unpersuasive.
1
The majority begins by announcing an enormous and untenable
limitation on the principle expressed by the Tenth Amendment.
According to the majority, the States possess only those powers
that the Constitution affirmatively grants to them or that they
enjoyed before the Constitution was adopted; the Tenth Amendment
"could only 'reserve' that
noted that "the constitution was formed and adopted, not by the
people of the United States at large, but by the people of the
respective States. To suppose that the mere proposition of this
fundamental law threw the American people into one aggregate mass,
would be to assume what the instrument itself does not profess to
establish."
McCulloch, 4 Wheat., at 363 (argument of
counsel). Marshall's opinion accepted this premise, even borrowing
some of counsel's language. See
id., at 403. What Marshall
rejected was counsel's conclusion that the Constitution therefore
was merely "a compact between the States." See
id., at 363
(argument of counsel). As Marshall explained, the acts of "the
people themselves" in the various ratifying conventions should not
be confused with "the measures of the State governments."
Id., at 403; see also
id., at 404 (noting that no
state government could control whether the people of that State
decided to adopt the Constitution).
851
which existed before."
Ante, at 802. From the fact that
the States had not previously enjoyed any powers over the
particular institutions of the Federal Government established by
the Constitution,3 the majority derives a rule precisely opposite
to the one that the Amendment actually prescribes: "'[T]he 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.'''
Ibid. (quoting 1 J. Story,
Commentaries on the Constitution of the United States § 627 (3d ed.
1858)).
The majority's essential logic is that the state governments
could not "reserve" any powers that they did not control at the
time the Constitution was drafted. But it was not the state
governments that were doing the reserving. The Constitution derives
its authority instead from the consent of
the people of the
States. Given the fundamental principle that all governmental
powers stem from the people of the States, it would simply be
incoherent to assert that the people of the States could not
reserve any powers that they had not previously controlled.
The Tenth Amendment's use of the word "reserved" does not help
the majority's position. If someone says that the power to use a
particular facility is reserved to some group, he is not saying
anything about whether that group has previously used the facility.
He is merely saying that the peo-
3 At the time of the framing, of course, a Federal Congress had
been operating under the Articles of Confederation for some 10
years. The States unquestionably had enjoyed the power to establish
qualifications for their delegates to this body, above and beyond
the qualifications created by the Articles themselves. See Brief
for Respondents Bobbie E. Hill et al. 39, n. 79 (conceding this
point); see also,
e. g., Md. Const. of 1776, Art.
XXVII (prescribing such qualifications), in 3 Federal and State
Constitutions 1695-1696 (F. Thorpe ed. 1909) (hereinafter Thorpe);
N. H. Const. of 1784, Pt. II (same), in 4 Thorpe 2467. It is
surprising, then, that the concurring opinion seeks to buttress the
majority's case by stressing the continuing applicability of "the
same republican principles" that had prevailed under the Articles.
See
ante, at 839.
852
pIe who control the facility have designated that group as the
entity with authority to use it. The Tenth Amendment is similar:
The people of the States, from whom all governmental powers stem,
have specified that all powers not prohibited to the States by the
Federal Constitution are reserved "to the States respectively, or
to the people."
The majority is therefore quite wrong to conclude that the
people of the States cannot authorize their state governments to
exercise any powers that were unknown to the States when the
Federal Constitution was drafted. Indeed, the majority's position
frustrates the apparent purpose of the Amendment's final phrase.
The Amendment does not preempt any limitations on state power found
in the state constitutions, as it might have done if it simply had
said that the powers not delegated to the Federal Government are
reserved to the States. But the Amendment also does not prevent the
people of the States from amending their state constitutions to
remove limitations that were in effect when the Federal
Constitution and the Bill of Rights were ratified.
In an effort to defend its position, the majority points to
language in
Garcia v.
San Antonio Metropolitan Transit
Authority, 469 U.
S. 528, 549 (1985), which it takes to indicate that the Tenth
Amendment covers only "the original powers of [state] sovereignty."
Ante, at 802. But
Garcia dealt with an entirely
different issue: the extent to which principles of state
sovereignty implicit in our federal system curtail Congress'
authority to exercise its enumerated powers. When we are asked to
decide whether a congressional statute that appears to have been
authorized by Article I is nonetheless unconstitutional because it
invades a protected sphere of state sovereignty, it may well be
appropriate for us to inquire into what we have called the
"traditional aspects of state sovereignty." See
National League
of Cities v.
Usery, 426 U. S. 833, 841, 849
(1976); see also
New York v.
United States, 505 U. S. 144, 156-157
(1992). The question
853
raised by the present case, however, is not whether any
principle of state sovereignty implicit in the Tenth Amendment bars
congressional action that Article I appears to authorize, but
rather whether Article I bars state action that it does not appear
to forbid. The principle necessary to answer this question is
express on the Tenth Amendment's face: Unless the Federal
Constitution affirmatively prohibits an action by the States or the
people, it raises no bar to such action.
The majority also seeks support for its view of the Tenth
Amendment in
McCulloch v.
Maryland, 4 Wheat. 316
(1819). See
ante, at 802. But this effort is misplaced.
McCulloch did make clear that a power need not be
"expressly" delegated to the United States or prohibited to the
States in order to fall outside the Tenth Amendment's reservation;
delegations and prohibitions can also arise by necessary
implication.4 True to the text of the Tenth Amendment, however,
McCulloch indicated that all powers as to which the
Constitution does not speak (whether expressly or by necessary
implication) are "reserved" to the state level. Thus, in its only
discussion of the Tenth Amendment,
McCulloch observed that
the Amendment "leav[es] the question, whether the particular power
which may become the subject of contest has been delegated to the
one government, or prohibited to the other, to depend on a fair
construction of the whole [Constitution]." 4 Wheat., at 406.
McCulloch did not qualify this observation by indicating
that the question also turned on whether the States had enjoyed the
power before the framing. To the contrary,
McCulloch seemed
to assume that the people had "conferred on the general government
the power contained in the constitution, and on the States the
whole residuum of power."
Id., at 410.
The structure of
McCulloch's analysis also refutes the
majority's position. The question before the Court was
4 Despite the majority's odd suggestion to the contrary, see
ante, at 796797, n. 12, I fully agree with this sensible
position. See
supra, at 848.
854
whether the State of Maryland could tax the Bank of the United
States, which Congress had created in an effort to accomplish
objects entrusted to it by the Constitution. Chief Justice
Marshall's opinion began by upholding the federal statute
incorporating the bank.
Id., at 400-425. It then held that
the Constitution affirmatively prohibited Maryland's tax on the
bank created by this statute.
Id., at 425-437. The Court
relied principally on concepts that it deemed inherent in the
Supremacy Clause of Article VI, which declares that "[t]his
Constitution, and the Laws of the United States which shall be made
in Pursuance thereof, ... shall be the supreme Law of the Land ....
" In the Court's view, when a power has been "delegated to the
United States by the Constitution," Arndt. 10, the Supremacy Clause
forbids a State to "retard, impede, burden, or in any manner
control, the operations of the constitutional laws enacted by
Congress to carry [that power] into execution."
McCulloch, 4
Wheat., at 436. Thus, the Court concluded that the very nature of
state taxation on the bank's operations was "incompatible with, and
repugnant to," the federal statute creating the bank. See
id., at 425.
For the past 175 years,
McCulloch has been understood to
rest on the proposition that the Constitution affirmatively barred
Maryland from imposing its tax on the Bank's operations. See,
e. g., Osborn v.
Bank of United States,
9 Wheat. 738,859-868 (1824) (reaffirming
McCulloch's
conclusion that by operation of the Supremacy Clause, the federal
statute incorporating the bank impliedly pre-empted state laws
attempting to tax the bank's operations);
Maryland v.
Louisiana, 451
U. S. 725, 746 (1981) (citing
McCulloch for the
proposition that the Supremacy Clause deprives the States of the
power to pass laws that conflict with federal statutes); see also
North Dakota v.
United States, 495 U. S. 423, 434 (1990)
(plurality opinion) (citing
McCulloch for the proposition
that state laws may violate the Supremacy Clause when they
"regulate the Government directly or discriminate against
855
it").5 For the majority, however,
McCulloch apparently
turned on the fact that before the Constitution was adopted, the
States had possessed no power to tax the instrumentalities of the
governmental institutions that the Constitution created. This
understanding of
McCulloch makes most of Chief Justice
Marshall's opinion irrelevant; according to the majority, there was
no need to inquire into whether federal law deprived Maryland of
the power in question, because the power could not fall into the
category of "reserved" powers anyway. 6
5 Though cited by the majority, see
ante, at 802,
Crandall v.
Nevada, 6 Wall. 35 (1868), did not
deviate from this accepted view of
McCulloch. See
Crandall, supra, at 48 (observing that
McCulloch and
a number of other cases "distinctly placed the invalidity of the
State taxes on the ground that they interfered with an authority of
the Federal government").
6 To support its decision to attribute such surplusage to
McCulloch, the majority quotes Marshall's observation that
his opinion" 'does not deprive the States of any resources which
they originally possessed,'" because the power to tax federal
instrumentalities was not encompassed by the States' '''original
right to tax.'''
Ante, at 802 (quoting
McCulloch, 4
Wheat., at 436, 430). In part, Marshall was simply refuting
counsel's argument that it would constitute an "overwhelming
invasion of State sovereignty" for Congress to establish a bank
that operated within a State but that nonetheless was exempt from
state taxes. See
id., at 337-339 (argument of counsel)
(stressing that "the right to raise revenue" is "the highest
attribute of sovereignty" and indeed amounts to "the right to
exist"). While Marshall acknowledged that "this original right of
taxation" was an "essential" attribute of state sovereignty that
Congress could not constitutionally control or invade, he focused
more precisely than counsel on "the nature and extent of this
original right,"
id., at 428, and concluded that it did not
include the right "to tax the means employed by the government of
the Union, for the execution of its powers."
Id., at 430. In
this respect, then, the Court was referring to the States'
"original" powers in much the same context as
Garcia v.
San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985): The
Court was examining whether Congress' exercise of the "privilege of
exempting its own measures from State taxation,"
McCulloch,
supra, at 434, had invaded a protected sphere of state
sovereignty.
Marshall did go on to argue that the power to tax the operations
of the Bank of the United States simply was not susceptible to
control by the
856
Despite the majority's citation of
Garcia and
McCulloch, the only true support for its view of the Tenth
Amendment comes from Joseph Story's 1833 treatise on constitutional
law. See 2 J. Story, Commentaries on the Constitution of the United
States §§ 623-628. Justice Story was a brilliant and accomplished
man, and one cannot casually dismiss his views. On the other hand,
he was not a member of the Founding generation, and his
Commentaries on the Constitution were written a half century after
the framing. Rather than representing the original understanding of
the Constitution, they represent only his own understanding. In a
range of cases concerning the federal/state relation, moreover,
this Court has deemed positions taken in Story's commentaries to be
more nationalist than the Constitution warrants. Compare,
e.
g., id., §§ 1063-1069 (arguing that the Commerce Clause
deprives the States of the power to regulate any commerce within
Congress' reach), with
Cooley v.
Board of Wardens of Port
of Philadelphia ex rel. Soc. for Relief of Distressed Pilots,
12 How. 299 (1852) (holding that Congress' Commerce Clause powers
are not exclusive). See also 1 Life and Letters of Joseph Story 296
(W. Story ed. 1851) (extract of manuscript written by Story) ("I
hold it to be a maxim, which should never be lost sight of by a
great statesman, that the Government of the United States is
people of a single State. See 4 Wheat., at 430. But that theory
is perfectly consistent with my position. Marshall reasoned that
the people of a single State may not tax the instrumentalities
employed by the people of all the States through the National
Government, because such taxation would effectively subject the
people of the several States to the taxing power of a single State.
See
id., at 428. This sort of argument proves that the
people of a single State may not prescribe qualifications for the
President of the United States; the selection of the President,
like the operation of the Bank of the United States, is not up to
the people of any single State. See
infra, at 862. It does
not follow, however, that the people of a single State may not
prescribe qualifications for their own representatives in
Congress.
857
intrinsically too weak, and the powers of the State Governments
too strong"). In this case too, Story's position that the only
powers reserved to the States are those that the States enjoyed
before the framing conflicts with both the plain language of the
Tenth Amendment and the underlying theory of the Constitution.
2
The majority also sketches out what may be an alternative (and
narrower) argument. Again citing Story, the majority suggests that
it would be inconsistent with the notion of "national sovereignty"
for the States or the people of the States to have any reserved
powers over the selection of Members of Congress. See
ante,
at 803, 805. The majority apparently reaches this conclusion in two
steps. First, it asserts that because Congress as a whole is an
institution of the National Government, the individual Members of
Congress "owe primary allegiance not to the people of a State, but
to the people of the Nation." See
ante, at 803. Second, it
concludes that because each Member of Congress has a nationwide
constituency once he takes office, it would be inconsistent with
the Framers' scheme to let a single State prescribe qualifications
for him. See
ante, at 803-804, 837-838.
Political scientists can debate about who commands the "primary
allegiance" of Members of Congress once they reach Washington. From
the framing to the present, however, the
selection of the
Representatives and Senators from each State has been left entirely
to the people of that State or to their state legislature. See Art.
I, § 2, cl. 1 (providing that Members of the House of
Representatives are chosen "by the People of the several States");
Art. I, § 3, cl. 1 (originally providing that the Senators from
each State are "chosen by the Legislature thereof"); Amdt. 17
(amending § 3 to provide that the Senators from each State are
"elected by the people thereof"). The very name "congress" suggests
a
858
coming together of representatives from distinct entities.7 In
keeping with the complexity of our federal system, once the
representatives chosen by the people of each State assemble in
Congress, they form a national body and are beyond the control of
the individual States until the next election. But the selection of
representatives in Congress is indisputably an act of the people of
each State, not some abstract people of the Nation as a whole.
The concurring opinion suggests that this cannot be so, because
it is the Federal Constitution that guarantees the right of the
people of each State (so long as they are qualified electors under
state law) to take part in choosing the Members of Congress from
that State. See
ante, at 842. But the presence of a
federally guaranteed right hardly means that the selection of those
representatives constitutes "the exercise of federal authority."
See
ante, at 841. When the people of Georgia pick their
representatives in Congress, they are acting as the people of
Georgia, not as the corporate agents for the undifferentiated
people of the Nation as a whole. See
In re Green, 134 U. S. 377, 379 (1890)
("Although [Presidential] electors are appointed and act under and
pursuant to the Constitution of the United States, they are no more
officers or agents of the United States than are the members of the
state legislatures when acting as electors of federal senators, or
the people of the States when acting as electors of representatives
in Congress"). The concurring opinion protests that the exercise of
"reserved" powers in the area of congressional elections would
constitute "state interference with the most basic relation between
the N a-
7See 1 S. Johnson, A Dictionary of the English Language 393 (4th
ed. 1773) (defining "congress" as "[a]n appointed meeting for
settlement of affairs between different nations: as, the
congress of Cambray"); T. Sheridan, A Complete Dictionary of
the English Language (6th ed. 1796) ("an appointed meeting for
settlement of affairs between different nations; the assembly which
governs the United States of America").
859
tional Government and its citizens, the selection of legislative
representatives." See
ante, at 842. But when one strips away
its abstractions, the concurring opinion is simply saying that the
people of Arkansas cannot be permitted to inject themselves into
the process by which they themselves select Arkansas'
representatives in Congress.
The concurring opinion attempts to defend this surprising
proposition by pointing out that Americans are "citizens of the
United States" as well as "of the State wherein they reside," Amdt.
14, § 1, and that national citizenship (particularly after the
ratification of the Fourteenth Amendment) "has privileges and
immunities protected from state abridgment by the force of the
Constitution itself,"
ante, at 842. These facts are indeed
"beyond dispute,"
ante, at 844, but they do not contradict
anything that I have said. Although the United States obviously is
a Nation, and although it obviously has citizens, the Constitution
does not call for Members of Congress to be elected by the
undifferentiated national citizenry; indeed, it does not recognize
any mechanism at all (such as a national referendum) for action by
the undifferentiated people of the Nation as a whole. See
supra, at 848849. Even at the level of national politics,
then, there always remains a meaningful distinction between someone
who is a citizen of the United States and of Georgia and someone
who is a citizen of the United States and of Massachusetts. The
Georgia citizen who is unaware of this distinction will have it
pointed out to him as soon as he tries to vote in a Massachusetts
congressional election.
In short, while the majority is correct that the Framers
expected the selection process to create a "direct link" between
Members of the House of Representatives and the people,
ante, at 803, the link was between the Representatives from
each State and the people of that State; the people of Georgia have
no say over whom the people of Massachusetts select to represent
them in Congress. This arrange-
860
ment must baffle the majority,S whose understanding of Congress
would surely fit more comfortably within a system of nationwide
elections. But the fact remains that when it comes to the selection
of Members of Congress, the people of each State have retained
their independent political identity. As a result, there is
absolutely nothing strange about the notion that the people of the
States or their state legislatures possess "reserved" powers in
this area.
The majority seeks support from the Constitution's specification
that Members of Congress "shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of
the United States." Art. I, § 6, cl. 1; see
ante, at 804.
But the fact that Members of Congress draw a federal salary once
they have assembled hardly means that the people of the States lack
reserved powers over the selection of their representatives.
Indeed, the historical evidence about the compensation provision
suggests that the States' reserved powers may even extend beyond
the selection stage. The majority itself indicates that if the
Constitution had made no provision for congressional compensation,
this topic would have been "left to state legislatures."
Ante, at 809; accord, 1 Farrand 215-216 (remarks of James
Madison and George Mason);
id., at 219, n. *. Likewise,
Madison specifically indicated that even with the compensation
provision in place, the individual States still
8The majority even suggests that congressional elections do not
really work in this way, because each House of Congress has the
power to judge its Members' qualifications. See
ante, at 804
(citing Art. I, § 5, cl. 1). But the power to act as "Judge" under
Art. I, § 5, is merely the power to apply pre-existing
qualifications to which the people of each State have consented.
See
Powell v.
McCormack, 395 U. S. 486 (1969).
Whether or not § 5 directs each House to judge state-law
disqualifications as well as those contained in the Constitution,
see
infra, at 895, it is clear that neither House may
exclude a representative from Massachusetts for failure to meet a
qualification that the people of Massachusetts have not
accepted.
861
enjoyed the reserved power to supplement the federal salary. 3
id., at 315 (remarks at the Virginia ratifying
convention).
As for the fact that a State has no reserved power to establish
qualifications for the office of President, see
ante, at
803-804, it surely need not follow that a State has no reserved
power to establish qualifications for the Members of Congress who
represent the people of that State. Because powers are reserved to
the States "respectively," it is clear that no State may legislate
for another State: Even though the Arkansas Legislature enjoys the
reserved power to pass a minimum-wage law for Arkansas, it has no
power to pass a minimum-wage law for Vermont. For the same reason,
Arkansas may not decree that only Arkansas citizens are eligible to
be President of the United States; the selection of the President
is not up to Arkansas alone, and Arkansas can no more prescribe the
qualifications for that office than it can set the qualifications
for Members of Congress from Florida. But none of this suggests
that Arkansas cannot set qualifications for Members of Congress
from Arkansas.
In fact, the Constitution's treatment of Presidential elections
actively contradicts the majority's position. While the individual
States have no "reserved" power to set qualifications for the
office of President, we have long understood that they do have the
power (as far as the Federal Constitution is concerned) to set
qualifications for their Presidential electors-the delegates that
each State selects to represent it in the electoral college that
actually chooses the Nation's chief executive. Even respondents do
not dispute that the States may establish qualifications for their
delegates to the electoral college, as long as those qualifications
pass muster under other constitutional provisions (primarily the
First and Fourteenth Amendments). See
Williams v.
Rhodes, 393 U.
S. 23, 29 (1968);
McPherson v.
Blacker, 146 U. S. 1, 27-36 (1892).
As the majority cannot argue that the Consti-
862
tution affirmatively grants this power,9 the power must be one
that is "reserved" to the States. It necessarily follows that the
majority's understanding of the Tenth Amendment is incorrect, for
the position of Presidential elector surely " 'springes] out of the
existence of the national government.'" See
ante, at
802.
3
In a final effort to deny that the people of the States enjoy
"reserved" powers over the selection of their representatives in
Congress, the majority suggests that the Constitution expressly
delegates to the States certain powers over congressional
elections. See
ante, at 805. Such delegations of power, the
majority argues, would be superfluous if the people of the States
enjoyed reserved powers in this area.
Only one constitutional provision-the Times, Places and Manner
Clause of Article I, § 4-even arguably supports the majority's
suggestion. It reads:
"The 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, except as to the Places of chusing
Senators."
Contrary to the majority's assumption, however, this Clause does
not delegate any authority to the States. Instead, it simply
imposes a duty upon them. The majority gets it exactly right: By
specifying that the state legislatures "shall" prescribe the
details necessary to hold congressional elections, the Clause
"expressly requires action by the States."
9 The only provision that might conceivably do so is Article II,
§ 1, which recognizes the authority of state legislatures to
specify the "Manner" in which a State appoints its Presidential
electors. But if a qualifications law is a "Manner" regulation for
purposes of this Clause, then it is also a "Manner" regulation for
purposes of Article I, § 4-which would mean that the Constitution
specifically recognizes the power of both the States and the
Congress to set qualifications for Senators and
Representatives.
863
See
ante, at 804. This command meshes with one of the
principal purposes of Congress' "make or alter" power: to ensure
that the States hold congressional elections in the first place, so
that Congress continues to exist. As one reporter summarized a
speech made by John Jay at the New York ratifying convention:
"[E]very government was imperfect, unless it had a power of
preserving itself. Suppose that, by design or accident, the states
should neglect to appoint representatives; certainly there
should be some constitutional remedy for this evil. The obvious
meaning of the paragraph was, that, if this neglect should take
place, Congress should have power, by law, to support the
government, and prevent the dissolution of the Union. [Jay]
believed this was the design of the federal Convention." 2 Elliot
326 (emphasis in original).lO
Constitutional provisions that impose affirmative duties on the
States are hardly inconsistent with the notion of reserved
powers.
10 Accord,
e. g., 2 Elliot 24 (remarks of Caleb
Strong at the Massachusetts ratifying convention) ("[I]f the
legislature of a state should refuse to make such regulations, the
consequence will be, that the representatives will not be chosen,
and the general government will be dissolved. In such case, can
gentlemen say that a power to remedy the evil is not necessary to
be lodged somewhere? And where can it be lodged but in Congress?");
2 Documentary History of the Ratification of the Constitution 400
(M. Jensen ed. 1976) (notes of Anthony Wayne at the Pennsylvania
ratifying convention) ("4th section occasioned by an eventual
invasion, insurrection, etc."); The Federalist No. 59, at
363 (Hamilton) (observing that if not subject to any checks, the
States "could at any moment annihilate [the Federal Government] by
neglecting to provide for the choice of persons to administer its
affairs").
These statements about the Clause's purposes also help refute
the majority's claim that it was bizarre for the Framers to leave
the States relatively free to enact qualifications for
congressional office while simultaneously giving Congress "make or
alter" power over the States' time, place, and manner regulations.
See
infra, at 896-898.
864
Of course, the second part of the Times, Places and Manner
Clause does grant a power rather than impose a duty. As its
contrasting uses of the words "shall" and "may" confirm, however,
the Clause grants power exclusively to Congress, not to the States.
If the Clause did not exist at all, the States would still be able
to prescribe the times, places, and manner of holding congressional
elections; the deletion of the provision would simply deprive
Congress of the power to override these state regulations.
The majority also mentions Article II, § 1, cl. 2: "Each State
shall appoint, in such Manner as the Legislature thereof may
direct, a Number of [Presidential] Electors, equal to the whole
Number of Senators and Representatives to which the State may be
entitled in the Congress .... " But this Clause has nothing to do
with congressional elections, and in any event it, too, imposes an
affirmative obligation on the States. In fact, some such barebones
provision was essential in order to coordinate the creation of the
electoral college. As mentioned above, moreover, it is uncontested
that the States enjoy the reserved power to specify qualifications
for the Presidential electors who are chosen pursuant to this
Clause. See
supra, at 861-862.
Respondent Thornton seeks to buttress the majority's position
with Article I, § 2, cl. 1, which provides:
"The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States, and
the Electors in each State shall have the Qualifications requisite
for Electors of the most numerous Branch of the State
Legislature."
According to respondent Thornton, this provision "grants States
authority to prescribe the qualifications of [voters]" in
congressional elections. Brief for Respondent Congressman Ray
Thornton 4. If anything, however, the Clause
limits the
power that the States would otherwise enjoy. Though it does leave
States with the ability to control who may vote
865
in congressional elections, it has the effect of restricting
their authority to establish special requirements that do not apply
in elections for the state legislature.
Our case law interpreting the Clause affirmatively supports the
view that the States enjoy reserved powers over congressional
elections. We have treated the Clause as a one-way ratchet: While
the requirements for voting in congressional elections cannot be
more onerous than the requirements for voting in elections for the
most numerous branch of the state legislature, they can be less so.
See
Tashjian v.
Republican Party of Conn., 479 U. S. 208, 225229
(1986). If this interpretation of the Clause is correct, it means
that even with the Clause in place, States still have partial
freedom to set special voting requirements for congressional
elections. As this power is not granted in Article I, it must be
among the "reserved" powers.
II
I take it to be established, then, that the people of Arkansas
do enjoy "reserved" powers over the selection of their
representatives in Congress. Purporting to exercise those reserved
powers, they have agreed among themselves that the candidates
covered by § 3 of Amendment 73-those whom they have already elected
to three or more terms in the House of Representatives or to two or
more terms in the Senate-should not be eligible to appear on the
ballot for reelection, but should nonetheless be returned to
Congress if enough voters are sufficiently enthusiastic about their
candidacy to write in their names. Whatever one might think of the
wisdom of this arrangement, we may not override the decision of the
people of Arkansas unless something in the Federal Constitution
deprives them of the power to enact such measures.
The majority settles on "the Qualifications Clauses" as the
constitutional provisions that Amendment 73 violates. See
ante, at 806. Because I do not read those provisions to
im-
866
pose any unstated prohibitions on the States, it is unnecessary
for me to decide whether the majority is correct to identify
Arkansas' ballot-access restriction with laws fixing true term
limits or otherwise prescribing "qualifications" for congressional
office. As I discuss in Part A below, the Qualifications Clauses
are merely straightforward recitations of the minimum eligibility
requirements that the Framers thought it essential for every Member
of Congress to meet. They restrict state power only in that they
prevent the States from
abolishing all eligibility
requirements for membership in Congress.
Because the text of the Qualifications Clauses does not support
its position, the majority turns instead to its vision of the
democratic principles that animated the Framers. But the majority's
analysis goes to a question that is not before us: whether Congress
has the power to prescribe qualifications for its own members. As I
discuss in Part B, the democratic principles that contributed to
the Framers' decision to withhold this power from Congress do not
prove that the Framers also deprived the people of the States of
their reserved authority to set eligibility requirements for their
own representatives.
In Part C, I review the majority's more specific historical
evidence. To the extent that they bear on this case, the records of
the Philadelphia Convention affirmatively support my unwillingness
to find hidden meaning in the Qualifications Clauses, while the
surviving records from the ratification debates help neither side.
As for the postratification period, five States supplemented the
constitutional disqualifications in their very first election laws.
The historical evidence thus refutes any notion that the
Qualifications Clauses were generally understood to be exclusive.
Yet the majority must establish just such an understanding in order
to justify its position that the Clauses impose unstated
prohibitions on the States and the people. In my view, the
historical evidence is simply inadequate to warrant the
majority's
867
conclusion that the Qualifications Clauses mean anything more
than what they say.
A
The provisions that are generally known as the Qualifications
Clauses read as follows:
"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." Art. I, § 2,
cl. 2.
"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." Art. I, § 3, cl. 3.
Later in Article I, the "Ineligibility Clause" imposes another
nationwide disqualification from congressional office: "[N]o Person
holding any Office under the United States, shall be a Member of
either House during his Continuance in Office." § 6, cl. 2.
The majority is quite correct that the "negative phrasing" of
these Clauses has little relevance. See
ante, at 792, n. 8.
The Qualifications Clauses would mean the same thing had they been
enacted in the form that the Philadelphia Convention referred them
to the Committee of Style:
"Every Member of the House of Representatives shall be of the
age of twenty-five years at least; shall have been a citizen of the
United States for at least seven years before his election; and
shall be, at the time of his election, an inhabitant of the State
in which he shall be chosen." 2 Farrand 565.
See also
id., at 567 (same phrasing for Senate
Qualifications Clause). But these different formulations-whether
negative or affirmative-merely establish
minimum
qualifica-
868
tions. They are quite different from an
exclusive
formulation, such as the following:
"Every Person who shall have attained to the age of twenty five
Years, and been seven Years a Citizen of the United States, and who
shall, when elected, be an Inhabitant of that State in which he
shall be chosen, shall be eligible to be a Representative."
At least on their face, then, the Qualifications Clauses do
nothing to prohibit the people of a State from establishing
additional eligibility requirements for their own
representatives.
Joseph Story thought that such a prohibition was nonetheless
implicit in the constitutional list of qualifications, because
"[f]rom the very nature of such a provision, the affirmation of
these qualifications would seem to imply a negative of all others."
1 Commentaries on the Constitution of the United States § 624
(1833); see also
ante, at 793, n. 9. This argument rests on
the maxim
expressio unius est exclusio alterius. When the
Framers decided which qualifications to include in the
Constitution, they also decided not to include any other
qualifications in the Constitution. In Story's view, it would
conflict with this latter decision for the people of the individual
States to decide, as a matter of state law, that they would like
their own representatives in Congress to meet additional
eligibility requirements.
To spell out the logic underlying this argument is to expose its
weakness. Even if one were willing to ignore the distinction
between requirements enshrined in the Constitution and other
requirements that the Framers were content to leave within the
reach of ordinary law, Story's application of the
expressio
unius maxim takes no account of federalism. At most, the
specification of certain nationwide disqualifications in the
Constitution implies the negation of other
nationwide
disqualifications; it does not imply that individual States or
their people are barred from adopting their own
869
disqualifications on a state-by-state basis. Thus, the one
delegate to the Philadelphia Convention who voiced anything
approaching Story's argument said only that a recital of
qualifications in the Constitution would imply that
Congress
lacked any qualification-setting power. See 2 Farrand 123 (remarks
of John Dickinson); cf.
ante, at 793, n. 9, and 815-816, n.
27.
The Qualifications Clauses do prevent the individual States from
abolishing all eligibility requirements for Congress. This
restriction on state power reflects the fact that when the people
of one State send immature, disloyal, or unknowledgeable
representatives to Congress, they jeopardize not only their own
interests but also the interests of the people of other States.
Because Congress wields power over all the States, the people of
each State need some guarantee that the legislators elected by the
people of other States will meet minimum standards of competence.
The Qualifications Clauses provide that guarantee: They list the
requirements that the Framers considered essential to protect the
competence of the National Legislature.ll
If the people of a State decide that they would like their
representatives to possess additional qualifications, however, they
have done nothing to frustrate the policy behind the Qualifications
Clauses. Anyone who possesses all of the constitutional
qualifications, plus some qualifications required by state law,
still has all of the federal qualifications.
11 Thus, the age requirement was intended to ensure that Members
of Congress were people of mature judgment and experience. See,
e. g., 1 Farrand 375 (remarks of George Mason at the
Philadelphia Convention); 3
id., at 147 (remarks of James
McHenry before the Maryland House of Delegates). The citizenship
requirement was intended both to ensure that Members of Congress
were familiar with the country and that they were not unduly
susceptible to foreign influence. See,
e. g., 2
id., at 216 (remarks of George Mason). The inhabitancy
requirement was intended to produce a National Legislature whose
Members, collectively, had a local knowledge of all the States.
See,
e. g., The Federalist No. 56 (Madison). The
Ineligibility Clause was intended to guard against corruption. See,
e. g., 1 Farrand 381 (remarks of Alexander
Hamilton).
870
Accordingly, the fact that the Constitution specifies certain
qualifications that the Framers deemed necessary to protect the
competence of the National Legislature does not imply that it
strips the people of the individual States of the power to protect
their own interests by adding other requirements for their own
representatives.
The people of other States could legitimately complain if the
people of Arkansas decide, in a particular election, to send a
6-year-old to Congress. But the Constitution gives the people of
other States no basis to complain if the people of Arkansas elect a
freshman representative in preference to a long-term incumbent.
That being the case, it is hard to see why the rights of the people
of other States have been violated when the people of Arkansas
decide to enact a more general disqualification of long-term
incumbents. Such a disqualification certainly is subject to
scrutiny under other constitutional provisions, such as the First
and Fourteenth Amendments. But as long as the candidate whom they
send to Congress meets the constitutional age, citizenship, and
inhabitancy requirements, the people of Arkansas have not violated
the Qualifications Clauses.
This conclusion is buttressed by our reluctance to read
constitutional provisions to preclude state power by negative
implication. The very structure of the Constitution counsels such
hesitation. After all, § 10 of Article I contains a brief list of
express prohibitions on the States. Cf.
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 517-519
(1992) (STEVENS, J.) (applying the
expressio unius maxim to
conclude that Congress' inclusion of an express pre-emption clause
in a federal statute implies that state laws beyond the reach of
that clause are not pre-empted);
Nevada v.
Hall, 440
U. S. 410, 425 (1979) (STEVENS, J.) (suggesting that in light of
the Tenth Amendment and the Constitution's express prohibitions on
the States, "caution should be exercised before concluding that
unstated limitations on state power were intended by the Framers").
Many of the prohibitions listed in
871
§ 10, moreover, might have been thought to be implicit in other
constitutional provisions or in the very nature of our federal
system. Compare,
e. g., Art. II, § 2, cl. 2 ("[The
President] shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties"), and Art. I, § 8, cl. 5 ("The
Congress shall have Power ... [t]o coin Money"), with Art. I, § 10,
cl. 1 ("No State shall enter into any Treaty" and "No State shall
... coin Money"); see also Art. VI, cl. 2 (explicitly declaring
that state law cannot override the Constitution). The fact that the
Framers nonetheless made these prohibitions express confirms that
one should not lightly read provisions like the Qualifications
Clauses as implicit deprivations of state power. See generally
Barron ex rel. Tiernan v.
Mayor of Baltimore, 7 Pet.
243, 249 (1833).12
The majority responds that "a patchwork of state qualifications"
would "undermin[e] the uniformity and the national character that
the Framers envisioned and sought to ensure."
Ante, at 822.
Yet the Framers thought it perfectly consistent with the "national
character" of Congress for the Senators and Representatives from
each State to be chosen by the legislature or the people of that
State. The majority never explains why Congress' fundamental
character permits this state-centered system, but nonetheless
prohibits
12 The principle that the Constitution rests on the consent of
the people of the States points in the same direction. Both the
process of selecting delegates to the Philadelphia Convention and
the ratification procedure erected by Article VII were designed to
let the States and the people of the States protect their
interests. Lest those protections be evaded, one should not be
quick to read the Qualifications Clauses as imposing unstated
prohibitions that pre-empt all state qualifications laws. Cf. L.
Tribe, American Constitutional Law § 6-25, p. 480 (2d ed. 1988)
(arguing that courts should hesitate to read federal statutes to
pre-empt state law, because "to give the state-displacing weight of
federal law to mere congressional
ambiguity would evade the
very procedure for lawmaking on which
Garcia [v.
San
Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985)]
relied to protect states' interests");
Gregory v.
Ashcroft, 501 U. S. 452, 464 (1991) (applying this
argument).
872
the people of the States and their state legislatures from
setting any eligibility requirements for the candidates who seek to
represent them.
As for the majority's related assertion that the Framers
intended qualification requirements to be uniform, this is a
conclusion, not an argument. Indeed, it is a conclusion that the
Qualifications Clauses themselves contradict. At the time of the
framing, and for some years thereafter, the Clauses' citizenship
requirements incorporated laws that varied from State to State.
Thus, the Qualifications Clauses themselves made it possible that a
person would be qualified to represent State
A in Congress
even though a similarly situated person would not be qualified to
represent State
B.
To understand this point requires some background. Before the
Constitution was adopted, citizenship was controlled entirely by
state law, and the different States established different criteria.
See J. Kettner, Development of American Citizenship, 1608-1870, pp.
213-218 (1978). Even after the Constitution gave Congress the power
to "establish an uniform Rule of Naturalization ... throughout the
United States," Art. I, § 8, cl. 4, Congress was under no
obligation to do so, and the Framers surely expected state law to
continue in full force unless and until Congress acted. Cf.
Sturges v.
Crowninshield, 4 Wheat. 122, 196 (1819)
(so interpreting the other part of § 8, cl. 4, which empowers
Congress to establish "uniform Laws on the subject of
Bankruptcies").13 Accordingly, the constitutional requirement
that
13 Even when Congress enacted the first federal naturalization
law in 1790, it left open the possibility that the individual
States could establish more lenient standards of their own for
admitting people to citizenship. While Hamilton had suggested that
Congress' power to "establish an uniform Rule" logically precluded
the States from deviating downward from the rule that Congress
established, see The Federalist No. 32, at 199, the early cases on
this question took the opposite view. See
Collet v.
Collet, 2 Dall. 294, 296
(CC Pa. 1792) (Wilson,
Blair, and Peters, JJ.). States therefore continued to enact
naturalization laws of their own until 1795,
873
Members of Congress be United States citizens meant different
things in different States. The very first contestedelection case
in the House of Representatives, which involved the citizenship of
a would-be Congressman from South Carolina, illustrates this
principle. As Representative James Madison told his colleagues, "I
take it to be a clear point, that we are to be guided, in our
decision, by the laws and constitution of South Carolina, so far as
they can guide us; and where the laws do not expressly guide us, we
must be guided by principles of a general nature .... " Cases of
Contested Elections in Congress 32 (M. Clarke & D. Hall eds.
1834) (reporting proceedings from May 22, 1789).
Even after Congress chose to exercise its power to prescribe a
uniform route to naturalization, the durational element of the
citizenship requirement in the Qualifications Clauses ensured that
variances in state law would continue to matter. Thus, in 1794 the
Senate refused to seat Albert Gallatin because, owing to the
individual peculiarities of the laws of the two relevant States, he
had not been a citizen for the required nine years.
Id., at
859-862, 867 (reporting proceedings from February 20 and 28,
1794).
Even if the Qualifications Clauses had not themselves
incorporated nonuniform requirements, of course, there would still
be no basis for the assertion of the plurality below that they
mandate "uniformity in qualifications." See 316 Ark. 251, 265, 872
S. W. 2d 349, 356 (1994). The Clauses wholly omit the exclusivity
provision that, according to both the plurality below and today's
majority, was their central focus. In fact, neither the text nor
the apparent purpose of the Qualifications Clauses does anything to
refute Thomas Jefferson's elegant legal analysis:
when Congress passed an exclusive naturalization law. See J.
Kettner, Development of American Citizenship, 1608-1870, pp.
242-243 (1978).
874
"Had the Constitution been silent, nobody can doubt but that the
right to prescribe all the qualifications and disqualifications of
those they would send to represent them, would have belonged to the
State. So also the Constitution might have prescribed the whole,
and excluded all others. It seems to have preferred the middle way.
It has exercised the power in part, by declaring some
disqualifications .... But it does not declare, itself, that the
member shall not be a lunatic, a pauper, a convict of treason, of
murder, of felony, or other infamous crime, or a non-resident of
his district; nor does it prohibit to the State the power of
declaring these, or any other disqualifications which its
particular circumstances may call for; and these may be different
in different States. Of course, then, by the tenth amendment, the
power is reserved to the State." Letter to Joseph C. Cabell (Jan.
31, 1814), in 14 Writings of Thomas Jefferson 82-83 (A. Lipscomb
ed. 1904).14
B
Although the Qualifications Clauses neither state nor imply the
prohibition that it finds in them, the majority infers from the
Framers' "democratic principles" that the Clauses must have been
generally understood to preclude the people of the States and their
state legislatures from prescribing any additional qualifications
for their representatives in Congress. But the majority's evidence
on this point establishes only two more modest propositions: (1)
the Framers did not want the Federal Constitution itself to impose
a
14 The majority notes Jefferson's concession that state power to
supplement the Qualifications Clauses was "one of the doubtful
questions on which honest men may differ with the purest of
motives." See
ante, at 813, n. 24; 14 Writings of Thomas
Jefferson 83 (A. Lipscomb ed. 1904). But while Jefferson cautioned
against impugning the motives of people who might disagree with his
position, his use of the phrase "[o]f course" suggests that he
himself did not entertain serious doubts of its correctness.
875
broad set of disqualifications for congressional office, and (2)
the Framers did not want the Federal Congress to be able to
supplement the few disqualifications that the Constitution does set
forth. The logical conclusion is simply that the Framers did not
want the people of the States and their state legislatures to be
constrained by too many qualifications imposed at the national
level. The evidence does not support the majority's more sweeping
conclusion that the Framers intended to bar the people of the
States and their state legislatures from adopting additional
eligibility requirements to help narrow their own choices.
I agree with the majority that Congress has no power to
prescribe qualifications for its own Members. This fact, however,
does not show that the Qualifications Clauses contain a hidden
exclusivity provision. The reason for Congress' incapacity is not
that the Qualifications Clauses deprive Congress of the authority
to set qualifications, but rather that nothing in the Constitution
grants Congress this power. In the absence of such a grant,
Congress may not act. But deciding whether the Constitution denies
the qualification-setting power to the States and the people of the
States requires a fundamentally different legal analysis.
Despite the majority's claims to the contrary, see
ante,
at 796-797, n. 12, this explanation for Congress' incapacity to
supplement the Qualifications Clauses is perfectly consistent with
the reasoning of
Powell v.
McCormack, 395 U. S. 486 (1969).
Powell concerned the scope of Article I, § 5, which provides
that "[e]ach House [of Congress] shall be the Judge of the
Elections, Returns and Qualifications of its own Members." As the
majority itself recognizes, "[t]he principal issue [in
Powell] was whether the power granted to each House in Art.
I, § 5, ... includes the power to impose qualifications other than
those set forth in the text of the Constitution."
Ante, at
788. Contrary to the majority's suggestion, then, the critical
question in
Powell was whether § 5 conferred a
qualification-setting power-not whether the Quali-
876
fications Clauses took it away. Compare
Powell, supra, at
519 (describing the question before the Court as "what power the
Constitution confers upon the House through Art. I, § 5"), and 536
(describing the Court's task as "determining the meaning of Art. I,
§ 5") with
ante, at 789, and 792, n. 8 (suggesting that
Powell held that the Qualifications Clauses "limit the power
of the House to impose additional qualifications"). See also
Buckley v.
Valeo, 424 U. S. 1, 133 (1976)
(taking my view of
Powell).
Powell's analysis confirms this point. After summarizing
a large quantity of historical material bearing on the original
understanding of what it meant for a legislature to act as "the
Judge" of the qualifications of its members, see 395 U. S., at
521-531,
Powell went on to stress that the Philadelphia
Convention specifically rejected proposals to grant Congress the
power to pass laws prescribing additional qualifications for its
Members, and that the Convention rejected these proposals on the
very same day that it approved the precursor of § 5. See
id., at 533-536. Given this historical evidence, the
Powell Court refused to read § 5 as empowering the House to
prescribe such additional qualifications in its capacity as
"Judge." And if nothing in the Constitution gave the House this
power, it inevitably followed that the House could not exercise it.
Despite the majority's claims, then,
Powell itself rested on
the proposition that the institutions of the Federal Government
enjoy only the powers that are granted to them. See also
ante, at 793, n. 9 (describing the Qualifications Clauses
merely as an independent basis for the result reached in
Powell).15
15 The majority also errs in its interpretation of
Nixon
v.
United States, 506 U. S. 224 (1993). See
ante, at 796, n. 12. In dictum,
Nixon did refer to
"the fixed meaning of '[q]ualifications' set forth in Art. I, § 2."
506 U. S., at 237. But as both the surrounding context and the
internal punctuation of this passage make clear,
Nixon was
referring to the meaning of the word "Qualifications" in § 5; that
term, after all, does not even appear in the House Qualifications
Clause of § 2. Thus,
Nixon merely said that § 5 directs the
House to judge the qualifications "set forth in Art. I, § 2," and
not qualifications of its own invention. See also
infra, at
895. There
877
The fact that the Framers did not grant a qualificationsetting
power to Congress does not imply that they wanted to bar its
exercise at the state level. One reason why the Framers decided not
to let Congress prescribe the qualifications of its own Members was
that incumbents could have used this power to perpetuate themselves
or their ilk in office. As Madison pointed out at the Philadelphia
Convention, Members of Congress would have an obvious conflict of
interest if they could determine who may run against them. 2
Farrand 250; see also
ante, at 793-794, n. 10. But neither
the people of the States nor the state legislatures would labor
under the same conflict of interest when prescribing qualifications
for Members of Congress, and so the Framers would have had to use a
different calculus in determining whether to deprive them of this
power.
As the majority argues, democratic principles also contributed
to the Framers' decision to withhold the qualificationsetting power
from Congress. But the majority is wrong to suggest that the same
principles must also have led the Framers to deny this power to the
people of the States and the state legislatures. In particular, it
simply is not true that "the source of the qualification is of
little moment in assessing the qualification's restrictive impact."
Ante, at 820. There is a world of difference between a
self-imposed constraint and a constraint imposed from above.
Congressional power over qualifications would have enabled the
representatives from some States, acting collectively in the
National Legislature, to prevent the people of another State from
electing their preferred candidates. The John Wilkes episode in
18th-century England illustrates the problems that might result. As
the majority mentions, Wilkes' district repeatedly elected him to
the House of Commons, only to have a majority of the
representatives of other
would have been no occasion for
Nixon to extend
Powell: The only point of its discussion was to explain why
the question at issue in
Powell was justiciable, while the
question at issue in
Nixon (which concerned impeachment) was
not.
878
districts frustrate their will by voting to exclude him. See
ante, at 790. Americans who remembered these events might
well have wanted to prevent the National Legislature from fettering
the choices of the people of any individual State (for the House of
Representatives) or their state legislators (for the Senate).
Yet this is simply to say that qualifications should not be set
at the national level for offices whose occupants are selected at
the state level. The majority never identifies the democratic
principles that would have been violated if a state legislature, in
the days before the Constitution was amended to provide for the
direct election of Senators, had imposed some limits of its own on
the field of candidates that it would consider for appointment.16
Likewise, the majority does not explain why democratic principles
prohibit the people of a State from adopting additional eligibility
requirements to help narrow their choices among candidates seeking
to represent them in the House of Representatives. Indeed, the
invocation of democratic principles to invalidate Amendment 73
seems particularly difficult in the present case, because Amendment
73 remains fully within the control of the people of Arkansas. If
they wanted to repeal it (despite the 20-point margin by which they
enacted it less than three years ago), they could do so by a simple
majority vote. See Ark. Const., Arndt. 7.
The majority appears to believe that restrictions on eligibility
for office are inherently undemocratic. But the Qualifications
Clauses themselves prove that the Framers did not share this view;
eligibility requirements to which the people of the States consent
are perfectly consistent with the Fram-
16 Oregon, for instance, pioneered a system in which the state
legislature bound itself to appoint the candidates chosen in a
statewide vote of the people. See Hills, A Defense of State
Constitutional Limits on Federal Congressional Terms, 53 U. Pitt.
L. Rev. 97, 108 (1991). The majority is in the uncomfortable
position of suggesting that this system violated "democratic
principles."
879
ers' scheme. In fact, we have described "the authority of the
people of the States to determine the qualifications of their most
important government officials" as "an authority that lies at the
heart of representative government."
Gregory v.
Ashcroft, 501
U. S. 452, 463 (1991) (internal quotation marks omitted)
(refusing to read federal law to preclude States from imposing a
mandatory retirement age on state judges who are subject to
periodic retention elections). When the people of a State
themselves decide to restrict the field of candidates whom they are
willing to send to Washington as their representatives, they simply
have not violated the principle that "the people should choose whom
they please to govern them." See 2 Elliot 257 (remarks of Alexander
Hamilton at the New York Convention).
At one point, the majority suggests that the principle
identified by Hamilton encompasses not only the electorate's right
to choose, but also "the egalitarian concept that the opportunity
to be elected [is] open to all." See
ante, at 794; see also
ante, at 819-820. To the extent that the second idea has any
content independent of the first, the majority apparently would
read the Qualifications Clauses to create a personal right to be a
candidate for Congress, and then to set that right above the
authority of the people of the States to prescribe eligibility
requirements for public office. But we have never suggested that
"the opportunity to be elected" is open even to those whom the
voters have decided not to elect. On that rationale, a candidate
might have a right to appear on the ballot in the general election
even though he lost in the primary. But see
Storer v.
Brown, 415 U.
S. 724, 726, n. 16 (1974); see also
Bullock v.
Carter, 405 U. S. 134, 142-143 (1972) (rejecting the
proposition that there is any fundamental right to be a candidate,
separate and apart from the electorate's right to vote). Thus, the
majority ultimately concedes that its "egalitarian concept" derives
entirely from the electorate's right to choose. See
ante, at
794, n. 11; see also
ante, at 819 (deriving the
"egalitarian
880
ideal" from the proposition that the Qualifications Clauses do
not unduly" 'fetter the judgment ... of the people' " (quoting The
Federalist No. 57, at 351)). If the latter is not violated, then
neither is the former.
In seeking ratification of the Constitution, James Madison did
assert that "[u]nder these reasonable limitations [set out in the
House Qualifications Clause], the door of this part of the federal
government is open to merit of every description .... " The
Federalist No. 52, at 326. The majority stresses this assertion,
and others to the same effect, in support of its "egalitarian
concept." See
ante, at 794, 819-820, and n. 30. But there is
no reason to interpret these statements as anything more than
claims that the Constitution itself imposes relatively few
disqualifications for congressional officeP One should not lightly
assume that Madi-
17For instance, the majority quotes Noah Webster's observation
that under the Constitution, "the places of senators are wisely
left open to all persons of suitable age and merit, and who have
been citizens of the United States for nine years." See
ante, at 820, n. 30 (citing "A Citizen of America" (Oct. 17,
1787), in 1 Debate on the Constitution 129, 142 (B. Bailyn ed.
1993) (hereinafter Bailyn)). But there is no reason to read Webster
as denying the power of state legislatures to pass resolutions
limiting the field of potential candidates that they would consider
for appointment to the Senate. Indeed, it seems implausible that
Webster would have been invoking the majority's vision of
"democratic principles" in support of the constitutional provisions
calling for Senators to be appointed by the various state
legislatures rather than being elected directly by the people of
the States.
Similarly, the majority quotes a newspaper piece written by John
Stevens, Jr., to the people of New York. See
ante, at
819-820. But Stevens gave the following explanation for his
assertion that "[n]o man who has real merit ... need despair" under
the system erected by the Constitution:
"He first distinguishes himself amongst his neighbours at
township and county meeting; he is next sent to the State
Legislature. In this theatre his abilities ... are ... displayed to
the views of every man in the State: from hence his ascent to a
seat in Congress becomes easy and sure." "Americanus," Daily
Advertiser, Dec. 12, 1787, in 1 Bailyn 487, 492. As the States
indisputably controlled eligibility requirements for membership in
the various state legislatures, and indeed had established some
disquali-
881
son and his colleagues, who were attempting to win support at
the state level for the new Constitution, were proclaiming the
inability of the people of the States or their state legislatures
to prescribe any eligibility requirements for their own
Representatives or Senators. Instead, they were merely responding
to the charge that the Constitution was undemocratic and would lead
to aristocracies in office. Cf.
ante, at 791 (referring to
"the antifederalist charge that the new Constitution favored the
wealthy and well born"). The statement that the qualifications
imposed in the Constitution are not unduly restrictive hardly
implies that the Constitution withdrew the power of the people of
each State to prescribe additional eligibility requirements for
their own Representatives if they so desired.
In fact, the authority to narrow the field of candidates in this
way may be part and parcel of the right to elect Members of
Congress. That is, the right to choose may include the right to
winnow. See Hills, A Defense of State Constitutional Limits on
Federal Congressional Terms, 53 U. Pitt. L. Rev. 97, 107-109
(1991).
To appreciate this point, it is useful to consider the
Constitution as it existed before the Seventeenth Amendment was
adopted in 1913. The Framers' scheme called for the legislature of
each State to choose the Senators from that State. Art. I, § 3, cl.
1. The majority offers no reason to believe that state legislatures
could not adopt prospective rules to guide themselves in carrying
out this responsibility; not only is there no express language in
the Constitution barring legislatures from passing laws to narrow
their choices, but there also is absolutely no basis for inferring
such a prohibition. Imagine the worst-case scenario: a state
legislature, wishing
fications, I do not read Stevens to be saying that they were
barred from doing the same thing with respect to Congress. Without
addressing whether the people of the States may supplement the
Qualifications Clauses, Stevens was merely praising the
Constitution for imposing few such requirements of its own.
882
to punish one of the Senators from its State for his vote on
some bill, enacts a qualifications law that the Senator does not
satisfy. The Senator would still be able to serve out his term; the
Constitution provides for Senators to be chosen for 6-year terms,
Art. I, § 3, cl. 1, and a person who has been seated in Congress
can be removed only if two-thirds of the Members of his House vote
to expel him, § 5, cl. 2. While the Senator would be disqualified
from seeking reappointment, under the Framers' Constitution the
state legislature already enjoyed unfettered discretion to deny him
reappointment anyway. Instead of passing a qualifications law, the
legislature could simply have passed a resolution declaring its
intention to appoint someone else the next time around. Thus, the
legislature's power to adopt laws to narrow its own choices added
nothing to its general appointment power.
While it is easier to coordinate a majority of state legislators
than to coordinate a majority of qualified voters, the basic
principle should be the same in both contexts. Just as the state
legislature enjoyed virtually unfettered discretion over whom to
appoint to the Senate under Art. I, § 3, so the qualified voters of
the State enjoyed virtually unfettered discretion over whom to
elect to the House of Representatives under Art. I, § 2. If there
is no reason to believe that the Framers' Constitution barred state
legislatures from adopting prospective rules to narrow their
choices for Senator, then there is also no reason to believe that
it barred the people of the States from adopting prospective rules
to narrow their choices for Representative. In addition, there
surely is no reason to believe that the Senate Qualifications
Clause suddenly acquired an exclusivity provision in 1913, when the
Seventeenth Amendment was adopted. Now that the people of the
States are charged with choosing both Senators and Representatives,
it follows that they may adopt eligibility requirements for
Senators as well as for Representatives.
883
I would go further, for I see nothing in the Constitution that
precludes the people of each State (if they so desire) from
authorizing their elected state legislators to prescribe
qualifications on their behalf. If the people of a State decide
that they do not trust their state legislature with this power,
they are free to amend their state constitution to withdraw it.
This arrangement seems perfectly consistent with the Framers'
scheme. From the time of the framing until after the Civil War, for
example, the Federal Constitution did not bar state governments
from abridging the freedom of speech or the freedom of the press,
even when those freedoms were being exercised in connection with
congressional elections. It was the state constitutions that
determined whether state governments could silence the supporters
of disfavored congressional candidates, just as it was the state
constitutions that determined whether the States could persecute
people who held disfavored religious beliefs or could expropriate
property without providing just compensation. It would not be at
all odd if the state constitutions also determined whether the
state legislature could pass qualifications statutes.
But one need not agree with me that the people of each State may
delegate their qualification-setting power in order to uphold
Arkansas' Amendment 73. Amendment 73 is not the act of a state
legislature; it is the act of the people of Arkansas, adopted at a
direct election and inserted into the State Constitution. The
majority never explains why giving effect to the people's decision
would violate the "democratic principles" that undergird the
Constitution. Instead, the majority's discussion of democratic
principles is directed entirely to attacking eligibility
requirements imposed on the people of a State by an entity other
than themselves.
The majority protests that any distinction between the people of
the States and the state legislatures is "untenable" and
"astonishing." See
ante, at 809, n. 19. In the limited area
of congressional elections, however, the Framers them-
884
selves drew this distinction: They specifically provided for
Senators to be chosen by the state legislatures and for
Representatives to be chosen by the people. In the context of
congressional elections, the Framers obviously saw a meaningful
difference between direct action by the people of each State and
action by their state legislatures.
Thus, even if one believed that the Framers intended to bar
state legislatures from adopting qualifications laws that restrict
the people's choices, it would not follow that the people
themselves are precluded from agreeing upon eligibility
requirements to help narrow their own choices. To be sure, if the
Qualifications Clauses were exclusive, they would bar all
additional qualifications, whether adopted by popular initiative or
by statute. But the majority simply assumes that if state
legislatures are barred from prescribing qualifications, it must be
because the Qualifications Clauses are exclusive. It would strain
the text of the Constitution far less to locate the bar in Article
I, § 2, and the Seventeenth Amendment instead: One could plausibly
maintain that qualification requirements imposed by state
legislatures violate the constitutional provisions entrusting the
selection of Members of Congress to the people of the States, even
while one acknowledges that qualification requirements imposed by
the people themselves are perfectly constitutional. The majority
never justifies its conclusion that "democratic principles" require
it to reject even this intermediate position.
C
In addition to its arguments about democratic principles, the
majority asserts that more specific historical evidence supports
its view that the Framers did not intend to permit supplementation
of the Qualifications Clauses. But when one focuses on the
distinction between congressional power to add qualifications for
congressional office and the power of the people or their state
legislatures to add such qualifications, one realizes that this
assertion has little basis.
885
In particular, the detail with which the majority recites the
historical evidence set forth in
Powell v.
McCormack,
395 U. S. 486
(1969), should not obscure the fact that this evidence has no
bearing on the question now before the Court. As the majority
ultimately concedes, see
ante, at 792-793, 796, 798, it does
not establish "the Framers' intent that the qualifications in the
Constitution be fixed and exclusive,"
ante, at 790; it shows
only that the Framers did not intend Congress to be able to enact
qualifications laws.18 If any-
18 For instance, the majority quotes at length from the debate
that arose in the Philadelphia Convention when the Committee of
Detail proposed the following clause: "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." See 2
Farrand 179,248-251;
ante, at 790-791. The defeat of this
proposal-like the defeat of Gouverneur Morris' motion to drop the
words "with regard to property" from the clause, so as to empower
Congress to enact qualifications of any sort-simply reflects the
Framers' decision not to grant
Congress the power to
supplement the constitutional qualifications. Considered out of
context, some of James Madison's comments during the debate might
be thought to go farther. See
ibid. But the majority itself
properly dispels this false impression. See
ante, at 793, n.
10; see also
Powell v.
McCormack, 395 U. S., at
534.
Likewise,
Powell drew support from Alexander Hamilton's
comments in The Federalist No. 60, which the majority also quotes.
See
ante, at 791. But as the majority concedes, when
Hamilton wrote that "[t]he qualifications of the persons who may
choose or be chosen [for Congress] ... are defined and fixed in the
Constitution, and are unalterable by the legislature," he was
merely restating his prior observation that the power to set
qualifications "forms no part of the power to be conferred upon the
national government." See The Federalist No. 60, at 371
(emphasis added). Indeed, only if "the legislature" to which
Hamilton was referring is Congress can one make sense of his remark
that the qualifications of voters as well as Congressmen are "fixed
in the Constitution" and "unalterable by the legislature." Hamilton
surely knew that the States or the people of the States control
eligibility for the franchise. See Art. I, § 2, cl. 1.
The majority does omit the context necessary to understand one
aspect of the historical evidence presented in
Powell. The
majority quotes
Powell's observation that "on the eve of the
Constitutional Convention, English precedent stood for the
proposition that 'the law of the land had regulated
886
thing, the solidity of the evidence supporting
Powell's
view that Congress lacks the power to supplement the constitutional
disqualifications merely highlights the weakness of the majority's
evidence that the States and the people of the States also lack
this power.
1
To the extent that the records from the Philadelphia Convention
itself shed light on this case, they tend to hurt the majority's
case. The only evidence that directly bears on the question now
before the Court comes from the Committee of Detail, a five-member
body that the Convention charged with the crucial task of drafting
a Constitution to reflect the decisions that the Convention had
reached during its first two months of work. A document that Max
Farrand described as "[a]n early, perhaps the first, draft of the
committee's work" survived among the papers of George Mason. 1
Farrand xxiii, n. 36. The draft is in the handwriting of
the qualifications of members to serve in parliament' and those
qualifications were 'not occasional but fixed.''' 395 U. S., at 528
(quoting 16 Parliamentary History of England 589, 590 (1769)); see
ante, at 790. The English rule seems of only marginal
relevance: The pre-existing rule in America-that States could add
qualifications for their representatives in Congress, see n. 3,
supra, while Congress itself could not-is surely more
important. But in any event,
Powell did not claim that the
English rule deemed parliamentary qualifications to be fixed in the
country's (unwritten) constitution, beyond the reach of a properly
enacted law. Instead, qualifications were "fixed" rather than
"occasional" only in the sense that neither House of Parliament
could "exclude members-elect for general misconduct not within
standing qualifications."
Powell, 395 U. S., at 528. The
English rule, in other words, was simply that when sitting as the
judge of its members' qualifications, each House of Parliament
could do no more than administer the pre-existing laws that defined
those qualifications, see
id., at 529, for "one House of
Parliament cannot create a disability unknown to the law." T.
Plucknett, Taswell-Langmead's English Constitutional History 585
(11th ed. 1960); cf.
INS v.
Chadha, 462 U. S. 919 (1983).
This history was relevant to
Powell (which dealt with the
grounds on which one House of Congress could exclude a
Member-elect), but it is not relevant to this case.
887
Edmund Randolph, the chairman of the Committee, with emendations
in the hand of John Rutledge, another member of the Committee. As
Professor Farrand noted, "[e]ach item in this document ... is
either checked off or crossed out, showing that it was used in the
preparation of subsequent drafts." 2
id., at 137, n. 6; see
also W. Meigs, The Growth of the Constitution in the Federal
Convention of 1787, pp. I-IX (1900) (providing a facsimile of the
document).
The document is an extensive outline of the Constitution.
Its treatment of the National Legislature is divided into two
parts, one for the "House of Delegates" and one for the Senate. The
Qualifications Clause for the House of Delegates originally read as
follows: "The qualifications of a delegate shall be the age of
twenty five years at least. and citizenship:
and any person
possessing these qualifications may be elected except [blank
space]."
Id., at II (emphasis added). The drafter(s) of this
language apparently contemplated that the Committee might want to
insert some exceptions to the exclusivity provision. But rather
than simply deleting the word "except"-as it might have done if it
had decided to have no exceptions at all to the exclusivity
provision-the Committee deleted the exclusivity provision itself.
In the document that has come down to us, all the words after the
colon are crossed out.
Ibid.
The majority speculates that the exclusivity provision may have
been deleted as superfluous. See
ante, at 815-816, n. 27.19
But the same draft that contained the exclusivity language in the
House Qualifications Clause contained no
19 The majority also argues that in any event, the views of the
members of the Committee "tel[l] us little about the views of the
Convention as a whole."
Ante, at 815, n. 27. But our task is
simply to determine whether at the time of the framing, the
language of the Qualifications Clauses would have been commonly
understood to contain an exclusivity provision. The surviving
records suggest that the members of the Committee of Detail did not
understand the final Qualifications Clauses to be exclusive, and
the majority offers no reason to think that their understanding of
the language was unusual for their time.
888
such language in the Senate Qualifications Clause. See 2 Farrand
141. Thus, the draft appears to reflect a deliberate judgment to
distinguish between the House qualifications and the Senate
qualifications, and to make only the former exclusive. If so, then
the deletion of the exclusivity provision indicates that the
Committee expected neither list of qualifications to be
exclusive.
The majority responds that the absence of any exclusivity
provision in the Committee's draft of the Senate Qualifications
Clause merely reflected the fact that "senators, unlike
Representatives, would not be chosen by popular election."
Ante, at 815, n. 27. I am perfectly prepared to accept this
explanation: The drafter(s) may well have thought that state
legislatures should be prohibited from constricting the people's
choices for the House of Representatives, but that no exclusivity
provision was necessary on the Senate side because state
legislatures would already have unfettered control over the
appointment of Senators. To accept this explanation, however, is to
acknowledge that the exclusivity provision in the Committee's draft
of the House Qualifications Clause was not thought to be mere
surplusage. It is also to acknowledge that the Senate
Qualifications Clause in the Committee's draft-"the qualification
of a senator shall be the age of 25 years at least: citizenship in
the united states: and property to the amount of [blank space]," 2
Farrand 141-did not carry any implicit connotation of exclusivity.
In short, the majority's own explanation for the difference between
the two Qualifications Clauses in the Committee's draft is
fundamentally at odds with the
expressio unius argument on
which the majority rests its holding.
2
Unable to glean from the Philadelphia Convention any direct
evidence that helps its position, the majority seeks signs of the
Framers' unstated intent in the Framers' comments about four
other constitutional provisions. See
ante, at
808-
889
811 (citing Art. I, § 2, cl. 1; § 4, cl. 1; § 5, cl. 1; and § 6,
cl. 1). The majority infers from these provisions that the Framers
wanted "to minimize the possibility of state interference with
federal elections."
Ante, at 808. But even if the majority's
reading of its evidence were correct, the most that one could infer
is that the Framers did not want state legislatures to be able to
prescribe qualifications that would narrow the people's choices.
See
supra, at 883-888. However wary the Framers might have
been of permitting state legislatures to exercise such power, there
is absolutely no reason to believe that the Framers feared letting
the people themselves exercise this power. Cf. The Federalist No.
52, at 326 (Madison) ("It cannot be feared that the people of the
States will alter this [electoral-qualification] part of their
constitutions in such a manner as to abridge the rights secured to
them by the federal Constitution").
In any event, none of the provisions cited by the majority is
inconsistent with state power to add qualifications for
congressional office. First, the majority cites the constitutional
requirement that congressional salaries be "ascertained by Law, and
paid out of the Treasury of the United States." Art. I, § 6, cl. 1.
Like the Qualifications Clauses themselves, however, the salary
provision can be seen as simply another means of protecting the
competence of the National Legislature. As reflected in the
majority's own evidence, see
ante, at 809-810; see also 1
Farrand 373 (remarks of James Madison), one of the recurring themes
of the debate over this provision was that if congressional
compensation were left up to the States, parsimonious States might
reduce salaries so low that only incapable people would be willing
to serve in Congress.
As the majority stresses, some delegates to the Philadelphia
Convention did argue that leaving congressional compensation up to
the various States would give Members of Congress "an improper
dependence" upon the States.
Id., at 216 (remarks of James
Madison);
ante, at 809-810. These
890
delegates presumably did not want state legislatures to be able
to tell the Members of Congress from their State, "Vote against
Bill
A or we will slash your salary"; such a power would
approximate a power of recall, which the Framers denied to the
States when they specified the terms of Members of Congress. The
Framers may well have thought that state power over salary, like
state power to recall, would be inconsistent with the notion that
Congress was a national legislature once it assembled. But state
power over initial eligibility requirements does not raise the same
concerns: It was perfectly coherent for the Framers to leave
selection matters to the state level while providing for Members of
Congress to draw a federal salary once they took office. Thus, the
Compensation Clause seems wholly irrelevant; contrary to the
majority's suggestion, see
ante, at 811, n. 21, it does not
address elections at all.
Second, the majority gives passing mention to the
Elector-Qualifications Clause of Article I, § 2, which specifies
that in each State, the voters in House elections "shall have the
qualifications requisite for Electors of the most numerous Branch
of the State Legislature." But the records of the Philadelphia
Convention provide no evidence for the majority's assertion that
the purpose of this Clause was "to prevent discrimination against
federal electors." See
ante, at 808.20
20 The majority inaccurately reports James Madison's explanation
of the Elector-Qualifications Clause in The Federalist No. 52.
Madison neither mentioned nor addressed the consequences of
"allowing States to differentiate between the qualifications for
state and federal electors." See
ante, at 808. Instead, he
addressed the problems that would have arisen if the Constitution
had assigned control over the qualifications of voters in House
elections to the state legislatures rather than to the people of
each State. It was such an arrangement that, in Madison's view,
"would have rendered too dependent on the State governments that
branch of the federal government which ought to be dependent on the
people alone." The Federalist No. 52, at 326; cf.
ante, at
808. The Elector-Qualifications Clause avoided this problem because
the various state constitutions con-
891
In fact, the Clause may simply have been a natural concomitant
of one of the Framers' most famous decisions. At the Convention,
there was considerable debate about whether Members of the House of
Representatives should be selected by the state legislatures or
directly by the voters of each State. Taken as a whole, the first
Clause of Article I, § 2including the elector-qualifications
provision-implements the Framers' decision. It specifies that the
Representatives from each State are to be chosen by the State's
voters (that is, the people eligible to participate in elections
for the most numerous branch of the state legislature).
Third, the majority emphasizes that under Article I, § 5,
"[e]ach House [of Congress] shall be the Judge of the Elections,
Returns and Qualifications of its own Members." See
ante, at
804, 811, 822. There was no recorded discussion of this provision
in the Philadelphia Convention, and it appears simply to adopt the
practice of England's Parliament. See n. 18,
supra.
According to the majority, however, § 5 implies
trolled who could vote in elections for the most numerous branch
of the state legislature, and no state government could alter these
requirements unless the people of the State (through the state
constitution) decided to let it do so. See The Federalist No. 52,
at 326.
Though one obviously could uphold the action of the people of
Arkansas without reaching this issue, Madison's comments should not
be read to suggest that the Elector-Qualifications Clause bars the
people of a State from delegating their control over voter
qualifications to the state legislature. The Clause itself refutes
this reading; if a state constitution permits the state legislature
to set voter qualifications, and if eligibility for the franchise
in the State therefore turns on statutory rather than
constitutionallaw, federal electors in the State still must meet
the same qualifications as electors for the most numerous branch of
the state legislature. Madison could not possibly have disagreed
with this understanding of the Clause. Instead, he was simply
explaining why, when it came to voter qualifications for House
elections, the Framers had not followed the model of Article I, §
3, cl. 1, and vested ultimate control with the state legislatures
(regardless of what the people of a State might provide in their
state constitutions).
892
that the Framers could not have intended state law ever to
"provide the standard for judging a Member's eligibility."
Ante, at 812.
My conclusion that States may prescribe eligibility requirements
for their Members of Congress does not necessarily mean that the
term "Qualifications," as used in Article I, § 5, includes such
state-imposed requirements. One surely could read the term simply
to refer back to the requirements that the Framers had just listed
in the Qualifications Clauses, and not to encompass whatever
requirements States might add on their own. See
Nixon v.
United States, 506 U. S. 224, 237 (1993)
(dictum) (asserting that the context of § 5 demonstrates that "the
word '[q]ualifications' ... was of a precise, limited nature" and
referred only to the qualifications previously "set forth in Art.
I, § 2"). The Framers had deemed the constitutional qualifications
essential to protect the competence of Congress, and hence the
national interest. It is quite plausible that the Framers would
have wanted each House to make sure that its Members possessed
these qualifications, but would have left it to the States to
enforce whatever qualifications were imposed at the state level to
protect state interests.
But even if this understanding of § 5 is incorrect, I see
nothing odd in the notion that a House of Congress might have to
consider state law in judging the "Qualifications" of its Members.
In fact, § 5 itself refutes the majority's argument. Because it
generally is state law that determines what is necessary to win an
election and whether any particular ballot is valid, each House of
Congress clearly must look to state law in judging the "Elections"
and "Returns" of its Members. I t would hardly be strange if each
House had to do precisely the same thing in judging
"Qualifications." Indeed, even on the majority's understanding of
the Constitution, at the time of the framing all "Qualifications"
questions that turned on issues of citizenship would have been
governed by state law. See
supra, at 872-873.
893
More generally, there is no basis for the majority's assertion
that the Framers would not have charged "federal tribunals" with
the task of "judging ... questions concerning rights which depend
on state law." See
ante, at 812. Cases involving questions
of federal law hardly exhaust the categories of cases that the
Framers authorized the federal courts to decide. See Art. III, § 2,
cl. 1. The founding generation, moreover, seemed to assign
relatively little importance to the constitutional grant of
jurisdiction over "all Cases ... arising under this Constitution,
the Laws of the United States, and Treaties made ... under their
Authority."
Ibid. The First Congress never even implemented
this jurisdictional grant at the trial level; it was not until 1875
that Congress "revolutionized the concept of the federal judiciary"
by giving federal courts broad jurisdiction over suits arising
under federal law. See P. Bator, D. Meltzer, P. Mishkin, & D.
Shapiro, Hart and Wechsler's The Federal Courts and the Federal
System 962 (3d ed. 1988). By contrast, the founding generation
thought it important to implement immediately the constitutional
grant of diversity jurisdiction, in which the rules of decision
generally come entirely from state law. See Judiciary Act of 1789,
1 Stat. 73, 78, 92;
Erie R. Co. v.
Tompkins, 304 U. S. 64, 77-80
(1938).
The fourth and final provision relied upon by the majority is
the Clause giving Congress the power to override state regulations
of "[t]he Times, Places and Manner of holding [congressional]
Elections." Art. I, § 4, cl. 1. From the fact that the Framers gave
Congress the power to "make or alter" these state rules of election
procedure, the majority infers that the Framers would also have
wanted Congress to enjoy override authority with respect to any
matters of substance that were left to the States. See
ante,
at 810811. As Congress enjoys no "make or alter" powers in this
area, the majority concludes that the Framers must not have thought
that state legislatures would be able to enact qualifications
laws.
894
But the Framers provided for congressional override only where
they trusted Congress more than the States. Even respondents
acknowledge that "the primary reason" for the "make or alter" power
was to enable Congress to ensure that States held elections in the
first place. See Tr. of Oral Arg. 51; see also
supra, at
863, and n. 10. The Framers did trust Congress more than the States
when it came to preserving the Federal Government's own existence;
to advance this interest, they had to give Congress the capacity to
prescribe both the date and the mechanics of congressional
elections. As discussed above, however, the Framers trusted the
States more than Congress when it came to setting qualifications
for Members of Congress. See
supra, at 877. Indeed, the
majority itself accepts this proposition. See
ante, at 832
(acknowledging that the Framers were "particularly concerned" about
congressional power to set qualifications).
To judge from comments made at the state ratifying conventions,
Congress' "make or alter" power was designed to serve a
coordination function in addition to ensuring that the States had
at least rudimentary election laws. For instance, George Nicholas
argued at the Virginia Convention that if regulation of the time of
congressional elections had been left exclusively to the States,
"there might have been as many times of choosing as there are
States," and "such intervals might elapse between the first and
last election, as to prevent there being a sufficient number to
form a House." 9 Documentary History of the Ratification of the
Constitution 920 (J. Kaminski and G. Saladino eds. 1990). For this
reason too, if the National Legislature lacked the "make or alter"
power, "it might happen that there should be no Congress[,] ... and
this might happen at a time when the most urgent business rendered
their session necessary."
Ibid.; cf.2 Elliot 535 (remarks of
Thomas McKean at the Pennsylvania ratifying convention) (defending
§ 4 on the ground that congressional elections should be "held on
the same day throughout the United States, to prevent corruption
or
895
undue influence"). Again, however, the desire to coordinate
state election procedures did not require giving Congress power
over qualifications laws.
The structure of the Constitution also undermines the majority's
suggestion that it would have been bizarre for the Framers to give
Congress supervisory authority over state time, place, and manner
regulations but not over state qualifications laws. Although the
Constitution does set forth a few nationwide disqualifications for
the office of Presidential elector, see Art. II, § 1, cl. 2 ("no
Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector"), no
one contends that these disqualifications implicitly prohibit the
States from adding any other eligibility requirements; instead,
Article II leaves the States free to establish qualifications for
their delegates to the electoral college. See
supra, at
861-862. Nothing in the Constitution, moreover, gives Congress any
say over the additional eligibility requirements that the people of
the States or their state legislatures may choose to set. Yet under
Article II, "[t]he Congress may determine the Time of chusing the
Electors .... " Art. II, § 1, cl. 4.
The majority thus creates an unwarranted divergence between
Article 1's provisions for the selection of Members of Congress and
Article II's provisions for the selection of members of the
electoral college. Properly understood, the treatment of
congressional elections in Article I parallels the treatment of
Presidential elections in Article II. Under Article I as under
Article II, the States and the people of the States do enjoy the
reserved power to establish substantive eligibility requirements
for candidates, and Congress has no power to override these
requirements. But just as Article II authorizes Congress to
prescribe when the States must select their Presidential electors,
so Article I gives Congress the ultimate authority over the times,
places, and manner of holding congressional elections.
896
The majority's only response is that my reading of the
Constitution would permit States to use their qualificationsetting
power to achieve the very result that Congress' "make or alter"
power was designed to avoid. According to the majority, States
could set qualifications so high that no candidate could meet them,
and Congress would be powerless to do anything about it.
Ante, at 81lo
Even if the majority were correct that Congress could not
nullify impossible qualifications, however, the Constitution itself
proscribes such state laws. The majority surely would concede that
under the Framers' Constitution, each state legislature had an
affirmative duty to appoint two people to the Senate. See Art. I, §
3, cl. 1 ("The Senate of the United States
shall be composed
of two Senators from each State, chosen by the Legislature thereof
... " (emphasis added)); cf. Art. I, § 3, cl. 2 ("if Vacancies
happen by Resignation, or otherwise, during the Recess of the
Legislature of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature, which shall
then fill such Vacancies"). In exactly the same way that § 3
requires the States to send people to the Senate, § 2 also requires
the States to send people to the House. See Art. I, § 2, cl. 1
("The House of Representatives shall be composed of Members chosen
every second Year by the People of the several States ... "); cf.
Art. I, § 2, cl. 4 ("When vacancies happen in the Representation
from any State, the Executive Authority thereof shall issue Writs
of Election to fill such Vacancies").
The majority apparently is concerned that (on its reading of the
"make or alter" power) Congress would not be able to enforce the
constitutional proscription on impossible qualifications;
enforcement would instead be relegated to the courts, the Executive
Branch, or the political process. But this concern is equally
applicable whether one adopts my view of the Qualifications Clauses
or the majority's view. Both the majority and I agree that it is
unconstitutional for
897
States to establish impossible qualifications for congressional
office. Both the majority and I also agree that it is theoretically
conceivable that a State might defy this proscription by erecting
an impossible qualification. Whether Congress may use its "make or
alter" power to override such laws turns entirely on how one reads
the "make or alter" power; it has nothing to do with whether one
believes that the Qualifications Clauses are exclusive.
It would not necessarily be unusual if the Framers had decided
against using Congress' "make or alter" power to guard against
state laws that disqualify everyone from service in the House.
After all, although this power extended to the times and manner of
selecting Senators as well as Representatives, it did not authorize
Congress to pick the Senators from a State whose legislature defied
its constitutional obligations and refused to appoint anyone. This
does not mean that the States had no duty to appoint Senators, or
that the States retained the power to destroy the Federal
Government by the simple expedient of refusing to meet this duty.
It merely means that the Framers did not place the remedy with
Congress.21
But the flaws in the majority's argument go deeper. Contrary to
the majority's basic premise, Congress
can nullify state
laws that establish impossible qualifications. If a State actually
holds an election and only afterwards purports to disqualify the
winner for failure to meet an impossible condition, Congress
certainly would not be bound by the purported disqualification. It
is up to each House of Congress to judge the "[q]ualifications" of
its Members for itself. See Art. I, § 5, cl. 1. Even if this task
includes the responsibility of judging qualifications imposed by
state law, see
supra, at 892-893, Congress obviously would
have not only
21 Likewise, the Constitution requires the States to appoint
Presidential electors, Art. II, § 1, cl. 2, but it does not provide
for any congressional override if the States refuse to do so (or if
the States set impossibly high qualifications and then announce
that no one meets them).
898
the power but the duty to treat the unconstitutional state law
as a nullity. Thus, Congress could provide the appropriate remedy
for the State's defiance, simply by seating the winner of the
election.
It follows that the situation feared by the majority would arise
only if the State refused to hold an election in the first place,
on the ground that no candidate could meet the impossible
qualification. But Congress unquestionably has the power to
override such a refusal. Under the plain terms of § 4, Congress can
make a regulation providing for the State to hold a congressional
election at a particular time and place, and in a particular
manner.22
3
In discussing the ratification period, the majority stresses two
principal data. One of these pieces of evidence is no evidence at
all-literally. The majority devotes considerable space to the fact
that the recorded ratification debates do not contain any
affirmative statement that the States can supplement the
constitutional qualifications. See
ante, at 812-815. For the
majority, this void is "compelling" evidence that "unquestionably
reflects the Framers' common understanding that States lacked that
power."
Ante, at 812, 814. The majority reasons that
delegates at several of the ratifying conventions attacked the
Constitution for failing to require Members of Congress to rotate
out of office.23 If
22 Even if there is anything left of the majority's argument on
this point, it would still have no bearing on whether the Framers
intended to preclude
the people of each State from
supplementing the constitutional qualifications. Just as the
Framers had no fear that the people of a State would destroy
congressional elections by entirely disenfranchising themselves,
see The Federalist No. 52, at 326, so the Framers surely had no
fear that the people of the States would destroy congressional
elections by entirely disqualifying all candidates.
23 As the majority notes, see
ante, at 837, and 812, n.
22, the Philadelphia Convention had dropped without discussion a
portion of the original Randolph Resolutions calling for Members of
the House of Representatives
899
supporters of ratification had believed that the individual
States could supplement the constitutional qualifications, the
majority argues, they would have blunted these attacks by pointing
out that rotation requirements could still be added State by State.
See
ante, at 814.
But the majority's argument cuts both ways. The recorded
ratification debates also contain no affirmative statement that the
States
cannot supplement the constitutional qualifications.
While ratification was being debated, the existing rule in America
was that the States could prescribe eligibility requirements for
their delegates to Congress, see n. 3,
supra, even though
the Articles of Confederation gave Congress itself no power to
impose such qualifications. If
"to be incapable of re-election for the space of [blank space]
after the expiration of their term of service." 1 Farrand 20. This
provision, which at a minimum would have barred all Members of the
House from serving consecutive terms, was abandoned without
objection when the Convention voted to require House Members to
stand for election every three years. See
id., at 214-217;
see also
id., at 362 (opting for 2-year terms instead).
Subsequently, indeed, some members of the Convention appeared to be
unaware that a rotation requirement had ever been proposed. See 2
id., at 120 (remarks of Gouverneur Morris).
The majority properly does not cite the omission of this
nationwide rotation requirement as evidence that the Framers meant
to preclude individual States from adopting rotation requirements
of their own. Just as individual States could extend the vote to
women before the adoption of the Nineteenth Amendment, could
prohibit poll taxes before the adoption of the Twenty-fourth
Amendment, and could lower the voting age before the adoption of
the Twenty-sixth Amendment, so the Framers' decision not to impose
a nationwide limit on congressional terms did not itself bar States
from adopting limits of their own. See,
e. g., Ga.
Const. of 1877, § 2-602 (adopted Aug. 3, 1943) (reducing voting age
to 18 nearly three decades before the Twenty-sixth Amendment was
proposed);
Harman v.
Forssenius,
380 U. S. 528, 539 (1965)
(noting that by the time the Twenty-fourth Amendment was proposed,
"only five States retained the poll tax as a voting requirement");
Congressional Research Service, The Constitution of the United
States of America: Analysis and Interpretation 1571 (1973)
(reporting that 11 States had adopted women's suffrage by the time
the Nineteenth Amendment was proposed). Cf.
ante, at 837,
and n. 50.
900
the Federal Constitution had been understood to deprive the
States of this significant power, one might well have expected its
opponents to seize on this point in arguing against
ratification.
The fact is that arguments based on the absence of recorded
debate at the ratification conventions are suspect, because the
surviving records of those debates are fragmentary. We have no
records at all of the debates in several of the conventions, 3
Documentary History of the Ratification of the Constitution 7 (M.
Jensen ed. 1978), and only spotty records from most of the others,
see
ibid.; 1
id., at 34-35; 4 Elliot 342; Hutson, The
Creation of the Constitution: The Integrity of the Documentary
Record, 65 Texas L. Rev. 1, 21-23 (1986).
If one concedes that the absence of relevant records from the
ratification debates is not strong evidence for either side, then
the majority's only significant piece of evidence from the
ratification period is The Federalist No. 52. Contrary to the
majority's assertion, however, this essay simply does not talk
about "the lack of state control over the qualifications of the
elected," whether "explicitly" or otherwise. See
ante, at
806.
It is true that The Federalist No. 52 contrasts the
Constitution's treatment of the qualifications of voters in
elections for the House of Representatives with its treatment of
the qualifications of the Representatives themselves. As Madison
noted, the Framers did not specify any uniform qualifications for
the franchise in the Constitution; instead, they simply
incorporated each State's rules about eligibility to vote in
elections for the most numerous branch of the state legislature. By
contrast, Madison continued, the Framers chose to impose some
particular qualifications that all Members of the House had to
satisfy. But while Madison did say that the qualifications of the
elected were "more susceptible of uniformity" than the
qualifications of electors, The Federalist No. 52, at 326, he did
not say that the Constitution
901
prescribes anything but uniform minimum qualifications for
congressmen. That, after all, is more than it does for
congressional electors.
Nor do I see any reason to infer from The Federalist No. 52 that
the Framers intended to deprive the States of the power to add to
these minimum qualifications. Madison did note that the existing
state constitutions defined the qualifications of "the elected" -a
phrase that the essay used to refer to Members of Congress-"less
carefully and properly" than they defined the qualifications of
voters. But Madison could not possibly have been rebuking the
States for setting unduly high qualifications for their
representatives in Congress, because they actually had established
only the sketchiest of qualifications. At the time that Madison
wrote, the various state constitutions generally provided for the
state legislature to appoint the State's delegates to the Federal
Congress.24 Four State Constitutions had added a termlimits
provision that tracked the one in the Articles of Confederation,25
and some of the Constitutions also specified that people who held
certain salaried offices under the United States were ineligible to
represent the State in Congress.26 But only two State Constitutions
had prescribed any other
24 See Del. Const. of 1776, Art. 11, in 1 Thorpe 564; Md. Const.
of 1776, Form of Government, Art. XXVII, in 3 Thorpe 1695; Mass.
Const. of 1780, Pt. 2, Ch. IV, in 3 Thorpe 1906; N. H. Const. of
1784, pt. II, in 4 Thorpe 2467; N. Y. Const. of 1777, Art. XXX, in
5 Thorpe 2634-2635; N. C. Const. of 1776, Form of Government, Art.
XXXVII, in 5 Thorpe 2793; Pa. Const. of 1776, Frame of Government,
§ 11, in 5 Thorpe 3085; S. C. Const. of 1778, Art. XXII, in 6
Thorpe 3253; Va. Const. of 1776, in 7 Thorpe 3817.
25 Md. Const. of 1776, Form of Government, Art. XXVII, in 3
Thorpe 1695; N. H. Const. of 1784, Pt. II, in 4 Thorpe 2467; N. C.
Const. of 1776, Art. XXXVII, in 5 Thorpe 2793; Pa. Const. of 1776,
Frame of Government, § 11, in 5 Thorpe 3085.
26 Md. Const. of 1776, Form of Government, Art. XXVII, in 3
Thorpe 1695; N. H. Const. of 1784, Pt. II, in 4 Thorpe 2467; Pa.
Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085.
902
qualifications for delegates to Congress.27 In this context,
when Madison wrote that the state constitutions defined the
qualifications of Members of Congress "less carefully and properly"
than they defined the qualifications of voters, he could only have
meant that the existing state qualifications did not do enough to
safeguard Congress' competence: The state constitutions had not
adopted the age, citizenship, and inhabitancy requirements that the
Framers considered essential. Madison's comments readily explain
why the Framers did not merely incorporate the state qualifications
for Congress. But they do not imply that the Framers intended to
withdraw from the States the power to supplement the list of
qualifications contained in the Federal Constitution.28
Though The Federalist No. 52 did not address this question, one
might wonder why the Qualifications Clauses did not simply
incorporate the existing qualifications for members of the state
legislatures (as opposed to delegates to Congress). Again, however,
the Framers' failure to do so cannot be taken as an implicit
criticism of the States for setting unduly high entrance barriers.
To the contrary, the age and citizenship qualifications set out in
the Federal Constitution are considerably higher than the
corresponding qualifications contained in the state constitutions
that were then in force. At the time, no state constitution
required members of the lower house of the state legislature to be
more than 21 years old, and only two required members of the upper
house to be 30. See N. H. Const. of 1784, Pt. II, in 4 Thorpe 2460;
S. C. Const. of 1778, Art. XII, in 6 Thorpe 3250. Many
27 See Md. Const. of 1776, Art. XXVII, in 3 Thorpe 1695; N. H.
Const. of 1784, Pt. II, in 4 Thorpe 2467.
28The majority suggests that I have overlooked Madison's
observation that subject to the "reasonable limitations" spelled
out in the House Qualifications Clause, the Constitution left the
House's door "open to merit of every description." See
ante,
at 807-808, n. 18; see also
ante, at 808 (quoting a similar
passage from The Federalist No. 57). As discussed above, however,
such statements do not advance the majority's case. See
supra, at 880-881.
903
States, moreover, permitted naturalized aliens to take seats in
the state legislature within one or two years of becoming citizens.
See Kettner, Development of American Citizenship, at 214-219.
The majority responds that at the time of the framing, most
States imposed property qualifications on members of the state
legislature. See
ante, at 807-808, n. 18. But the fact that
the Framers did not believe that a uniform minimum property
requirement was necessary to protect the competence of Congress
surely need not mean that the Framers intended to preclude States
from setting their own property qualifications.
In fact, the constitutional text supports the contrary
inference. As the majority observes, see
ibid., and
ante, at 825, n. 35, at the time of the framing some States
also imposed religious qualifications on state legislators. The
Framers evidently did not want States to impose such qualifications
on federal legislators, for the Constitution specifically provides
that "no religious Test shall ever be required as a Qualification
to any Office or public Trust under the United States." Art. VI,
cl. 3. Both the context29 and the plain language of the Clause show
that it bars the States as well as the Federal Government from
imposing religious disqualifications on federal offices. But the
only reason for extending the Clause to the States would be to
protect Senators and Representatives from state-imposed religious
qualifications; I know of no one else who holds a "public Trust
under the United States" yet who might be subject to state
disqualifications. If the
expressio unius maxim cuts in any
direction in this case, then, it undermines the majority's
position:
The Framers' prohibition on state-imposed religious disqual-
29 The immediately preceding portion of the Clause requires not
only "[t]he Senators and Representatives before mentioned" but also
"the Members of the several State Legislatures, and all executive
and judicial Officers, both of the United States and of the several
States," to take an "Oath or Affirmation" to support the
Constitution. Art. VI, cl. 3.
904
ifications for Members of Congress suggests that other types of
state-imposed disqualifications are permissible. See Rotunda,
Rethinking Term Limits for Federal Legislators in Light of the
Structure of the Constitution, 73 Ore. L. Rev. 561, 574 (1994).
4
More than a century ago, this Court was asked to invalidate a
Michigan election law because it called for Presidential electors
to be elected on a district-by-district basis rather than being
chosen by "the State" as a whole. See Art. II, § 1, cl. 2.
Conceding that the Constitution might be ambiguous on this score,
the Court asserted that "where there is ambiguity or doubt, or
where two views may well be entertained, contemporaneous and
subsequent practical construction[s] are entitled to the greatest
weight."
McPherson v.
Blacker, 146 U. S., at 27. The
Court then described the district-based selection processes used in
2 of the 10 States that participated in the first Presidential
election in 1788, 3 of the 15 States that participated in 1792, and
5 of the 16 States that participated in 1796.
Id., at 29-31.
Though acknowledging that in subsequent years "most of the States
adopted the general ticket system,"
id., at 32, the Court
nonetheless found this history "decisive" proof of the
constitutionality of the district method,
id., at 36. Thus,
the Court resolved its doubts in favor of the state law, "the
contemporaneous practical exposition of the Constitution being too
strong and obstinate to be shaken .... "
Id., at 27.
Here, too, state practice immediately after the ratification of
the Constitution refutes the majority's suggestion that the
Qualifications Clauses were commonly understood as being exclusive.
Five States supplemented the constitutional disqualifications in
their very first election laws, and the surviving records suggest
that the legislatures of these States considered and rejected the
interpretation of the Constitution that the majority adopts
today.
905
As the majority concedes, the first Virginia election law
erected a property qualification for Virginia's contingent in the
Federal House of Representatives. See Virginia Election Law (Nov.
20, 1788), in 2 Documentary History of the First Federal Elections,
1788-1790, pp. 293, 294 (G. DenBoer ed. 1984) (hereinafter First
Federal Elections) (restricting possible candidates to
"freeholder[s]"). What is more, while the Constitution merely
requires representatives to be inhabitants of their State, the
legislatures of five of the seven States that divided themselves
into districts for House elections 30 added that representatives
also had to be inhabitants of the district that elected them. Three
of these States adopted durational residency requirements too,
insisting that representatives have resided within their districts
for at least a year (or, in one case, three years) before being
elected.31
30 Despite the majority's emphasis on the Framers' supposed
desire for uniformity in congressional elections, even the majority
does not dispute that the Framers wanted to let States decide for
themselves whether to use district elections in selecting Members
of the House of Representatives. The Framers fully expected that in
some States each Member of the House would be chosen by the people
of the whole State, while in other States each Member would be
directly accountable only to the people of a single district. See,
e. g., 14 Papers of Thomas Jefferson 3 (J. Boyd ed.
1958) (letter from Madison to Jefferson, Oct. 8, 1788).
31 See Georgia Election Law (Jan. 23, 1789) (restricting
representatives from each district to "resident[s] of three years
standing in the district"), in 2 First Federal Elections 456, 457;
Maryland Election Law (Dec. 22, 1788) (simple district residency
requirement), in 2 First Federal Elections 136, 138; Massachusetts
Election Resolutions (Nov. 20, 1788) (same), in 1 First Federal
Elections 508, 509 (M. Jensen & R. Becker eds. 1976); North
Carolina Election Law (Dec. 16, 1789) (requiring the person elected
from each district to have been "a Resident or Inhabitant of that
Division for which he is elected, during the Space or Term of one
Year before, and at the Time of Election"), in 4 First Federal
Elections 347; Virginia Election Law (Nov. 20, 1788) (requiring
each candidate to have been "a bona fide resident for twelve months
within such District"), in 2 First Federal Elections 293, 294. Upon
being admitted to the Union in 1796, Tennessee also required its
Members in the Federal House of Representatives to have
906
In an attempt to neutralize the significance of the district
residency requirements, respondent Hill asserts that "there is no
evidence that any state legislature focused, when it created these
requirements, on the fact that it was adding to the constitutional
qualifications." Brief for Respondents Bobbie E. Hill et al. 20.
But this claim is simply false.
In Massachusetts, for instance, the legislature charged a
committee with drafting a report on election methods. The fourth
article of the resulting report called for the State to be divided
into eight districts that would each elect one representative, but
did not require that the representatives be residents of the
districts that elected them. Joint Committee Report (Nov. 4, 1788),
in 1 First Federal Elections 481. When the members of the State
House of Representatives discussed this report, those who proposed
adding a district residency requirement were met with the claim
that the Federal Constitution barred the legislature from
specifying additional qualifications. See Massachusetts Centinel
(Nov. 8, 1788) (reporting proceedings), in 1 First Federal
Elections 489. After "considerable debate," the House approved the
committee's version of the fourth article by a vote of 89 to
72.
Ibid. But the State Senate approved a district residency
amendment, 1 First Federal Elections 502, and the House then voted
to retain it,
id., at 504.
Although we have no record of the legislative debates over
Virginia's election law, a letter written by one of the members of
the House of Delegates during the relevant period indicates that in
that State, too, the legislature considered the possible
constitutional objection to additional disqualifications. In that
letter, Edward Carrington (an opponent of the district residency
requirement) expressed his view that the requirement "may exceed
the powers of the Assembly,"
been Tennessee residents for three years and district residents
for one year before their election. Act of Apr. 20, 1796, ch. 10,
in Laws of the State of Tennessee 81 (1803).
907
but acknowledged that there was "no prospect of its being struck
out" because Federalists as well as Anti-Federalists at least
professed to "think it right." 2
id., at 367 (letter from
Carrington to Madison, Nov. 9-10, 1788). Carrington was correct
about the views of his colleagues: By a vote of 80 to 32, the House
of Delegates rejected a motion to delete the added qualifications,
while a similar motion in the State Senate lost by a vote of 12 to
3.
Id., at 287, 293.32
The surviving records from Maryland and Georgia are less
informative, but they, too, show that the legislatures of those
States gave special attention to the district residency
requirements that they enacted.33 Out of the five original
32 After the Virginia Legislature had enacted this bill, some of
James Madison's friends suggested that he might find it harder to
win election in his own district than in certain other areas of the
State. They believed that if Madison won the popular vote in one of
those other districts, the House of Representatives could seat him
on the theory that States cannot add to the constitutional
qualifications. See 11 Papers of James Madison 378-379 (R. Rutland
& C. Hobson eds. 1977) (letter from Carrington to Madison, Dec.
2, 1788). Other advisers, however, warned that the people of
Virginia might not share this understanding of the Constitution. As
Alexander White wrote in a letter to Madison:
"Some Gentlemen suppose you may be elected in other Districts,
and that Congress would disregard the Act which requires Residence
in a particular District. I will not undertake to decide that
question, but this I know, such a determination would afford much
ground of c1amour, and enable the opposers of the Government to
inflame the Minds of the People beyond anything which has yet
happened."
Id., at 380 (Dec. 4, 1788).
Madison himself apparently never endorsed the idea that he
should test the district residency requirement. Instead, he ran
from his own district (where he overcame a stiff challenge from
another future President, James Monroe).
33 The records show that Maryland's House of Delegates put the
district residency requirement to a separate vote and approved it
by a margin of 41 to 24. 2 First Federal Elections 129-130
(summarizing proceedings from Dec. 3, 1788). A subsequent effort to
jettison the requirement lost by a vote of 39 to 28.
Id., at
132-133 (summarizing proceedings from Dec. 10, 1788). Language in
Maryland's second election law confirms that
908
States that adopted district residency requirements, in fact,
only in North Carolina were the records so poor that it is
impossible to draw any inferences about whether the legislature
gave careful attention to the implications of the
requirement.34
the state legislature knew that it was supplementing the
Qualifications Clauses. The Act of December 10, 1790, stipulated
that each candidate must "b[e] a resident of his district at the
time of the election, and hav[e] resided therein twelve calendar
months immediately before, and [be] otherways qualified according
to the constitution of the United States." 1790 Laws of Maryland,
ch. XVI, art. VIII.
In Georgia, too, the State House of Assembly called special
attention to the district residency requirement. Shortly before
Georgia held its first federal elections, the House adopted a
resolution to stress that if the top vote getter in any district
had not been "an actual resident of three years standing" in that
district, then "such person shall not be considered as eligible nor
shall he be commissioned." 2 First Federal Elections 459
(resolution of Feb. 4, 1789).
34 Even the experience in New York and South Carolina-the only
States that opted for district elections without requiring district
residency-does not support the majority's position. While the
records from South Carolina are sketchy, those from New York
affirmatively undermine the majority's suggestion that the
Qualifications Clauses were commonly understood to be exclusive.
When the topic was first broached in the State Assembly, the
assemblymen defeated a district residency proposal amid comments
that "to add any other qualification [to those listed in the
Constitution] would be unconstitutional." 3 First Federal Elections
232 (Dec. 18, 1788). But the State Senate took a different view,
adding a district residency requirement when it considered the
election bill.
Id., at 320. The Assembly then approved the
requirement by a vote of 36 to
12, id., at 325-326 (Jan. 19,
1789), but reconsidered the requirement the following day
(apparently with more assemblymen in attendance). After a
sophisticated debate on the constitutional question, with some
assemblymen arguing that the district residency requirement was
unconstitutional and others responding that the Constitution merely
erected minimum qualifications, the Assembly divided evenly over
the requirement: 28 voted in favor of it and 28 voted against it.
Id., at 328-335 (Jan. 20,1789). The chairman broke the tie
with a vote against the requirement.
Id., at 335. Still,
there clearly was no consensus in the New York Assembly. What is
more, some of the votes against the district residency requirement
may well have been cast by assemblymen who simply opposed the
requirement
909
The majority asserts that "state practice with respect to
residency requirements does not necessarily indicate that States
believed that they had a broad power to add restrictions," because
the States "may simply have viewed district residency requirements
as the necessary analog to state residency requirements."
Ante, at 827, n. 41. This argument fails even on its own
terms. If the States had considered district residency requirements
necessary for the success of a district election system, but had
agreed with the majority that the Constitution prohibited them from
supplementing the constitutional list of qualifications, then they
simply would have rejected the district system and used statewide
elections. After all, the majority deems district residency
requirements just as unconstitutional as other added
qualifications. See
ante, at 799.
The majority's argument also fails to account for the durational
element of the residency requirements adopted in Georgia, North
Carolina, and Virginia (and soon thereafter in Tennessee). These
States obliged Congressmen not only to be district residents when
elected but also to have been district residents for at least a
year before then. See
Finally, the majority's argument cannot explain the election
schemes of Maryland and Georgia. Though these States did divide
themselves into congressional districts, they allowed every voter
to vote for one candidate from each
on policy grounds, as an undue restriction on the people's
ability to elect nonresidents if they wanted to do so. In any
event, the New York Senate obviously considered the requirement
constitutional.
There is evidence that some members of the Pennsylvania
Legislature considered the Qualifications Clauses to be exclusive.
See 1
id., at 282288. Of course, they also believed that §2
of Article I-which calls for Members of the Federal House of
Representatives to be "chosen ... by the People of the several
States"-forbade Pennsylvania to elect its representatives by
districts. See
id., at 283. The legislatures of the five
States that adopted district residency requirements, who had the
Pennsylvania example before them, disagreed with the Pennsylvania
legislators.
910
district. See Georgia Election Law (Jan. 23, 1789), in 2 First
Federal Elections 456, 457; Maryland Election Law (Dec. 22, 1788),
in 2 First Federal Elections 136, 138. In other words, Maryland and
Georgia imposed district residency requirements despite permitting
every voter in the State to vote for every representative from the
State. Neither of these States could possibly have seen district
residency requirements as the "necessary analog" to anything; they
imposed these requirements solely for their own sake.
The majority nonetheless suggests that the initial election laws
adopted by the States actually support its position because the
States did not enact very many disqualifications. See
ante,
at 826-827, n. 41. In this context, the majority alludes to the
fact that no State imposed a religious qualification on federal
legislators, even though New Hampshire continued to require state
legislators to be Protestants and North Carolina imposed a similar
requirement on people holding places of trust in the State's "civil
department." See
ante, at 826-827, n. 41, and 825, n. 35.
But the majority concedes that "Article VI of the Federal
Constitution ... prohibited States from imposing similar
qualifications on federal legislators."
Ante, at 825, n. 35.
As discussed above, the constitutional treatment of religious
qualifications tends to undermine rather than support the
majority's case. See
supra, at 903-904.
The majority also points out that no State required its own
federal representatives to rotate out of office after serving one
or more terms.
Ante, at 826. At the time of the framing,
however, such requirements were increasingly disfavored on policy
grounds. The advantages of incumbency were substantially fewer then
than now, and turnover in office was naturally quite high. The
perceived advantages of term limits were therefore smaller than
they are today. But the perceived disadvantages were just as great:
Term limits prevented the States or the people of the States from
keeping good legislators in office, even if they wanted to do
so.
911
See G. Wood, Creation of the American Republic, 1776-1787,
It is true that under the Articles of Confederation, four States
had imposed term limits on their delegates to Congress. See
ante, at 826. But three of these provisions added nothing to
the limits in the Articles themselves, see Md. Const. of 1776, Form
of Government, Art. XXVII (echoing Article of Confederation V), in
3 Thorpe 1695; N. H. Const. of 1784, Pt. II (same), in 4 Thorpe
2467; N. C. Const. of 1776, Art. XXXVII (similar), in 5 Thorpe
2793, and the other one contained only a minor variation on the
provision in the Articles, see Pa. Const. of 1776, Frame of
Government, § 11, in 5 Thorpe 3085. Indeed, though the majority
says that "many States imposed term limits on state officers,"
ante, at 825-826, it appears that at the time of the framing
only Pennsylvania imposed any restriction on the reelection of
members of the state legislature, and Pennsylvania deleted this
restriction when it adopted a new Constitution in 1790. Compare Pa.
Const. of 1776, Frame of Government, § 8, in 5 Thorpe 3084, with
Pa. Const. of 1790, in 5 Thorpe 3092-3103; cf. Va. Const. of 1776,
Form of Government (perhaps imposing term limits on members of the
upper house of the state legislature), in 7 Thorpe 3816. It seems
likely, then, that the failure of any State to impose term limits
on its senators and representatives simply reflected policy-based
decisions against such restrictions.
The majority counters that the delegates at three state
ratifying conventions-in Virginia, New York, and North
Carolina-"proposed amendments that would have required rotation."
Ante, at 813; cf.
ante, at 826, and n. 40. But the
amendments proposed by both the North Carolina Convention and the
Virginia Convention would have imposed term limits only on the
President, not on Members of Congress. See 4 Elliot 245 (North
Carolina) ("[N]o person shall be capable of being President of the
United States for more than eight years in any term of fifteen
years"); 3
id., at 660
912
(Virginia) (similar). If the majority is correct that these
conventions also "voiced support for term limits for Members of
Congress," see
ante, at 826,35 then the evidence from these
conventions supports my position rather than the majority's: the
conventions deemed it necessary for the Constitution itself to
impose term limits on the President (because no State could do that
on its own), but they did not think it necessary for the
Constitution to impose term limits on Members of Congress. This
understanding at the Virginia and North Carolina conventions meshes
with the election laws adopted by both States, which reflected the
view that States could supplement the Qualifications Clauses. See
supra, at 905, and n. 31, 909.36
35 The majority correctly notes that each convention, in
addition to proposing a list of specific "Amendments to the
Constitution," proposed a "Declaration of Rights" to be appended to
the Constitution. In both States, this "Declaration" contained the
general exhortation that members of both the Legislative and
Executive Branches "should, at fixed periods, be reduced to a
private station, return into the mass of the people, and the
vacancies be supplied by certain and regular elections." 4 Elliot
243;
3 id., at 657-658. But both Declarations went on to
state that at these elections, the previous occupants of the office
in question should "be eligible or ineligible [for reelection], as
the rules of the constitution of government and the laws shall
direct." 4
id., at 243; 3
id., at 658. Accordingly,
it is hard to describe either Declaration as a "proposed ...
constitutional amendment supporting term limits for Members of
Congress." See
ante, at 826, n. 40.
36 As for New York, the State's ratifying convention did propose
amending the Federal Constitution to provide "[t]hat no person be
eligible as a senator for more than six years in any term of twelve
years." 1 Elliot 329-330. The majority finds it significant that
when this suggestion fell on deaf ears, New Yorkers did not amend
their State Constitution to impose this restriction on their state
legislature's appointment authority. Before the Seventeenth
Amendment was adopted, however, the Federal Constitution vested the
choice of Senators in the state legislatures rather than the
people. See Art. I, § 3, cl. 1. At least without a delegation of
this authority from the legislature, cf.
supra, at 878-882,
and n. 16, the people of New York may well have thought that they
could no more amend
913
If the majority can draw no support from state treatment of
religious qualifications and rotation requirements, we are left
only with state treatment of property qualifications. It is true
that nine of the State Constitutions in effect at the time of the
framing required members of the lower house of the state
legislature to possess some property, see
ante, at 823-824,
n. 33, and that four of these Constitutions were revised shortly
after the framing but continued to impose such requirements, see
ante, at 824-825, and n. 35. Only one State, by contrast,
established a property qualification for the Federal House of
Representatives. But the fact that more States did not adopt
congressional property qualifications does not mean that the
Qualifications Clauses were commonly understood to be exclusive;
there are a host of other explanations for the relative liberality
of state election laws.37 And whatever the explanation, the fact
remains that
the State Constitution to narrow the legislature's choices for
Senator than they could amend the State Constitution to take the
appointment of Senators entirely away from the legislature. It
obviously would not follow that they doubted their ability to amend
the State Constitution to impose constraints on their own choice of
Representatives. The ratifying convention's proposal thus sheds
absolutely no light on whether New Yorkers considered the
Qualifications Clauses to be exclusive.
37Property qualifications may simply have seemed unnecessary.
For instance, it surely was far more likely that a pauper would
secure one of the 202 seats in the South Carolina House of
Representatives than that he would secure one of South Carolina's
five seats in the United States House of Representatives. Compare
S. C. Const. of 1778, Art. XIII, in 6 Thorpe 3251, with U. S.
Const., Art. I, § 2, cl. 3; cf. S. C. Const. of 1790, Art. I, § 3
(providing for a 122-seat State House of Representatives), in 6
Thorpe 3258. It may be significant, then, that the one State that
saw fit to enact a congressional property qualification was also
the State that had the largest congressional delegation. See U. S.
Const., Art. I, § 2, cl. 3 (allocating 10 seats to Virginia). In
addition, people of the day expected that "[t]he representatives of
each State [in the federal House] ... will probably in all cases
have been members ... of the State legislature." The Federalist No.
56, at 348 (Madison); see also n. 17,
supra (quoting article
by John Stevens, Jr.). Because most States had property re-
914
five of the election laws enacted immediately after ratification
of the Constitution imposed additional qualifications that would
clearly be unconstitutional under today's holding. This history of
state practice-which is every bit as strong as the history we
deemed "decisive" in
McPherson v.
Blacker, 146 U. S.,
at 36-refutes the majority's position that the Qualifications
Clauses were generally understood to include an unstated
exclusivity provision.
5
The same is true of the final category of historical evidence
discussed by the majority: controversies in the House and the
Senate over seating candidates who were duly elected but who
arguably failed to satisfy qualifications imposed by state law.
quirements for their state legislators, there may have been
little perceived need for a separate property qualification for
their Members of Congress.
Even States that wanted to create such a qualification, and that
considered it within their constitutional authority to do so, might
have been deterred by the possibility that the Federal House of
Representatives would take a different view. As I have shown, there
certainly was no general understanding that the Qualifications
Clauses included an unstated exclusivity provision. But people of
the day did consider this to be "one of the doubtful questions on
which honest men may differ with the purest motives." 14 Writings
of Thomas Jefferson, at 83 (letter to Joseph C. Cabell, Jan. 31,
1814); see n. 14,
supra. If some States feared that the
"honest men" in the House might throw out the results of an
election because of a qualifications law, they might well have
thought that any policy benefits of such laws were outweighed by
the risk that they would temporarily be deprived of representation
in Congress. Alternatively, they may simply have wanted to stay
away from difficult constitutional questions. Cf.
Ashwander
v.
TVA, 297 U.
S. 288, 347 (1936) (Brandeis, J., concurring). Thus, despite
concluding that the States do enjoy the power to prescribe
qualifications, Thomas Jefferson questioned whether the advantages
of added qualifications were sufficient to justify enacting a law
whose constitutionality could be disputed. See 14 Writings of
Thomas Jefferson, at 84.
915
As the majority concedes, "'congressional practice has been
erratic'" and is of limited relevance anyway.
Ante, at 819
(quoting
Powell v.
McCormack, 395 U. S., at 545).
Actions taken by a single House of Congress in 1887 or in 1964 shed
little light on the original understanding of the Constitution.
Presumably for that reason, the majority puts its chief emphasis on
the 1807 debate in the House of Representatives about whether to
seat Maryland's William McCreery. See
ante, at 816-818. I
agree with the majority that this debate might lend some support to
the majority's position if it had transpired as reported in
Powell v.
M cCormack. See
ante, at 816-817.
But the Court's discussionboth in
Powell and today-is
misleading.
A Maryland statute dating from 1802 had created a district
entitled to send two representatives to the House, one of whom had
to be a resident of Baltimore County and the other of whom had to
be a resident of Baltimore City. McCreery was elected to the Ninth
Congress as a resident of Baltimore City. After his reelection to
the Tenth Congress, however, his qualifications were challenged on
the ground that because he divided his time between his summer
estate in Baltimore County and his residence in Washington, D. C.,
he was no longer a resident of Baltimore City at all.
As the majority notes, a report of the House Committee of
Elections recommended that McCreery be seated on the ground that
state legislatures have no authority to add to the qualifications
set forth in the Constitution. See 17 Annals of Congo 871 (1807);
ante, at 816-817. But the committee's submission of this
initial report sparked a heated debate that spanned four days, with
many speeches on both sides of the issue. See 17 Annals of Congo
871-919, 927-947 (reporting proceedings from Nov. 12, 13, 16, and
18, 1807). Finally, a large majority of the House voted to recommit
the report to the Committee of Elections.
Id., at 950 (Nov.
19, 1807). The committee thereupon deleted all references to
the
916
constitutional issue and issued a revised report that focused
entirely on the factual question whether McCreery satisfied the
state residency requirement.
Id., at 1059-1061 (Dec. 7,
1807). After receiving the new report, the House seated McCreery
with a resolution simply saying:
"Resolved, That William
McCreery is entitled to his seat in this House."
Id., at
1237 (Dec. 24, 1807). By overwhelming majorities, the House
rejected both a proposal to specify that McCreery possessed "the
qualifications required by the law of Maryland,"
ibid., and
a proposal to declare only that he was "duly qualified, agreeably
to the constitution of the United States,"
id., at 1231. Far
from supporting the majority's position, the McCreery episode
merely demonstrates that the 10th House of Representatives was
deeply divided over whether state legislatures may add to the
qualifications set forth in the Constitution.38
The majority needs more than that. The prohibition that today's
majority enforces is found nowhere in the text of the
Qualifications Clauses. In the absence of evidence that the Clauses
nonetheless were generally understood at the time of the framing to
imply such a prohibition, we may not use the Clauses to invalidate
the decisions of a State or its people.
III
It is radical enough for the majority to hold that the
Constitution implicitly precludes the people of the States from
prescribing any eligibility requirements for the congres-
38Though obliquely acknowledging this fact, the majority thinks
it relevant that some subsequent commentators have mistakenly
accepted the gloss put on the McCreery case by two editors in 1834.
See
ante, at 817-818 (citing treatises, each of which relies
upon Cases of Contested Elections in Congress (M. Clarke & D.
Hall eds. 1834)). But surely we need not accept an inaccurate view
of history merely because it has appeared in print. The majority
also cites Thomas Jefferson's hazy recollection of the McCreery
case, see
ante, at 817, without acknowledging Jefferson's
conclusion that the States were free to supplement the
Qualifications Clauses. See
supra, at 873-874.
917
sional candidates who seek their votes. This holding, after all,
does not stop with negating the term limits that many States have
seen fit to impose on their Senators and Representatives.39 Today's
decision also means that no State may disqualify congressional
candidates whom a court has found to be mentally incompetent, see,
e. g., Fla. Stat. §§ 97.041(2), 99.021(1)(a) (1991),
who are currently in prison, see,
e. g., Ill. Compo
Stat. Ann., ch. 10, §§ 5/3-5, 5/7-10, 5/10-5 (1993 and West Supp.
1995), or who have past vote-fraud convictions, see,
e.
g., Ga. Code Ann. §§ 21-2-2(25), 21-2-8 (1993 and Supp.
1994). Likewise, after today's decision, the people of each State
must leave open the possibility that they will trust someone with
their vote in Congress even though they do not trust him with
a vote in the election for Congress. See,
e.
g., R. 1. Gen. Laws § 17-14-1.2 (1988) (restricting
candidacy to people "qualified to vote").
In order to invalidate § 3 of Amendment 73, however, the
majority must go further. The bulk of the majority's analysis-like
Part II of my dissent-addresses the issues that would be raised if
Arkansas had prescribed "genuine, unadulterated, undiluted term
limits." See Rotunda, 73 Ore. L. Rev., at 570. But as the parties
have agreed, Amendment 73 does not actually create this kind of
disqualification. See
39Going into the November 1994 elections, eight States had
adopted "pure" term limits of one sort or another. See Colo.
Const., Art. XVIII, § 9a; Mich. Const., Art. II, § 10; Mo. Const.,
Art. III, § 45(a); Mont. Const., Art. IV, § 8; Ohio Const., Art. V,
§ 8; Ore. Const., Art. II, § 20; S. D. Const., Art. III, §32; Utah
Code Ann. §20A-1O-301. Eight other States had enacted "ballot
access" provisions triggered by long-term incumbency or multiple
prior terms in Congress. See Ariz. Const., Art. VII, § 18; Ark.
Const., Arndt. 73, § 3; Calif. Elec. Code Ann. § 25003 (West Supp.
1994); Fla. Const., Art. VI, §§4(b)(5), (6); N. D. Cent. Code §
16.1-01-13.1 (Supp. 1993); Okla. Const., Art. II, § 12A; Wash. Rev.
Code §§ 29.68.015, 29.68.016 (1994); Wyo. Stat. §22-5-104 (Supp.
1994). In the 1994 elections, six more States-Alaska, Idaho, Maine,
Massachusetts, Nebraska, and Nevadaenacted term-limit or
ballot-access measures, bringing to 22 the total number of States
with such provisions. See Pear, The 1994 Elections, N. Y. Times,
Nov. 10, 1994, p. B7, col. 4. In 21 of these States, the measures
have been enacted by direct vote of the people.
918
Tr. of Oral Arg. 53-54; cf.
ante, at 828. It does not say
that covered candidates may not serve any more terms in Congress if
reelected, and it does not indirectly achieve the same result by
barring those candidates from seeking reelection. It says only that
if they are to win reelection, they must do so by write-in
votes.
One might think that this is a distinction without a difference.
As the majority notes, "[t]he uncontested data submitted to the
Arkansas Supreme Court" show that write-in candidates have won only
six congressional elections in this century.
Ante, at 830,
n. 43. But while the data's accuracy is indeed "uncontested,"
petitioners filed an equally uncontested affidavit challenging the
data's relevance. As political science professor James S. Fay swore
to the Arkansas Supreme Court, "[m]ost write-in candidacies in the
past have been waged by fringe candidates, with little public
support and extremely low name identification." App.201. To the
best of Professor Fay's knowledge, in modern times only two
incumbent Congressmen have ever sought reelection as write-in
candidates. One of them was Dale Alford of Arkansas, who had first
entered the House of Representatives by winning 51% of the vote as
a write-in candidate in 1958; Alford then waged a write-in campaign
for reelection in 1960, winning a landslide 83% of the vote against
an opponent who enjoyed a place on the ballot.
Id., at
201-202. The other incumbent write-in candidate was Philip J.
Philbin of Massachusetts, who-despite losing his party primary and
thus his spot on the ballot-won 27% of the vote in his unsuccessful
write-in candidacy. See
id., at 203. According to Professor
Fay, these results-coupled with other examples of successful
write-in campaigns, such as Ross Perot's victory in North Dakota's
1992 Democratic Presidential primary-"demonstrate that when a
write-in candidate is well-known and well-funded, it is quite
possible for him or her to win an election."
Ibid.
919
The majority responds that whether "the Arkansas amendment has
the likely effect of creating a qualification" is "simply
irrelevant to our holding today."
Ante, at 836. But the
majority-which, after all, bases its holding on the asserted
exclusivity of the Qualifications Clauses-never adequately explains
how it can take this position and still reach its conclusion.
One possible explanation for why the actual effect of the
Arkansas amendment might be irrelevant is that the Arkansas Supreme
Court has already issued a binding determination of fact on this
point. Thus, the majority notes that "the state court" has advised
us that "there is nothing more than a faint glimmer of possibility
that the excluded candidate will win."
Ante, at 830. But the
majority is referring to a mere plurality opinion, signed by only
three of the seven justices who decided the case below. One of the
two justices who concurred in the plurality's holding that
Amendment 73 violates the Qualifications Clauses did write that "as
a practical matter, the amendment would place term limits on
service in the Congress," but he immediately followed this comment
with the concession that write-in candidacies are not entirely
hopeless; his point was simply that "as a practical matter,
write-in candidates are at a distinct disadvantage." 316 Ark., at
276; 872 S. W. 2d, at 364 (Dudley, J., concurring in part and
dissenting in part). As a result, the majority may rely upon the
state court only for the proposition that Amendment 73 makes the
specified candidates "distinct[lyJ" worse off than they would be in
its absence- an unassailable proposition that petitioners have
conceded.
In the current posture of these cases, indeed, it would have
been extremely irregular for the Arkansas Supreme Court to have
gone any further. Disputed questions of fact, in Arkansas as
elsewhere, generally are resolved at trial rather than on appeal
from the entry of summary judgment. See
920
Ark. Rule Civ. Proc. 56.40 Accordingly, the majority explicitly
disclaims any reliance on the state court's purported finding about
the effect of Amendment 73. See
ante, at 830, n. 44.
Instead, the majority emphasizes another purported conclusion of
the Arkansas Supreme Court. As the majority notes, the plurality
below asserted that "[t]he intent" of Amendment 73 was "to
disqualify congressional incumbents from further service." 316
Ark., at 266, 872 S. W. 2d, at 357. According to the majority,
"[w]e must, of course, accept the state court's view of the purpose
of its own law: We are thus authoritatively informed that the sole
purpose of § 3 of Amendment 73 was to attempt to achieve a result
that is forbidden by the Federal Constitution."
Ante, at
829.
I am not sure why the intent behind a law should affect our
analysis under the Qualifications Clauses. If a law does not in
fact add to the constitutional qualifications, the mistaken
expectations of the people who enacted it would not seem to affect
whether it violates the alleged exclusivity of those Clauses. But
in any event, the majority is wrong about what "the state court"
has told us. Even the plurality
40 Even if one were inclined to believe that the Arkansas
Supreme Court had departed from the usual practice and had
purported to make a binding determination on a disputed issue of
fact, we would not be foreclosed from examining the basis for that
determination. To be sure, on direct review of a state court's
judgment, we will not "conduct a more searching review of findings
made in state trial court than we conduct with respect to federal
district court findings."
Hernandez v.
New York,
500 U. S. 352,
369 (1991) (plurality opinion). But that is only to say that we
will review state-court findings under the "clear error" standard.
Ibid.; accord,
id., at 372 (O'CONNOR, J., concurring
in judgment); cf.
id., at 379 (STEVENS, J., dissenting)
(identifying no standard of review, but arguing that the state
court's decision should be reversed because its underlying factual
findings were erroneous). In certain areas, indeed, this Court
apparently gives quite little deference to the initial factfinder,
but rather "exercise[s] its own independent judgment" about the
factual conclusions that should be drawn from the record. See
Bose Corp. v.
Consumers Union of United States, Inc.,
466 U. S. 485,
501, and n. 17 (1984) (STEVENS, J.).
921
below did not flatly assert that the desire to "disqualify"
congressional incumbents was the
sole purpose behind § 3 of
Amendment 73. More important, neither of the justices who concurred
in the plurality's holding said anything at all about the intent
behind Amendment 73. As a result, we cannot attribute any findings
on this issue to the Arkansas Supreme Court.
The majority suggests that this does not matter, because
Amendment 73 itself says that it has the purpose of "evading the
requirements of the Qualifications Clauses." See
ante, at
831 (referring to the "avowed purpose" of Amendment 73). The
majority bases this assertion on the amendment's preamble, which
speaks of "limit[ing] the terms of elected officials." See
ante, at 830. But this statement may be referring only to §§
1 and 2 of Amendment 73, which impose true term limits on state
officeholders. Even if the statement refers to § 3 as well, it may
simply reflect the limiting effects that the drafters of the
preamble expected to flow from what they perceived as the
restoration of electoral competition to congressional races. See
infra, at 924. In any event, inquiries into legislative
intent are even more difficult than usual when the legislative body
whose unified intent must be determined consists of 825,162
Arkansas voters.
The majority nonetheless thinks it clear that the goal of § 3 is
"to prevent the election of incumbents." See
ante, at 830,
836. In reaching this conclusion at the summaryjudgment stage,
however, the majority has given short shrift to petitioners'
contrary claim. Petitioners do not deny that § 3 of Amendment 73
intentionally handicaps a class of candidates, in the sense that it
decreases their pre-existing electoral chances. But petitioners do
deny that § 3 is intended to (or will in fact) "prevent" the
covered candidates from winning reelection, or "disqualify" them
from further service. One of petitioners' central arguments is that
congressionally conferred advantages have artificially inflated the
pre-existing electoral chances of the covered candidates, and
922
that Amendment 73 is merely designed to level the playing field
on which challengers compete with them.
To understand this argument requires some background.
Current federal law (enacted, of course, by congressional
incumbents) confers numerous advantages on incumbents, and these
advantages are widely thought to make it "significantly more
difficult" for challengers to defeat them. Cf.
ante, at 831.
For instance, federal law gives incumbents enormous advantages in
building name recognition and good will in their home districts.
See,
e. g., 39 U. S. C. § 3210 (permitting Members of
Congress to send "franked" mail free of charge); 2 U. S. C. §§61-1,
72a, 332 (permitting Members to have sizable taxpayer-funded
staffs); 2 U. S. C. § 123b (establishing the House Recording Studio
and the Senate Recording and Photographic Studios).41 At the same
time that incumbent Members of Congress enjoy these in-kind
benefits, Congress imposes spending and contribution limits in
congressional campaigns that "can prevent challengers from spending
more ... to overcome their disadvantage in name recognition." App.
to Brief for State of Washington as
Amicus Curiae A-4
(statement of former 10-term Representative William E. Frenzel,
referring to 2 U. S. C. § 441a). Many observers believe that the
campaign-finance laws also give incumbents an "enormous
fund-raising edge" over their challengers by giving a large
financing role to entities with incentives to curry favor with
incumbents. Wertheimer & Manes, Campaign Finance Reform: A Key
to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126,
1133 (1994). In
41 Former Representative William E. Frenzel describes the House
Recording Studio as a sophisticated operation used "to prepare
tapes of speeches and messages to voters." Frenzel explains:
"Taxpayers pay for the facilities, the personnel that run them, the
production costs, and the costs of distributing, by mail or
otherwise, the tapes that members supply (from their
taxpayer-funded expense accounts). These messages are widely
disseminated by broadcasters, who can use them to fill air time at
no cost to themselves." App. to Brief for State of Washington as
Amicus Curiae A-5 to A-6.
923
addition, the internal rules of Congress put a substantial
premium on seniority, with the result that each Member's already
plentiful opportunities to distribute benefits to his constituents
increase with the length of his tenure. In this manner, Congress
effectively "fines" the electorate for voting against incumbents.
Hills, 53 U. Pitt. L. Rev., at 144-145.
Cynics see no accident in any of this. As former Representative
Frenzel puts it: "The practice ... is for incumbents to devise
institutional structures and systems that favor incumbents." App.
to Brief for State of Washington as
Amicus Curiae A-3. In
fact, despite his service from 1971 to 1989 on the House
Administration Committee (which has jurisdiction over election
laws), Representative Frenzel can identify no instance in which
Congress "changed election laws in such a way as to lessen the
chances of re-election for incumbents, or to improve the election
opportunities for challengers."
Ibid.
At the same time that incumbents enjoy the electoral advantages
that they have conferred upon themselves, they also enjoy
astonishingly high reelection rates. As Lloyd Cutler reported in
1989, "over the past thirty years a weighted average of ninety
percent of all House and Senate incumbents of both parties who ran
for reelection were reelected, even at times when their own party
lost control of the Presidency itself." Cutler, Now is the Time for
All Good Men ... , 30 Wm. & Mary L. Rev. 387, 395; see also
Kristol, Term Limitations: Breaking Up the Iron Triangle, 16 Harv.
J. L. & Pub. Policy 95, 97, and n. 11 (1993) (reporting that in
the 100th Congress, as many Representatives died as were defeated
at the polls). Even in the November 1994 elections, which are
widely considered to have effected the most sweeping change in
Congress in recent memory, 90% of the incumbents who sought
reelection to the House were successful, and nearly half of the
losers were completing only their first terms. Reply Brief for
Petitioners U. S. Term Limits, Inc., et al. 4, n. 5. Only 2 of the
26 Senate incumbents seeking reelection were defeated, see
ibid., and one of
924
them had been elected for the first time in a special election
only a few years earlier.
The voters of Arkansas evidently believe that incumbents would
not enjoy such overwhelming success if electoral contests were
truly fair-that is, if the government did not put its thumb on
either side of the scale. The majority offers no reason to question
the accuracy of this belief. Given this context, petitioners
portray § 3 of Amendment 73 as an effort at the state level to
offset the electoral advantages that congressional incumbents have
conferred upon themselves at the federal level.
To be sure, the offset is only rough and approximate; no one
knows exactly how large an electoral benefit comes with having been
a long-term Member of Congress, and no one knows exactly how large
an electoral disadvantage comes from forcing a well-funded
candidate with high name recognition to run a write-in campaign.
But the majority does not base its holding on the premise that
Arkansas has struck the wrong balance. Instead, the majority holds
that the Qualifications Clauses preclude Arkansas from trying to
strike any balance at all; the majority simply says that "an
amendment with the avowed purpose and obvious effect of evading the
requirements of the Qualifications Clauses by handicapping a class
of candidates cannot stand."
Ante, at 831. Thus, the
majority apparently would reach the same result even if one could
demonstrate at trial that the electoral advantage conferred by
Amendment 73 upon challengers precisely counterbalances the
electoral advantages conferred by federal law upon long-term
Members of Congress.
For me, this suggests only two possibilities. Either the
majority's holding is wrong and Amendment 73 does not violate the
Qualifications Clauses, or (assuming the accuracy of petitioners'
factual claims) the electoral system that exists without Amendment
73 is no less unconstitutional than the electoral system that
exists with Amendment 73.
925
I do not mean to suggest that States have unbridled power to
handicap particular classes of candidates, even when those
candidates enjoy federally conferred advantages that may threaten
to skew the electoral process. But laws that allegedly have the
purpose and effect of handicapping a particular class of candidates
traditionally are reviewed under the First and Fourteenth
Amendments rather than the Qualifications Clauses. Compare
Storer v.
Brown, 415 U. S., at 728-736 (undertaking a
lengthy First and Fourteenth Amendment analysis of a California
rule that denied ballot access to any independent candidate for
Congress who had not severed his ties to a political party at least
one year prior to the immediately preceding primary election, or 17
months before the general election), with
id., at 746, n. 16
(dismissing as "wholly without merit" the notion that this rule
might violate the Qualifications Clauses). Term-limit measures have
tended to survive such review without difficulty. See,
e.
g., Moore v.
McCartney, 425 U. S. 946 (1976)
(dismissing an appeal from
State ex rel. Maloney v.
McCartney, 159 W. Va. 513, 223 S. E. 2d 607, on the ground
that limits on the terms of state officeholders do not even raise a
substantial federal question under the First and Fourteenth
Amendments).
To analyze such laws under the Qualifications Clauses may open
up whole new vistas for courts. If it is true that "the current
congressional campaign finance system ... has created an electoral
system so stacked against challengers that in many elections voters
have no real choices," Wertheimer & Manes, 94 Colum. L. Rev.,
at 1133, are the Federal Election Campaign Act Amendments of 1974
unconstitutional under (of all things) the Qualifications Clauses?
Cf.
Buckley v.
Valeo, 424 U. S. 1 (1976)
(upholding the current system against First Amendment challenge).
If it can be shown that nonminorities are at a significant
disadvantage when they seek election in districts dominated by
minority voters, would the intentional creation of
"majority-minority
926
districts" violate the Qualifications Clauses even if it were to
survive scrutiny under the Fourteenth Amendment? Cf.
Shaw v.
Reno, 509 U.
S. 630, 649 (1993) ("[W]e express no view as to whether [the
intentional creation of such districts] always gives rise to an
equal protection claim");
id., at 677 (STEVENS, J.,
dissenting) (arguing that States may draw district lines for the
"sole purpose" of helping blacks or members of certain other groups
win election to Congress). More generally, if "[d]istrict lines are
rarely neutral phenomena" and if "districting inevitably has and is
intended to have substantial political consequences,"
Gaffney v.
Cummings, 412 U. S. 735, 753
(1973), will plausible Qualifications Clause challenges greet
virtually every redistricting decision? Cf.
id., at 754
(noting our general refusal to use the Equal Protection Clause to
"attemp[t] the impossible task of extirpating politics from what
are the essentially political processes of the sovereign States");
see also
Burns v.
Richardson, 384 U. S. 73, 89, n. 16
(1966) (finding nothing invidious in the practice of drawing
district lines in a way that helps current incumbents by avoiding
contests between them).
The majority's opinion may not go so far, although it does not
itself suggest any principled stopping point. No matter how
narrowly construed, however, today's decision reads the
Qualifications Clauses to impose substantial implicit prohibitions
on the States and the people of the States. I would not draw such
an expansive negative inference from the fact that the Constitution
requires Members of Congress to be a certain age, to be inhabitants
of the States that they represent, and to have been United States
citizens for a specified period. Rather, I would read the
Qualifications Clauses to do no more than what they say. I
respectfully dissent.
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