Article I, Section 2, Clause 2 — Qualifications

ArtI.S2.C2.1 Overview of House Qualifications Clause

The House Qualifications Clause set forth at Article I, Section 2, Clause 2 requires a Member to be at least twenty-five years of age, a United States citizen for seven years, and an inhabitant of the state from which he or she is elected at the time of election. The Framers designed these minimal requirements to give people freedom to choose the person who would best represent their interests in Congress. Explaining the impetus behind the adoption of these requirements at the Constitutional Convention, the writer of the Federalist No. 52 commented: “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.”¹

When determining the qualification requirements, the Framers gave careful consideration to what the office required.² The Framers reasoned that a twenty-five year age requirement would ensure that Members had sufficient maturity to perform their duties, while a seven-year citizenship requirement would allow foreign born citizens to participate in the government while ensuring they were knowledgeable about the United States and unlikely to be influenced by loyalty to the land of their birth.³ Finally, the Framers required Members to be inhabitants⁴ of the state from which they were elected so that they would be vested in representing the interests of the state. Discussing the residency requirements in his Commentaries on the Constitution of the United States, Justice Joseph Story stated:

The object of this clause, doubtless, was to secure an attachment to, and a just

representation of, the interests of the state in the national councils. It was supposed,

that an inhabitant would feel a deeper concern, and possess a more enlightened view of

the various interests of his constituents. And, in all events, he would generally possess

more entirely their sympathy and confidence.⁵

While Article I, Section 2, Clause 2 expressly requires state inhabitancy at the time of the election, Congress has interpreted the House Qualifications Clause to require only that Members meet age and citizenship qualifications at the time they take the oath of office.⁶ Thus, Congress has admitted persons, who were ineligible when elected, to the House of Representatives once they met age and citizenship criteria for membership in the House.⁷ Further, the Supreme Court held in Powell v. McCormack⁸ and U.S. Term Limits, Inc. v. Thornton⁹ that neither Congress nor the states, respectively, can add to the qualifications stipulated in the Constitution for membership in Congress.

ArtI.S2.C2.2 Ability of Congress to Change Qualifications for Members

The Framers appear to have intended that the House and Senate Qualifications Clauses would establish national standards for membership in Congress.¹ During debates over qualifications for Members of Congress, delegates to the Constitutional Convention considered and rejected giving Congress discretion to set qualifications requirements on the grounds that such discretion would be susceptible to manipulation and thereby would risk excluding otherwise qualified persons from the national legislature.² In the Federalist No. 60, Alexander Hamilton addressed the exclusivity of the constitutional qualification requirements, stating: “The qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature.”³

Pursuant to Article I, Section 5, Clause 1, the Constitution provides for each House of Congress to determine whether Members-elect have met the qualification requirements for congressional membership. Article I, Section 5, Clause 1 states: “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.”⁴

In determining eligibility to serve in Congress, Congress does not appear to have deviated from Hamilton’s position that qualifications for Congress “are unalterable by the legislature” until the Civil War.⁵ But in July of 1862, Congress passed a law requiring all persons appointed or elected to the United States Government to take an oath—known as the “Ironclad Test Oath”⁶—that they had never been, nor ever would be, disloyal to the United States Government.⁷ Subsequently, both Houses refused seats to several persons because of charges of disloyalty.⁸ Thereafter, Members sometimes challenged seating Members-elect on grounds such as moral turpitude and bribery with disparate and unpredictable results.⁹

In 1969, the Supreme Court conclusively established in Powell v. McCormack¹⁰ that House qualification requirements set forth at Article I, Section 2, Clause 4, and possibly any other qualification requirements set forth in the Constitution, are exclusive¹¹ and Congress cannot exclude Members-elect, who meet such requirements.¹² In Powell, Adam Clayton Powell, Jr. was re-elected to serve in the House of Representatives for the 90th Congress. The House of Representatives, however, denied him a seat based on findings by a Special Subcommittee on Contracts of the Committee on House Administration that Powell had engaged in misconduct during the 89th Congress.¹³

In determining that Powell was entitled to a declaratory judgment that he had been unlawfully excluded from Congress, the Supreme Court examined the Constitution, Constitutional Convention debates, and how Congress had applied the House qualification requirements in the past. Looking to English parliamentary and colonial legislative practice, the Court noted that these bodies had only excluded officers when they failed to meet standing qualifications.¹⁴ The Court further noted that the Constitutional Convention considered and rejected provisions that would have allowed Congress to create property or other qualification requirements without limitation as unworkable.¹⁵ And the Court recognized that Alexander Hamilton and James Madison in the Federalist Papers and Hamilton at the New York ratifying convention had stated that the Constitution stipulated exclusive qualification requirements for Members of Congress.¹⁶

Examining early congressional practices, the Court noted that Members of Congress, many of whom had participated in the Constitutional Convention, generally took the view that Congress could only exclude Members-elect who failed to meet qualifications expressly prescribed in the Constitution and that this position went unchallenged until the Civil War.¹⁷ Finally, the Court reasoned that qualification requirements should be construed narrowly because, to do otherwise, would deprive voters of their choice as to who should represent them in Congress. Referencing James Madison, the Court stated: “A fundamental principle of our representative democracy is . . . ‘that the people should choose whom they please to govern them.’ . . . [T]his principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.”¹⁸ Thus, the Court reasoned, if the House excluded Powell based on qualifications other than those stipulated in the Constitution, the House would impinge on the interests of Powell’s constituents to choose their preferred candidate.¹⁹

ArtI.S2.C2.3 Ability of States to Add Qualifications for Members

In 1969, the Supreme Court established in Powell v. McCormack¹ that Congress may not consider qualifications other than those set forth in the Constitution when judging whether Members-elect qualified for Congress pursuant to Article I, Section 5, Clause 1.² In 1995, the Supreme Court in U.S. Term Limits, Inc. v. Thornton extended its findings in Powell to prohibit states from imposing qualification requirements on congressional membership.

The Supreme Court’s Thornton holding was consistent with long-established congressional practice not to weigh state-added qualifications when considering whether a Member-elect qualified for a congressional seat. For instance, in 1807, the House seated a Member-elect although he was in violation of a state law requiring Members of Congress to have resided in their congressional districts for at least twelve months, the House resolving that the state requirement was unconstitutional.³

In Thornton, Arkansas, along with twenty-two other states, limited the number of terms that Members of Congress could serve.⁴ Reexamining Powell and “its articulation of the ‘basic principles of our democratic system,’” the Thornton Court reaffirmed that “the qualifications for service in Congress set forth in the Constitution are ‘fixed,’” in that Congress may not supplement them.⁵ Powell, the Court found, however, did not conclusively resolve the Thornton issue as to whether, during the framing of the Constitution, the states had retained power to add qualification requirements for membership in Congress. Recognizing that the Framers clearly intended for the Constitution to be the exclusive source of congressional qualifications,⁶ the Court reasoned that even if states had possessed some original power in this area, they had ceded that power to the Federal Government.⁷ The Court, however, held that the power to add qualifications “is not within the ‘original powers’ of the States, and thus not reserved to the States by the Tenth Amendment.”⁸

Both the Thornton majority and dissent hinged their analyses on whether states had power to impose additional qualification requirements on candidates for Congress and, if so, whether they had ceded such power when they ratified the Constitution. To this end, the Court explored the Constitution’s text, drafting, and ratification, as well as early congressional and state practices.⁹ Observing that state powers were either (1) reserved by states from the Federal Government under the Constitution or (2) delegated to states by the Federal Government, the majority reasoned that states had no reserved powers that emanated from the Federal Government. Quoting Justice Joseph Story, the Court noted: “‘[S]tates 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.’”¹⁰ Because states had no powers to legislate on the Federal Government prior to the Nation’s Founding and the Constitution did not delegate to states power to prescribe qualifications for Members of Congress, the Court held the states did not have such power.¹¹

In contrast, the dissent reasoned that the Constitution precluded states only from exercising powers delegated to the Federal Government, either expressly or implicitly,¹² or which the states had agreed not to exercise themselves.¹³ Consequently, states retained all other powers.¹⁴ The dissent stated “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.”¹⁵ Accordingly, the dissent reasoned, the Constitution’s silence on whether states could impose additional qualifications meant the states retained this power.

Thornton reaffirmed that any change to qualifications for membership in Congress cannot come from state or federal law, but only through the amendment process set forth in Article V of the United States Constitution.¹⁶ Six years later, the Court relied on Thornton to invalidate a Missouri law requiring that labels be placed on ballots alongside the names of congressional candidates who had “disregarded voters’ instruction on term limits” or declined to pledge support for term limits.¹⁷

The Supreme Court has distinguished state requirements for appearing on a ballot as a third-party candidate from qualification requirements for membership in Congress. In Storer v. Brown, the Court noted that a California law setting criteria to be listed as a third-party candidate did not violate Article I, Section 2, Clause 2. The Court reasoned that the plaintiffs would not have been disqualified if “they had been nominated at a party primary or by an adequately supported independent petition and then elected at the general election.”¹⁸ As such, the Court recognized that state requirements for being listed on the ballot was consistent with the state’s interest in ensuring that a candidate listed on a ballot is a “serious contender.”¹⁹