Article I, Section 3, Clause 3 — Qualifications

ArtI.S3.C3.1 Overview of Senate Qualifications Clause

Under the Senate Qualifications Clause set forth at Article I, Section 3, Clause 3, Senators must be at least thirty years of age, a citizen for at least nine years, and an inhabitant of the state from which he or she is elected. While the Senate Qualifications Clause expressly requires inhabitancy at the time of the election, Congress has interpreted the Clause to require that Senators meet age and citizenship qualifications only at the time they take the oath of office.¹ Pursuant to Article I, Section 5, the Senate determines whether Senators-elect meet the required qualifications to be seated in the Senate.²

During the Constitutional Convention, the Framers adopted a minimum age requirement of thirty to ensure that Senators had sufficient maturity to perform their duties. Similarly, the Framers adopted a nine-year citizenship requirement to ensure that foreign-born Senators were loyal to, and knowledgeable about, the United States. Senate qualification requirements were more strenuous than those for the House, which required only that Members be twenty-five years of age and a citizen for at least seven years.³ Alexander Hamilton explained the disparity in the Senate and House age requirements as due to “the nature of the senatorial trust, which requiring greater extent of information and ability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages . . . .”⁴

Fixing the appropriate length of citizenship to be a Member of the Senate or House appears to have been the subject of significant debate at the Constitutional Convention, in part, because of the delegates’ different backgrounds. Pennsylvania delegate James Wilson, an immigrant from Scotland, a signatory to the Declaration of Independence, and a future Supreme Court Justice, argued for a minimal citizenship requirement based on his personal experiences of having been precluded from office earlier in his career because of citizenship requirements.⁵ Other delegates proposed much lengthier terms.⁶

Having considered terms ranging from four to fourteen years, the Framers’ adoption of a nine-year requirement appears to have compromised conflicting views on the subject. Explaining the adoption of a nine-year term in the Federalist No. 62, Alexander Hamilton wrote: “The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence in the national councils.”⁷ Hamilton stressed the Senate’s role in foreign affairs as further justifying a longer citizenship requirement, stating that “participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education.”⁸

By adopting an inhabitancy requirement, the Framers sought to ensure that Senators would represent the interests of their states.⁹ In his Commentaries on the Constitution of the United States, Justice Joseph Story noted “[I]t is manifestly proper, that a state should be represented by one, who, besides an intimate knowledge of all its wants and wishes, and local pursuits, should have a personal and immediate interest in all measures touching its sovereignty.”¹⁰

ArtI.S3.C3.2 When Senate Qualifications Requirements Must Be Met

While the Senate Qualifications Clause expressly requires a Senator-elect to reside in the state from which he is elected at the time of the election, it is less clear when a Senator-elect must meet the age and citizenship requirements. However, in 1935, the Senate established that a Senator-elect must only meet age and citizenship qualifications at the time he or she takes the oath of office.¹

In 1935, the Senate considered when a Senator-elect must meet the qualification requirements when former Senator Henry D. Hatfield of West Virginia and various West Virginia citizens challenged the seating of Senator-elect Rush Holt of West Virginia on the grounds that he had been elected to the Senate at the age of twenty-nine.² While Senator-elect Holt acknowledged that he had not been thirty at the time of the general election on November 7, 1934, or at the convening of the Seventy-Ninth Congress on January 3, 1935, he argued that he met the Senate qualification requirements because he did not seek to take the oath of office until after he turned thirty on July 19, 1935.³ In finding that Senator-elect Holt was entitled to the seat, the Committee on Privileges and Elections considered House of Representatives practices.⁴ The Committee observed that while Rep. John Young Brown of Kentucky was elected to the Thirty-Sixth Congress despite being underage, he qualified for a seat because he had waited until he was twenty-five to take the oath of office.⁵ Similarly, the Committee noted that while Austrian immigrant Henry Ellenbogen of Pennsylvania was elected to the House of Representatives in 1932 and his term began on March 4, 1933, Rep. Ellenbogen had waited until January 3, 1934 to take his oath of office and be seated in order to comply with the citizenship requirement.⁶

The Committee on Privileges and Elections also noted that Senators Henry Clay of Kentucky, Armistead Mason of Virginia, and John Eaton of Tennessee had been elected and “assumed the duties of the senatorial office before they were 30 years of age,” but concluded that their examples were not precedential as no one had challenged their seats in the Senate.⁷ In contrast, Albert Gallatin of Pennsylvania and General James A. Shields of Illinois were elected to the Senate, but were denied their seats because they did not meet the citizenship requirement.⁸ The Committee on Privileges and Elections distinguished Gallatin and Shields from Holt on the grounds that they had taken their seats despite not having met the citizenship requirement whereas Holt “‘was 30 years of age at the time when he presented himself to the Senate to take the oath and to assume the duties of the office.’”⁹

Ultimately, the Senate voted 62-17 in favor of Senator-elect Holt taking the oath of office.¹⁰ Consequently, the Senate has allowed Senators to be seated once they meet age and citizenship qualification requirements rather than requiring them to have met those requirements at the time of the election or at the beginning of the session of Congress for which they were elected.

ArtI.S3.C3.3 Congress’s Ability to Change Qualifications Requirements for Senate

The Supreme Court has held that Congress cannot legislate changes to Article I, Section 3, Clause 3 qualification requirements, which require a Senator to be at least thirty years of age, a United States citizen for nine years, and an inhabitant of the state from which he or she is elected.¹

During the Constitutional Convention, the Framers had debated whether Congress should have discretion to adopt additional qualification requirements for congressional membership but ultimately decided that such discretion would be too vulnerable to manipulation and might cause otherwise qualified persons to be excluded from Congress.² In particular, the Framers considered including a property requirement but the committee charged with recommending an appropriate amount could not agree and instead proposed that Congress decide.³ Rejecting granting Congress power to determine qualifications for membership, James Madison reasoned:

The qualifications of electors and elected were fundamental articles in a Republican

Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those

of either, it can by degrees subvert the Constitution. . . . Qualifications founded on

artificial distinctions may be devised, by the stronger in order to keep out partizans

[sic] of [a weaker] faction.⁴

Similarly, in the Federalist No. 60, Alexander Hamilton emphasized that stipulating qualification requirements in the Constitution would preclude wealthy citizens from using their influence to add property ownership criteria to be a Member of Congress at a later date.⁵

Until the Civil War, Congress appears to have generally conformed to the position adopted by Hamilton that the Constitution fixed the qualification requirements for membership in the Senate. But in July 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”—that they had never been, nor ever would be, disloyal to the United States Government.⁶ Subsequently, the Senate denied seats to certain Senators-elect following the Civil War. For instance, in 1868, the Senate voted to deny a seat to Philip F. Thomas of Maryland for “having voluntarily given aid, countenance, and encouragement to persons engaged in armed hostility to the United States . . . .”⁷

In 1969, the Supreme Court held in Powell v. McCormack that the House of Representatives could not impose additional qualification requirements.⁸ In 1995, the Supreme Court revisited Powell more broadly in U.S. Term Limits, Inc. v. Thornton where it considered whether States could impose additional qualifications for membership in the House of Representatives and Senate.⁹ In holding that the States could not, the Court reaffirmed its Powell holding as broadly applicable to Congress. The Court stated: “[W]e reaffirm that the qualifications for service in Congress are ‘fixed,’ at least in the sense that they may not be supplemented by Congress.”¹⁰ Consequently, Congress cannot legislate changes to the Senate’s qualification requirements.

ArtI.S3.C3.4 States’ Ability to Change Qualifications Requirements for Senate

In 1969, the Supreme Court established in Powell v. McCormack,¹ that the House of Representatives could not consider qualifications other than those set forth in Article I, Section 2, Clause 2 of the Constitution when judging whether Members-elect qualified for a seat in the House.² In 1995, the Supreme Court extended its Powell ruling in U.S. Term Limits, Inc. v. Thornton to hold that States cannot impose qualification requirements on membership in Congress.³

The Supreme Court’s Thornton ruling was consistent with the established congressional practice of not weighing state-added qualification requirements when considering whether Senators-elect qualified for Senate seats. In determining the eligibility of Senators-elect, the Senate appears to have conformed to Hamilton’s position in the Federalist No. 60 that the Constitution fixed the qualification requirements for Senators. Accordingly, the Senate allowed Senators-elect who had violated state qualification requirements to be seated. For instance, in 1856, the Senate seated Lyman Trumbull of Illinois although he had violated the Illinois constitution which barred state judges, such as Trumbull, from standing for election while a judge or the following year.⁴

In Thornton, Arkansas, along with twenty-two other states limited the number of terms Members of Congress could serve.⁵ 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.⁶ Powell, the Court found, however, did not conclusively resolve whether 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,⁷ the Court reasoned that even if states had possessed some original power in this area, they had ceded that power to the Federal Government.⁸ 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.”⁹

In reaching its decision, the Thornton Court explored the Constitution’s text, drafting, and ratification, as well as early congressional and state practices.¹⁰ 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 could have no reserved powers that were derived 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.’”¹¹ Because States could not have passed laws governing the National Government before the Nation’s Founding and the Constitution did not delegate power to states to set qualifications for Members of Congress, the states could not have such power.¹²

Thornton clarified that changing qualification requirements for Congress must be accomplished by constitutional amendment.¹³ In 2001, the Court relied on Thornton to invalidate a Missouri law requiring labels to 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.¹⁴