Article I, Section 2, Clause 2:

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.

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

Footnotes

1

Powell v. McCormack, 395 U.S. 486 (1969).

2

U.S. Const. art I., § 5, cl. 1 ( “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . .” ).

3

1 Hinds’ Precedents of the House of Representatives § 414 (1907). See, e.g., Davis v. Adams, 400 U.S. 1203 (1970) (staying enforcement of statute requiring “incumbent of a state elective office to resign before he can become a candidate for another office” when election in which state officers were running for the House of Representatives was imminent but noting that the state could challenge the candidates as having failed to qualify in the event they won their elections).

4

All but two of the state initiatives to impose term limits were citizen initiatives. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

5

Id. at 798.

6

Id.

7

Id. at 801.

8

Id. at 800.

9

See Kathleen M. Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).

10

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802 (1995) (quoting Joseph Story, The Commentaries on the Constitution of the United States (1833)).

11

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 798–805 (1995). See also id. at 838–45 (Kennedy, J., concurring). The Court applied similar reasoning in Cook v. Gralike, 531 U.S. 510, 522–23 (2001), invalidating ballot labels identifying congressional candidates who had not pledged to support term limits. Because congressional offices arise from the Constitution, the Court explained, states would have had no authority to regulate these offices prior to the Constitution that they could have reserved, and the ballot labels were not valid exercise of the power granted by Article I, § 4 to regulate the “manner” of holding elections.

12

E.g., U.S. Const. art. I, § 8.

13

E.g., U.S. Const. art. I, § 10.

14

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 845 (1995) (Thomas, J., dissenting) ( “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.” ).

15

Id. at 848 (Thomas, J., dissenting). See generally id. at 846–65.

16

Id. at 837.

17

Cook v. Gralike, 531 U.S. 510 (2001).

18

Storer v. Brown, 415 U.S. 724, 746 & n.16 (1974).

19

Id. at 746.