Article I, Section 3, Clause 3:

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.

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

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

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

4

Hind’s Precedents of the House of Representatives § 416 (1907).

5

All but two of the state initiatives to impose term limits were citizen initiatives. Thornton, 514 U.S. 779.

6

Id. at 798.

7

Id.

8

Id. at 801.

9

Id. at 800.

10

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

11

Thornton, 514 U.S. at 802 (quoting Joseph Story, The Commentaries on the Constitution of the United States (1833)).

12

Id. at 798–805. 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 a valid exercise of the power granted by Article I, § 4 to regulate the “manner” of holding elections.

13

Id. at 837.

14

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