Constitutional Law Cases: Rehnquist Court
1990 - 1999
U.S. Supreme Court
U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
U.S. TERM LIMITS, INC., ET AL., PETITIONERS v. RAY THORNTON ET AL.
WINSTON BRYANT, ATTORNEY GENERAL OF ARKANSAS, PETITIONER v. BOBBIE E. HILL
ET AL. Nos. 93-1456, 93-1828 CERTIORARI TO THE SUPREME COURT OF ARKANSAS
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. 6-61.
(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 Page II that the constitutional
qualifications for congressional service are "fixed," at least in the sense that they
may not be supplemented by Congress. Pp. 6-18.
(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 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. 18-50.
(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 Page III 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 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. 50-60.
(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. 60-61.
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. THOMAS, J., filed
a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR and SCALIA, JJ., joined.
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 1]
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:
"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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 2] 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:
"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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___
(1995) , 3] herein limit the terms of the 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, 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,
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 4] 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 mandated in Article 1 provides
the tenor and the fabric for representation in the Congress. Piecemeal restrictions
by State would fly [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 5]
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."
316 Ark., 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 consolidated the cases for argument. See [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 6] 512 U.S. ___ (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 from adding to or altering 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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 7] attempted exclusion of a duly elected
Member of Congress. The principal issue was whether the power granted to each House
in Art. I, 5, 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 8] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 9] 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 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 England 1411 (1782)
(Parl. 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., at 528, quoting 16 Parl. Hist. Eng. 589, 590 (1769).
Against this historical background, we viewed the Convention debates as manifesting
the Framers' intent [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 10]
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 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.'" [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 11] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 12]
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 respect to Congress, the Framers intended the Constitution to establish fixed
qualifications. 9 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 13]
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 emphasized the egalitarian concept that the opportunity to be
elected was open to all. 11 We noted in particular Madison's statement in The Federalist
that [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 14] "`[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 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 [
U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 15] 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 Cong. 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 Parl. 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 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. __ [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 16] (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 ___ (slip
op. at 12-13). 12 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 17]
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
Clause - at 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
In sum, after examining Powell's historical analysis and its articulation of the
"basic principles of our [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 18] 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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 19] (1950); In re Opinion of Judges, 79 S.
D. 585, 587, 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) ("the 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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___
(1995) , 20] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 21] 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 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.
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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 22] 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) (emphasis added);
see also New York v. United States, 505 U.S. ___, ___ (slip op., at 8-9) (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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 23] 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
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 the 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 24] 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 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 16.
Two other sections of the Constitution further support our view of the Framers' vision.
First, consistent with [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
25] 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 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 prescribed in each State by the legislature thereof." 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. I." United States v. Classic, 313 U.S. 299,
315 (1941). Cf. Hawke v. Smith, 253 U.S. 221 (1920) ("[T]he power to ratify a proposed
amendment to the Federal Constitution [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 26] 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.
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 9-12. There is, however, additional historical evidence that pertains directly
to the power of 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. [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 27]
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,
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 28] particular profession
of religious faith." Ibid. 18 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 29]
Madison emphasized this same idea in Federalist 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 "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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 30] 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
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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 31] 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 Nat[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 47-48. As the dissent
concedes, post, at 53, however, the Framers were unquestionably concerned that the
States would simply not hold elections for federal officers, and therefore the Framers
gave Congress [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 32] the
power to "make 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. 1, 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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 33] but not with the understanding that they can be altered by the States.
If the States had the right to prescribe additional qualifications - such as property,
educational, or professional qualifications - for 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 34]
of ratification expressed concern about the "abandonment in every instance of the
necessity of rotation in office." 24 At several ratification conventions, participants
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 35] 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:
"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 [
U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 36] 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 agreement that its premise was unsound, and that the
power to add qualifications was one that the Constitution denied the States. 27 [
U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 37]
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 38]
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 Cong. 871 (1807) (emphasis added). 28
The Chairman of the House Committee on Elections elaborated during debate:
"`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 Cong. 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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 39] only on a simple resolution: "Resolved,
That William McCreery is entitled to his seat in this House." 17 Annals of Cong. 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___
U.S. ___ (1995) , 40] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 41] 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: "[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 [ U.S. TERM LIMITS, INC. v.
THORNTON, ___ U.S. ___ (1995) , 42] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 43] 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 22-23. 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 17th 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).
The Framers deemed this principle critical when they discussed qualifications. For
example, during the debates on residency requirements, Morris noted that in [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 44] 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 428-429 (1819) ("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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 45]
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 18-19. 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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 46] Warren 416-417. 33 Despite
this near uniformity, only one 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, [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 47] 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 state elected officials yet placed
no property qualification on its congressional representatives. 35 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 48]
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 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
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 49] 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 50]
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.
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. [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 51]
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. 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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___
(1995) , 52] 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 v. Forssenius, 380 U.S., at 540 -541.
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. Indeed, 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 [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 53] 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 write-in
candidates have only a slight chance of victory. 45 But even if petitioners [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 54] 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
California, 271 U.S. 583, 594 (1926).
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 55] 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 9-11, 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 candidates from federal office. During the
Convention debates, for example, Madison illustrated the procedural focus of the Elections
Clause by [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 56] 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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 57] power to dictate 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 abridgement of fundamental rights." Tashjian v. Republican Party of Connecticut,
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 Election
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 ___ (slip op. at 5), and in "guard[ing]
against irregularity and error in the tabulation of votes," Roudebush v. Hartke, 405
U.S. 15 , [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 58] 25 (1972).
In short, we have approved of state regulations designed to ensure that 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 ___ (slip
op. at 4), 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 [ U.S. TERM LIMITS, INC.
v. THORNTON, ___ U.S. ___ (1995) , 59]
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 79, and suggesting that the true intent of Amendment 73 was not to evade the Qualifications
Clause but rather to simply "level the playing field," post, at 83. Neither of these
objections has merit.
As to the first, it is simply irrelevant to our holding today. As we note above in
n. 45, supra, 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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 60] 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 52, 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.
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 Nation 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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 61] 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 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.
Footnotes
[ Footnote 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.
[ Footnote 2 ] As we explained, that term may describe more than the provisions quoted,
supra, at 1:
"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." [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___
(1995) , 7] 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 on whether Congress and the States may add qualifications to those that appear
in the Constitution.
[ Footnote 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 . . . ."
[ Footnote 4 ] Justice 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.
[ Footnote 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.
[ Footnote 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.
[ Footnote 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 qualification as such, but
rather at the delegation to the Congress of the discretionary power to establish any
qualifications." Id., at 534.
[ Footnote 8 ] Our examination of the history also caused us to reject the argument
that the negative phrasing of the Clauses indicated that [ U.S. TERM LIMITS, INC.
v. THORNTON, ___ U.S. ___ (1995) , 12] 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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 14] 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").
[ Footnote 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 13] 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 25-26,
or to the dissent's assertion that that argument is completely without merit.
[ Footnote 10 ] The principle also incorporated the more practical concern that reposing
the power to adopt qualifications in Congress would lead to a self-perpetuating body
to the detriment of the new republic. See, e. g., 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).
[ Footnote 11 ] Contrary to the dissent's suggestion, post, at 37, 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.
[ Footnote 12 ] JUSTICE THOMAS'S 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 4, 33, 43. 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 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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 17] against interstate commerce. However,
though Justice Thomas has endorsed just that argument, see, e. g., Oklahoma Tax Comm'n
v. Jefferson Lines, Inc., 514 U.S. __ (1995) (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., id., at __ (slip op., at 3-4); Bendix
Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988).
[ Footnote 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").
[ Footnote 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
Denv. L. Rev. 1 (1992); Comment, Congressional Term Limits: Unconstitutional by Initiative,
67 Wash. L. Rev. 415 (1992).
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.
[ Footnote 15 ] Thus, contrary to the dissent's suggestion, post, at 13, 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.
[ Footnote 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.
[ Footnote 17 ] The Clauses also reflect the idea that the Constitution treats both
the President and Members of Congress as federal officers.
[ Footnote 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 Clause was to set minimum qualifications
that would prevent the States from sending incompetent representatives to Congress;
in other words, Madison viewed the Clause as preventing the States from opening the
door to this part of the federal service too widely. See post at 60-62.
The text of 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 61, and suggests that Madison's comments do not reflect "an implicit criticism
of the States for setting unduly high entrance barriers," post, at 62. 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 elected officials. As we describe in some detail, infra,
at 45-49, 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.
[ Footnote 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 48. See also ibid.
("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.
[ Footnote 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.
[ Footnote 21 ] The dissent's arguments concerning these provisions of the Constitution,
see post, at 48-53, 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 48-49. 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 53. 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.
[ Footnote 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.
[ Footnote 23 ] 2 Elliot's Debates 309-310 (N. Y., Smith). See also id., at 287-288
(N. Y., G. Livingston) (Senators will enjoy "a security of [ U.S. TERM LIMITS, INC.
v. THORNTON, ___ U.S. ___ (1995) , 34] 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
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) ("as 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").
[ Footnote 24 ] Letter of December 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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 35] that Jefferson "himself did not
entertain serious doubts of its correctness." Post, at 32, n. 14.
[ Footnote 25 ] See n. 40, infra.
[ Footnote 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.
[ Footnote 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 46, it seems to us irrelevant that the draft in question did not include a comparable
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 37] 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 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.
[ Footnote 28 ] We 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 Cong. 873 (1807).
[ Footnote 29 ] See, e. g., Powell, 395 U.S., at 544 -546 (noting examples).
[ Footnote 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 ("Money is not made a requisite the places
of senators are wisely left open to all persons of suitable age and merit").
[ Footnote 31 ] Cf. Hawke v. Smith, 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").
[ Footnote 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 45]
method of its adoption. This is proper, 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 26, 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.
[ Footnote 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 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 1000 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).
[ Footnote 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 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.
[ Footnote 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 of land 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.
[ Footnote 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").
[ Footnote 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 space
of [blank] after the expiration of their term of service"). See also n. 22, supra.
[ Footnote 38 ] See, e. g., G. Wood, Creation of the American Republic, 1776-1787,
p. 140 (1969) (noting that seven of the ten State Constitutions drafted in 1776-1777
provided for term limits on their state executives); see also App. to Brief for State
Petitioner 1b - 34b (describing provisions of State Constitutions).
[ Footnote 39 ] 3 Thorpe 1695-1697 (Maryland); 4 id., at 2467 (New Hampshire); 5
id., at 3085 ((Pennsylvania); 5 id., at 2793 (North Carolina).
[ Footnote 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
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 49] 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.
[ Footnote 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 50]
representatives. The dissent relies first on the obvious but seemingly irrelevant
proposition that the state legislatures were larger than state congressional delegations.
Post, at 74, 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 rational is perfectly consistent with our view that the general understanding
at the time was that States lacked the power to add qualifications.
[ Footnote 42 ] Justice 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).
[ Footnote 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 one has been won by a write-in candidate. In over 20,000 House elections
since the turn of the century, only five 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").
[ Footnote 44 ] Contrary to the dissent, post, at 80, 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
53-54, we do not rely on the State Court's finding on this point. See also infra,
at 59.
[ Footnote 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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 54] 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. ___, ___,
n. 7 (slip op., at 9, 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").
[ Footnote 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."
[ Footnote 47 ] See 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").
[ Footnote 48 ] Nor 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 [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 59] the public generally"). As the Ninth Circuit recognized
in upholding a similar resign-to-run statute from Arizona, "[t]he 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 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.
[ Footnote 49 ] See U.S. Const., Amdt. 22 (1951) (limiting Presidents to two 4-year
terms).
[ Footnote 50 ] See, e. g., Amdt. 17 (1913) (direct elections of Senators); Amdt.
19 (1920) (extending suffrage to women); Amdt. 22 (1951) (Presidential term limits);
Amdt. 24 (1964) (prohibition against poll taxes); Amdt. 26 (1971) (lowering age of
voter eligibility to 18). [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 1]
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___
(1995) , 2] 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 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. The Federalist No. 39, at 244,
245 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 3] (emphasis omitted).
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
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 5, 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 4-6. 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 2-3. But in McCulloch v. Maryland, the Court set
forth its authoritative rejection of [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 4] 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 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. [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 5] Lopez, 514 U.S.
___ (1995).
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,
U.S. Const., 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 delegations from each
State have one vote, Art. II, 1, cl. 3, and Amdt. 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 6] 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 abridgement 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 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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
7] 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 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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 8] 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 people 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.
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 1]
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 2, 13, 14, 15, 41. 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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 2] 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.
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 [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 3] Elliot) (remarks of James Madison at the Virginia convention).
1
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, "[t]he 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," Amdt.
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 4] 10 - 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 5] 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 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"); Amdt. 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
6] 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
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. [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 7]
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
which existed before." Ante, at 22. 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 8] 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 people 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 pre-empt 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 9] 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 22. 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. ___, ___ (1992) (slip op., at 8-9). The question 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 22-23. 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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 10] 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]."
Id., 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 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," Amdt. 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 11] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
12] power could not fall into the category of "reserved" powers anyway. 6 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 13]
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. Society 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 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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 14] 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 23-24, 26. 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 23-24. 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 24, 61.
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 coming together of representatives from distinct entities. 7 In keeping
with the complexity of our federal [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 15] 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 5-6. 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 4. 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 National Government and its
citizens, the selection of legislative representatives." See ante, at 5. 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. [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 16]
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. XIV, 1, and that national citizenship (particularly after the
ratification of the Fourteenth Amendment) "has privileges and immunities protected
from state abridgement by the force of the Constitution itself," ante, at 6. These
facts are indeed "beyond dispute," ante, at 7, 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 5. 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 23, 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 arrangement must baffle the
majority, 8 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 17] 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
24-25. 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 30; 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 enjoyed the reserved power to supplement
the federal salary. 3 id., at 315 (remarks at the Virginia ratifying convention).
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 18]
As for the fact that a State has no reserved power to establish qualifications for
the office of President, see ante, at 24, 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 [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 19] Constitution 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 "`spring[s] out of the existence of the national government.'" See
ante, at 22.
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 25-26. 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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 20] 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."
See ante, at 25. 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). 10 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 21]
Constitutional provisions that impose affirmative duties on the States are hardly
inconsistent with the notion of reserved powers.
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 bare-bones 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 18-19.
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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 22] 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 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 statute legislature, they can be less so. See Tashjian v. Republican
Party of Connecticut, 479 U.S. 208, 225 -229 (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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 23] 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 26. Because I do not read those provisions
to impose 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
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 24] 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 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: "no 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 25] ante,
at 11-12, 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
qualifications. 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." 2 Commentaries
on the Constitution of the United States 624 (1833); see also ante, at 12, 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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 26] 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
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 12, n. 9, and 36,
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 [ U.S. TERM LIMITS, INC. v.
THORNTON, ___ U.S. ___ (1995) , 27] the Framers considered essential to protect the
competence of the National Legislature. 11
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. 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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 28] 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. ___, ___
(1992) (Stevens, J.) (slip op., at 11) (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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 29] 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 44. 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 30] 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 Members of Congress be United
States citizens meant different things in different States. The very first contested-election
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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 31] 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:
"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
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 32] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 33] 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 16, 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 7. Contrary to the
majority's suggestion, then, the critical question in Powell was whether 5 conferred
a qualification-setting power not whether the Qualifications 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") [ U.S. TERM LIMITS, INC. v.
THORNTON, ___ U.S. ___ (1995) , 34] with ante, at 8 and 11-12, 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 12, n. 9 (describing the Qualifications Clauses merely
as an independent basis for the result reached in Powell). 15 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 35]
The fact that the Framers did not grant a qualification-setting 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 13, 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 qualification-setting 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 42. 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 [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 36] the majority mentions, Wilkes's
district repeatedly elected him to the House of Commons, only to have a majority of
the representatives of other districts frustrate their will by voting to exclude him.
See ante, at 9. 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 forbid 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., Amdt. 7. [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 37]
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 Framers' 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 13-14; see also ante,
at 41-42. 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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___
(1995) , 38] 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 13, n. 11; see also ante, at 41 (deriving
the "egalitarian 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 13-14, 41-42,
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
office. 17 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 39] One should
not lightly assume that Madison 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 11 (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 [ U.S. TERM LIMITS, INC.
v. THORNTON, ___ U.S. ___ (1995) , 40] 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
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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 41] 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.
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. [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 42]
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 30, n. 19. In the
limited area of congressional elections, however, the Framers themselves 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
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 43] 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.
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 12, 15, 18, it does not establish "the Framers"
intent that the qualifications in the Constitution be fixed and exclusive," ante,
at 9-10; it shows only that the Framers did not intend Congress to be able to enact
qualifications laws. 18 If anything, the [ U.S. TERM LIMITS, INC. v. THORNTON, ___
U.S. ___ (1995) , 44]
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 45] 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
46] 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 36, n. 27. 19 But the same draft that contained the exclusivity language
in the House Qualifications Clause contained no 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.
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 47]
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 36-37,
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 29-33 (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 29. But even if the majority's reading of its evidence were correct,
the most that one could [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 48] 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 39-43. 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, p. 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 30-31; 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 30-31. These 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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 49] 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 32, 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 29. 20 In fact, the Clause [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 50] 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, 2 - including 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 24, 32-33, 44. There was no recorded discussion of this provision in
the Philadelphia Convention, and it appears simply to adopt the practice of [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 51] England's Parliament. See
n. 18, supra. According to the majority, however, 5 implies that the Framers could
not have intended state law ever to "provide the standard for judging a Member's eligibility."
Ante, at 33.
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 United States v. Nixon, 506 U.S. ___, ___ (1993) (slip op., at 12-13) (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. It would hardly be strange
if each House had to do precisely the same thing in judging "Qualifications." Indeed,
even on [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 52] 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 29-31.
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 33. 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
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 53] authority with respect
to any matters of substance that were left to the States. See ante, at 31. 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.
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 20, 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 35-36. Indeed,
the majority itself accepts this proposition. See ante, at 55 (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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 54] 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 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 18-19. 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 I'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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 55] 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.
The majority's only response is that my reading of the Constitution would permit
States to use their qualification-setting 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 32.
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 56] ("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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 57]
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 50-52, Congress obviously would have not only 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 58]
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 33-36. For the majority, this void is "compelling" evidence that "unquestionably
reflects the Framers' common understanding that States lacked that power." Ante, at
33, 36. 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 59] 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 35-36.
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 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). [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 60]
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 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 27.
It is true that 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 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 61] 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 term-limits 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 62] 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 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 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 28, 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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 63] 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 ante, at 28, n. 18, and 47, 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 context 29 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 disqualifications 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). [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___
(1995) , 64]
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.
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 65] 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 66]
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, [ U.S. TERM LIMITS, INC.
v. THORNTON, ___ U.S. ___ (1995) , 67] Edward Carrington (an opponent of the district
residency requirement) expressed his view that the requirement "may exceed the powers
of the Assembly," 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 [ U.S. TERM LIMITS, INC. v.
THORNTON, ___ U.S. ___ (1995) , 68] five original 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___
U.S. ___ (1995) , 69]
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 49, 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 19. [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 70]
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 n. 31, supra.
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 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 49, 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 49, n. 41, and 47, n. 35. But the majority concedes that "Article VI
of the Federal Constitution . . . prohibited States from imposing similar qualifications
on federal legislators." Ante, at 47, n. 35. As discussed above, the constitutional
treatment of religious qualifications tends [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 71] to undermine rather than support the majority's case. See
supra, at 63.
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 48-49. 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. See G. Wood, Creation of
the American Republic, 1776-1787, p. 439 (1969).
It is true that under the Articles of Confederation, four States had imposed term
limits on their delegates to Congress. See ante, at 48. 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 48, it appears that at the time of the framing only Pennsylvania
imposed any restriction on the re-election 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 72] 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 34-35; cf. ante, at 48-49, 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 (Virginia) (similar).
If the majority is correct that these conventions also "voiced support for term limits
for Members of Congress," see ante, at 48, 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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 73] 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 re-flected the view that
States could supplement the Qualifications Clauses. See supra, at 65, and n. 31. 36
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 46, n. 33, and that four of these constitutions were revised shortly
after the framing but continued to impose such requirements, see ante, at 47, and
n. 35. Only one State, by contrast, established a property qualification for the Federal
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 74] 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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 75] the fact remains that 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.
As the majority concedes, "`congressional practice has been erratic'" and is of limited
relevance anyway. Ante, at 40-41 (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 37-40. 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. McCormack. See ante, at 37-39. But the Court's discussion
- both in Powell and today - is misleading. [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 76]
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 Cong. 871 (1807);
ante, at 37-38. 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 Cong. 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 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 77] 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 congressional
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 78] 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. Comp. 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. I. 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 farther.
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 Tr. of Oral
Arg. 53-54; cf. ante, at 51. 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. [ U.S. TERM LIMITS, INC.
v. THORNTON, ___ U.S. ___ (1995) , 79]
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 53, 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.
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
59. But the majority - which, after all, bases its holding on the asserted exclusivity
of the Qualifications [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
80] 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 53. 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[ly]" worse off than they
would be in its absence - an unassailable proposition that petitioners have conceded.
In the current posture of this case, indeed, it would have been extremely irregular
for the Arkansas Supreme Court to have gone any farther. Disputed questions of fact,
in Arkansas as elsewhere, generally are resolved at trial rather than on appeal from
the entry of summary judgment. See Ark. Rule Civ. Proc. 56. 40 Accordingly, the majority
explicitly disclaims any [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 81] reliance on the state court's purported finding about the effect of Amendment
73. See ante, at 53, 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 52.
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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
82] Court" has told us. Even the plurality 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 54 (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 52. 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 85. 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 52, 60. In reaching this conclusion at the summary-judgment
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. [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 83] One of petitioners' central
arguments is that congressionally conferred advantages have artificially inflated
the pre-existing electoral chances of the covered candidates, and 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 54. 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 84]
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 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 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 (1989); see
also Kristol, Term Limitations: Breaking Up the Iron Triangle, 16 Harv. J. L. & Pub.
Policy 95, 97, and n. 11 (reporting that in the 100th Congress, as many Representatives
died as were defeated at the polls). Even in the November 1994 elections, [ U.S. TERM
LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 85] which are widely considered to
have effected the most sweeping change in Congress in recent memory, 90 percent 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 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 54. 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 [ U.S. TERM LIMITS, INC.
v. THORNTON, ___ U.S. ___ (1995) , 86] 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.
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
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 87] . . . has created
an electoral system so stacked against challengers that in many elections voters have
no real choices," Wertheimer & Manes, supra, 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 districts" violate the Qualifications Clauses even
if it were to survive scrutiny under the Fourteenth Amendment? Cf. Shaw v. Reno, ___
U.S. ___, ___ (1993) (slip op., at 17) ("we express no view as to whether [the intentional
creation of such districts] always gives rise to an equal protection claim"); id.,
at ___ (slip op., at 2) (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 [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 88] 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.
[ Footnote 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 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 12, n. 8.
[ Footnote 2 ] The concurring opinion appears to draw precisely the opposite conclusion
from the passage in McCulloch that contains this sentence. See ante, at 3-4. 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 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).
[ Footnote 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 2.
[ Footnote 4 ] Despite the majority's odd suggestion to the contrary, see ante, at
16, n. 12, I fully agree with this sensible position. See supra, at 4.
[ Footnote 5 ] Though cited by the majority, see ante, at 22, 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").
[ Footnote 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 22-23 (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 4 Wheat., 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:
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 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 18. It does not follow,
however, that the people of a single State may not prescribe qualifications for their
own representatives in Congress.
[ Footnote 7 ] See 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").
[ Footnote 8 ] The 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 24 (citing Art. I, 5, cl. 1). But the power to act as
"Judge" under Art. I, 5, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 17] 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 51-52, 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.
[ Footnote 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.
[ Footnote 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 [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 21] 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 52-53.
[ Footnote 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).
[ Footnote 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).
[ Footnote 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, when
Congress passed an exclusive naturalization law. See J. Kettner, Development of American
Citizenship, 1608-1870, pp. 242-243 (1978).
[ Footnote 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 motives." See ante, at 34, 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.
[ Footnote 15 ] The majority also errs in its interpretation of Nixon v. United States,
506 U.S. ___ (1993). See ante, at 16, n. 12. In dictum, Nixon did refer to "the fixed
meaning of `[q]ualifications' set forth in Art. I, 2." 506 U.S., at ___ (slip op.,
at 12). 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 51. There would have been no occasion for Nixon to extend Powell: the only [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 35] 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.
[ Footnote 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."
[ Footnote 17 ] For 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 42, n. 30 (quoting "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 41. 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 disqualifications, 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.
[ Footnote 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 10-11.
The defeat of this proposal - like the defeat of Gouverneur Morris' motion to drop
the words "with regard to property" [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S.
___ (1995) , 44] 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 ante,
at 10. But the majority itself properly dispels this false impression. See ante, at
13, 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 11. But as the majority concedes,
when Hamilton wrote [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 45]
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 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 9.
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 [ U.S. TERM LIMITS,
INC. v. THORNTON, ___ U.S. ___ (1995) , 45] 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.
[ Footnote 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 36, 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 language was unusual for their time.
[ Footnote 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 29. 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 29. The Elector-Qualifications Clause avoided this problem because the various
state constitutions controlled who could vote in elections for the most numerous branch
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 50] 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 constitutional
law, 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).
[ Footnote 21 ] Likewise, the Constitution requires the States to appoint Presidential
[ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 57] 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).
[ Footnote 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___
U.S. ___ (1995) , 58] candidates.
[ Footnote 23 ] As the majority notes, see ante, at 60 and 33, n. 22, the Philadelphia
Convention had dropped without discussion a portion of the original Randolph Resolutions
calling for Members of the House of Representatives "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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 59] 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 61, and n. 50.
[ Footnote 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.
[ Footnote 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.
[ Footnote 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.
[ Footnote 27 ] See Md. Const. of 1776, Art. XXVII, in 3 Thorpe 1695; N. H. Const.
of 1784, Pt. II, in 4 Thorpe 2467.
[ Footnote 28 ] The 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 28, n. 18; see also ante, at 29 (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 38-39.
[ Footnote 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.
[ Footnote 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).
[ Footnote 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 been Tennessee residents for three years [ U.S. TERM LIMITS, INC. v. THORNTON,
___ U.S. ___ (1995) , 67] 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).
[ Footnote 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 and 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 clamour, 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).
[ Footnote 33 ] The records show that Maryland's House of Delegates put the [ U.S.
TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 68] district residency requirement
to a separate vote and approved it by a margin of 41-24. 2 First Federal Elections
129-130 (summarizing proceedings from Dec. 3, 1788). A subsequent effort to jettison
the requirement lost by a vote of 39-28. Id., at 132-133 (summarizing proceedings
from Dec. 10, 1788). Language in Maryland's second election law confirms that 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).
[ Footnote 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 36-12, 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 [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
70] 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 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 282-288. 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 from
electing 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.
[ Footnote 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 49, n. 40.
[ Footnote 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 39-43, and n. 16, the people of New York may well have thought that
they could no more amend 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.
[ Footnote 37 ] Property 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 ten 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 requirements
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, [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) ,
75] 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.
[ Footnote 38 ] Though 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 39-40 (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 39, without acknowledging Jefferson's
conclusion that the States were free to supplement the Qualifications Clauses. See
supra, at 31-32.
[ Footnote 39 ] Going 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-10-301.
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.,
Amdt. 73, 3; Calif. Elec. [ U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995)
, 78] 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 Nevada - enacted
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.
[ Footnote 40 ] Even if one were inclined to believe that the Arkansas Supreme [
U.S. TERM LIMITS, INC. v. THORNTON, ___ U.S. ___ (1995) , 81] 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, 466 U.S. 485, 501 , and n. 17 (1984)
(Stevens, J.).
[ Footnote 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. Page I