Qualifications for Representatives

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, Section 2, Clause 2

When Edmund Randolph of Virginia presented the Virginia Plan at the beginning of the Constitutional Convention, he suggested, among other things, that Representatives should meet certain qualifications. It was some time, however, before the delegates turned to the issue. When they had completed their consideration, the Framers had opted for only a few restrictions.

The Framers considered and rejected property, wealth, and indebtedness qualifications. On republican grounds, the Framers cut loose from the British practice of multiple qualifications and limitations. They settled on only three. First, there must be a minimum age of twenty-five years so that the office-holder would possess some modicum of life's experience to season his judgment. Second, a Representative must be a citizen for seven years, a compromise among widely different views, but seemingly long enough to prevent foreign nations from infiltrating the halls of Congress with persons holding alien allegiances. Third, the Member of the House must be an inhabitant of the state in which he is chosen, a change from "resident," which word might, according to James Madison, "exclude persons absent occasionally for a considerable time on public or private business." Although a Representative must be an inhabitant of the state in which he is chosen, according to the Constitution, he need not be an inhabitant of the district from which he is elected. When the Constitution was before the state ratifying conventions, delegates paid little attention to the issue of qualifications, and although disputes occasionally arose over the seating of a Member of the House, the clause attracted no judicial attention for nearly two centuries.

Judicial involvement in the clause did not occur until the latter part of the twentieth century. The question of whether the House of Representatives could, through Article I, Section 5, Clause 1, add to or define for itself what constituted "qualifications" reached the Supreme Court in Powell v. McCormack (1969). Finding that an elected Representative, Adam Clayton Powell, Jr., had engaged in serious misconduct, the House refused to seat him, even though Powell had met the formal qualifications of Article I, Section 2, Clause 2. In its decision, the Supreme Court held that Congress had no constitutional authority to alter the qualifications for Representatives as stated in the Constitution. So far as Congress was concerned, the constitutional qualifications were fixed. The Congress could not validly exclude Powell.

The Powell decision left open the question whether the states could add to the qualifications stated in the Constitution. Were the qualifications in the Constitution a floor on which the states could erect other requirements, or were they the sum of all qualifications, brooking no alteration from any source?

This issue came to a head in the 1990s when a popular movement to limit the terms of Members of Congress swept the country. In United States Term Limits v. Thornton (1995), the Court struck down those attempts. The Court ruled that the qualifications in the Constitution were in fact exclusive and could not be added to or altered.

In his opinion for the majority, Justice John Paul Stevens reaffirmed the historical argument in Powell that Congress did not have the power to alter the qualifications. He then extended that rationale to reach the issue Powell had not decided: whether any given state could impose additional qualifications. The Court held that the historical record demonstrated that the qualifications were exclusive in relation to the states as well. Stevens argued that Framers and early commentators, such as John Dickinson, James Madison, and Justice Joseph Story, thought that the states could not add additional qualifications, that the federal government was a creature of the people and not of the states, and that, consequently, the Members of the House of Representatives were accountable to the people and not to the states. He added that after ratification of the Constitution, the states retained the power to add certain qualifications for voters, such as property, but had no power to add qualifications for Representatives beyond what the Constitution prescribed. Quoting earlier cases and Alexander Hamilton, Stevens's central argument was "that the people should choose whom they please to govern them."

Justice Clarence Thomas, speaking for the four-person dissent, developed a contrary history and argued that the federal government was created by the people, not as a whole, but of the several states. Whatever powers not given to the federal government were thus retained by the states. Consequently, the states retained the power to add qualifications to Representatives elected within their respective jurisdictions. As Thomas noted, the text of the clause limits the power of Congress, not that of the states. In addition, neither in the Constitutional Convention nor in the state ratifying conventions was there a statement that the states could not add qualifications. The Court's majority, on the other hand, stated that creating qualifications for federal Representatives did not derive from the states and there was, consequently, no such power that was retained by the states.

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David F. Forte
Professor of Law
Cleveland-Marshall College of Law
Stephen Safranek
Ave Maria School of Law