Qualifications for Representatives

The Heritage Guide to the Constitution

Qualifications for Representatives

Article I, Section 2, Clause 2

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

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. As Justice Joseph Story wrote in his Commentaries on the Constitution of the United States (1833),

Among the American colonies antecedent to the revolution, a great diversity of qualifications existed; and the state constitutions, subsequently formed, by no means lessen that diversity. Some insist upon a freehold, or other property, of a certain value; others require a certain period of residence, and citizenship only; others require a freehold only; others a payment of taxes, or an equivalent; others, again, mix up all the various qualifications of property, residence, citizenship, and taxation, or substitute some of these, as equivalents for others.

But unlike the Elector Qualifications Clause (Article I, Section 2, Clause 1), which left the decision as to who could vote for U.S. Representatives with the respective states’ determination of who could vote for the most numerous body of the state legislature, the Framers settled on three defined qualifications for Representatives. First, they must be a minimum of twenty-five years of age so that the office-holders would possess some modicum of life’s experience to season their judgment. Second, a Representative must be a U.S. 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’ 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.

Joseph Story argued that the phrasing of the Qualifications Clause for Representatives and the similar clause for Senators (Article I, Section 3, Clause 3) had to be exclusive of other qualifications: “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.”

Story admitted that Thomas Jefferson had a different view, believing that the Constitution chose “the middle way,” by mandating “some disqualifications”—those dealing with age, state residency, and U.S. citizenship—while allowing the states to impose other, non-uniform disqualifications that are otherwise constitutional. But Story dismissed Jefferson’s view with the same argument that Justice Stevens was to use, namely, that adding qualifications was not “reserved” to the states when the Constitution was adopted.

Nonetheless, commentators have noted that the Court’s analysis in Powell and Thornton retains some problematical elements, for the Constitution does permit the addition of further qualifications or disqualifications from those stated in the Qualifications Clauses. For example, Article I, Section 6, Clause 2 disqualifies anyone while he holds any other federal office from becoming a Member of Congress. If the Senate impeaches someone, it can impose a disqualification from becoming a Member of Congress (Article I, Section 3, Clause 7). Senators or Representatives who meet the minimum requirements of age, U.S. citizenship, and state residency are still disqualified from serving if they refuse to take the constitutional oath of office (Article VI, Clause 3).

Moreover, the Constitution specifically refers to Senators and Representatives in forbidding the states from imposing any religious test for any federal office (Article VI, Clause 3). Textually, this would be an unnecessary prohibition if the Qualifications Clauses by themselves excluded states from imposing additional qualifications. Historically, states have imposed various requirements besides those listed in the Qualifications Clauses, such as disqualifying state judges from running for Congress, and the Supreme Court has upheld them if they are reasonable and do not violate specific guarantees, such as free speech. Lastly, beginning in 1842, Congress has passed legislation requiring states to elect Members of Congress by district, even though there is no such requirement in the Constitution. Even Justice Story had earlier opined that such an act was improper.

In the wake of U.S. Term Limits v. Thornton, there have been several challenges to state and federal laws on the basis that they constitute improper additional qualifications under Article I, Section 2, Clause 2, but few have been successful. However, in Campbell v. Davidson (10th Cir. 2000), a circuit court struck down a Colorado statute that prevented those who are ineligible to vote, such as felons, unregistered voters, and people residing outside the congressional district, from running for office. The court quoted Thornton in stating that election procedures could not “provide States with license to exclude classes of candidates from federal office.”

Most courts have distinguished between election procedures and qualification requirements. Thus, requiring a certain percentage of signatures in order to run for office is not a qualification, nor are filing fees, nor is the requirement that persons who are federal employees not run for office “in a partisan election” while they are employed. Another court declared the residency qualification is fulfilled on the day of election.

David F. Forte

Professor, Cleveland-Marshall College of Law

Roderick Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 52 U. Pitt. L. Rev. 97 (1991)

David Hays Lowenstein, Congressional Term Limits and the Constitution, in The Politics and Law of Term Limits 125–140 (Edward H. Crane & Roger Pilon eds., 1994)

Ronald D. Rotunda, Rethinking Term Limits for Federal Legislators in Light of the Structure of the Constitution, 73 Or. L. Rev. 561 (1994)

Ronald D. Rotunda & Stephen Safranek, An Essay on Term Limits and a Call for a Constitutional Convention, 80 Marq. L. Rev. 227 (1996)

Stephen Safranek, The Constitutional Case for Term Limits (1993)

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

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

Biener v. Calio, 361 F.3d 206 (3d Cir.), cert. denied, 543 U.S. 817 (2004)

Campbell v. Davidson, 233 F.3d 1229 (10th Cir. 2000

Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002)

Merle v. United States, 351 F.3d 92 (3d Cir. 2003)

Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006)