NOTICE: This opinion is subject to formal revision before
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SUPREME COURT OF THE UNITED STATES
--------
Nos. 93-1456 and 93-1828
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93-1456
U. S. TERM LIMITS, INC., et al., PETITIONERS
v.
RAY THORNTON et al.
93-1828
WINSTON BRYANT, ATTORNEY GENERAL OF
ARKANSAS, PETITIONER
v.
BOBBIE E. HILL et al.
on writs of certiorari to the supreme court of
arkansas
[May 22, 1995]
Justice Stevens delivered the opinion of the Court.
The Constitution sets forth qualifications for member-
ship 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
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 Repre-
sentatives 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 -fundamen-
tal 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 quota-
tion 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 Amend-
ment,- 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,
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 Arkan-
sas 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,
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.
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
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 incum-
bents from further service.- Id., at 265-266, 872 S. W.
2d, at 356-357. Justice Brown considered the possibili-
ties 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 restric-
tion on the States' ability to impose additional qualifica-
tions 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 mea-
sure that -merely makes it more difficult for an incum-
bent 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
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 restric-
tion 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 in a case involving an
attempted exclusion of a duly elected Member of Con-
gress. The principal issue was whether the power
granted to each House in Art. I, 5, to judge the
-Qualifications of its own Members- 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, 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
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 Resolu-
tion 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 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. In reaching that conclusion, we undertook a
detailed historical review to determine the intent of the
Framers. Though recognizing that the Constitutional
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 convic-
tion 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 king-
dom.'- 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
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). 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 -ex-
pressed concern that if a majority of the legislature
should happen to be `composed of any particular descrip-
tion 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.'-
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 under-
stood 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 prescrib-
ing 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 govern-
ment. . . . The qualifications of the persons who may
choose or be chosen, as has been remarked upon
other occasions, are defined and fixed in the Consti-
tution, 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 conven-
tions and found that they -also demonstrate the
Framers' understanding that the qualifications for
members of Congress had been fixed in the Constitu-
tion.- 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).
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.
POWELL'S RELIANCE ON DEMOCRATIC PRINCIPLES
In Powell, of course, we did not rely solely on an
analysis of the historical evidence, but instead comple-
mented 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. First,
we emphasized the egalitarian concept that the opportu-
nity to be elected was open to all. We noted in
particular Madison's statement in The Federalist that
-`[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 sover-
eignty 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. Simi-
larly, we observed that -[b]efore the New York conven-
tion . . . , 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
choose their own representatives must be limited to
those `absolutely necessary for the safety of the soci-
ety.'- 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 qualifi-
cations 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 Constitu-
tion-). Only two Terms ago we confirmed this under-
standing of Powell in Nixon v. United States, 506 U. S.
__ (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 exis-
tence of this separate provision specifying the only
qualifications which might be imposed for House
membership.- Id., at __ (slip op. at 12-13).
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
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-).
In sum, after examining Powell's historical analysis
and its articulation of the -basic principles of our
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 Consti-
tution prohibits additional qualifications imposed by
States. In the absence of such a constitutional prohibi-
tion, 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 appro-
priate 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
(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,
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 Constitu-
tion itself as the sole source of qualifications-). This
impressive and uniform body of judicial decisions and
learned commentary indicates that the obstacles con-
fronting 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
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 constitu-
tion, 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 contem-
plate -[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 unambigu-
ously 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
people.-
As we have frequently noted, -[t]he States unquestion-
ably 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 Mar-
shall 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
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.
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 Consti-
tution, 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 Conven-
tion 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 Legisla-
ture.- 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
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 qualifica-
tions for a representative, as they have for a presi-
dent. . . . It is no original prerogative of state power to
appoint a representative, a senator, or president for the
union.- Ibid.
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 Massa-
chusetts 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
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.
This conclusion is consistent with our previous recogni-
tion 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
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 represen-
tatives to the National Legislature was a new right,
arising from the Constitution itself. The Tenth Amend-
ment 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 constitu-
tional delegation to the States of power to add qualifica-
tions 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 unavoid-
ably to the conclusion that the States lack the power to
add qualifications.
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 constitu-
tions, 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 reason-
able 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
particular profession of religious faith.- Ibid.
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 discrimi-
nation 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
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-).
The Framers' discussion of the salary of representa-
tives 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
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 Hamil-
ton 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.
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 eligibil-
ity 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 Con-
gress the power to -make or alter- state election regula-
tions. 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 qualifi-
cations in the constitutional text was intended to
prescribe uniform rules that would preclude modification
by either Congress or the States.
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 qualifica-
tions is fully consistent with the understanding that
those qualifications are fixed in the Federal Constitution,
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 representa-
tives, 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 con-
tained no provision for rotation. 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.- Even propo-
nents of ratification expressed concern about the -aban-
donment in every instance of the necessity of rotation in
office.- At several ratification conventions, partici-
pants proposed amendments that would have required
rotation.
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 repre-
sent 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 respon-
sive 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.
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
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 unquestion-
ably 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 argu-
ments 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.
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
Elections noted:
-`The committee proceeded to examine the Consti-
tution, 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 qualifi-
cations 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).
The Chairman of the House Committee on Elections
elaborated during debate:
-`The Committee of Elections considered the qualifi-
cations of members to have been unalterably deter-
mined by the Federal Convention, unless changed by
an authority equal to that which framed the Consti-
tution 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 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 Represen-
tatives 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, commen-
tators 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 commen-
tators 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, Ameri-
can 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
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 qualifica-
tions 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- and that the precedential
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 Constitu-
tional structure. This egalitarian theme echoes through-
out 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 abili-
ties. . . . 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
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). 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 quali-
fications 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 qualifi-
cation's restrictive impact.
Finally, state-imposed restrictions, unlike the congres-
sionally 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
COLLECTIVE CAPACITIES, and as contradistinguished
from the INDIVIDUALS of whom they consist.- The
Federalist No. 15, at 108 (Hamilton). Thus the Fram-
ers, 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. 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
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 consider-
ation.- Ibid.
Consistent with these views, the constitutional struc-
ture 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 Govern-
ment and the people of the United States.
State Practice
Petitioners attempt to overcome this formidable array
of evidence against the States' power to impose qualifica-
tions by arguing that the practice of the States immedi-
ately 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
Warren 416-417. 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. Just 15 years after imposing a property qualifica-
tion, Virginia replaced that requirement with a provision
requiring that representatives be only -qualified accord-
ing 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.
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. As we have noted, some
members of the Convention had sought to impose term
limits for Members of Congress. In addition, many
States imposed term limits on state officers, four
placed limits on delegates to the Continental Con-
gress, and several States voiced support for term
limits for Members of Congress. Despite this wide-
spread 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.
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 qualifica-
tion, and that Amendment 73 is therefore consistent
with the Constitution.
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 chal-
lenged 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 under-
standing 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,
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 incum-
bents from further service.- 316 Ark., at 266, 872 S. W.
2d, at 357. 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 possibil-
ity for victory, especially for an entrenched incumbent.
One may reasonably question the merits of that conten-
tion. 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. Our prior
cases, too, have suggested that write-in candidates have
only a slight chance of victory. But even if petition-
ers 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- trivial-
izes the basic principles of our democracy that underlie
those Clauses. Petitioners' argument treats the Qualifi-
cations Clauses not as the embodiment of a grand
principle, but rather as empty formalism. -`It is
inconceivable that guaranties embedded in the Constitu-
tion 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 Amend-
ment 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
elections. 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-aggrandize-
ment and the upsetting of the delicate constitutional
balance. See supra, at 9-11, and n. 10, supra. Petition-
ers 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 disre-
gard 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 il-
lustrated the procedural focus of the Elections Clause by
noting that it covered -[w]hether the electors should vote
by ballot or viv- 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 ratifica-
tion 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).
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 Elec-
tions Clause, noting that
-there is no method of securing to the rich the
preference apprehended but by prescribing qualifica-
tions 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 (empha-
sis in original).
As Hamilton's statement suggests, the Framers under-
stood the Elections Clause as a grant of authority to
issue procedural regulations, and not as a source of
power to dictate electoral outcomes, to favor or disfavor
a class of candidates, or to evade important constitu-
tional 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,
25 (1972). In short, we have approved of state regula-
tions 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 posi-
tion. 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.
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 unconstitu-
tional 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
simply beside the point.
As to the second argument, we find wholly unpersua-
sive 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 offi-
cials, 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 argu-
ments on both sides of the question that were articu-
lated 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. Term
limits, like any other qualification for office, unquestion-
ably 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
changes in the electoral process-through the Amend-
ment procedures set forth in Article V. The Framers
decided that the qualifications for service in the Con-
gress 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.
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